1
EXHIBIT 10.34
[*] Confidential Treatment has been requested for certain portions of this
exhibit
INTERCOMPANY SOFTWARE LICENSE AGREEMENT
This INTERCOMPANY SOFTWARE LICENSE AGREEMENT is made as of January 6,
2000 (the "EFFECTIVE DATE") by and between xxxxxxxxx.xxx inc., a Delaware
corporation with offices at 00000 XxxXxxxxx Xxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxx
00000 ("ABT/US") and AUTOBYTEL.EUROPE LLC, a Delaware limited liability company
with offices at 00000 XxxXxxxxx Xxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000
("ABT/E").
WHEREAS, ABT/US is engaged in an Internet-based marketing business for
new and used vehicles in North America that provides Internet users with fast,
haggle-free, and courteous purchasing and related services designed to improve
consumers' overall vehicle buying experience (which includes such business as
now engaged in by ABT/US and as may be engaged in by ABT/US during the term of
this Agreement, and which includes but is not limited to the activities
described in section 1.24 of Exhibit A) (the "ABT/US BUSINESS"), and in
connection with such business has developed certain software, certain end user
documentation associated therewith and certain proprietary business procedures;
and
WHEREAS, the parties wish ABT/E to be able to carry on a similar
Internet-based marketing business in Europe through dealers or directly to users
for its own account or license NOCs (as defined below) to do the same on ABT/E's
behalf.
NOW, THEREFORE, the parties agree as follows:
1. LICENSE OF SOFTWARE, DOCUMENTATION, BUSINESS PROCEDURES AND
TRADEMARKS.
1.1 LICENSE.
(a) ABT/US hereby grants to ABT/E the perpetual, exclusive
right to (i) use the Software (in source code and object code format), Business
Procedures, Documentation and ABT Brand as described in Section 1.1(c); and (ii)
grant sublicenses ("SUBLICENSES") in substantially the form set forth in EXHIBIT
A for the purpose of operating a Local Business in one or more entire countries
in Europe (the "TERRITORY"). For avoidance of doubt, ABT/E may, in its
discretion, deliver the Software under each Sublicense in source code format,
object code format, or both. ABT/E may complete any blanks or "TBD" information
in each such Sublicense and attach the attachments contemplated therein, in each
case, in any way that is not directly in conflict with this Agreement and make
any other changes as may be requested by NOCs that are reasonable and customary,
provided such changes do not impose any material obligations or liabilities upon
ABT/US and that the resulting Sublicense is at least as protective of ABT/US'
intellectual property rights as EXHIBIT A. A "LOCAL BUSINESS" has the meaning
set forth in EXHIBIT A, with respect to any Territory in Europe. The word
"exclusive," as used in this Section 1, means that ABT/US shall not use in
connection with a Local Business for its own account, nor grant to any third
party the right to use or license the Software, Documentation, Business
Procedures or ABT Marks in connection with the operation of a Local Business in
the Territory, except as expressly provided in this Agreement;
-1-
2
(b) ABT/US hereby grants to ABT/E the exclusive right to
use the Software, Documentation and Business Procedures for the purpose of
providing technical, end user and sales support to NOCs, and to copy the
Software, Documentation and Business Procedures solely as necessary to do so.
(c) ABT/E may, in its sole discretion, elect to use the
Software, Documentation, Business Procedures and ABT Marks to operate a Local
Business in one or more entire countries in the Territory for its own account
(in lieu of granting a Sublicense to an NOC). In such case, ABT/E shall abide by
the obligations of Licensee under EXHIBIT A with respect thereto. For avoidance
of doubt, the ABT Marks shall be used only in connection with the use of the
Software, Documentation and Business Procedures for purposes of operating a
Local Business and shall not be used for purposes of marketing the Software,
Documentation and Business Procedures. The parties acknowledge that the
Software, Documentation, Business Procedures and ABT Marks, as currently in
existence, only have an established or known commercial value in connection with
the automotive industry.
(d) EXISTING AGREEMENTS. The license grants set forth in
this Section 1.1 are subject to any rights granted in the Existing Agreements.
The parties acknowledge that they will enter into a side letter or other
agreement (in addition to this Agreement) under which ABT/E will assume the
rights and obligations of ABT/US under the Existing Agreements.
1.2 DEFINITIONS. As used in this Agreement, the following words
have the following meanings:
(a) "SOFTWARE" means all the proprietary software products
used by ABT/US in the operation of the ABT/US Business during the term of this
Agreement. Software will include without limitation any Software delivered by
ABT/US under Section 1.3.
(b) "DOCUMENTATION" means all the electronic instructions,
manuals or other materials, including without limitation on-line help files,
regarding the development or use of the Software used by ABT/US in the operation
of the ABT/US Business during the term of this Agreement. Documentation will
include without limitation any Documentation delivered by ABT/US under Section
1.3.
(c) "BUSINESS PROCEDURES" means all the proprietary
business procedures for operating the ABT/US Business used by ABT/US in the
operation of the ABT/US Business during the term of this Agreement. Business
Procedures will include without limitation any Business Procedures delivered by
ABT/US under Section 1.3.
(d) "ABT MARKS" means all the trademarks, service marks
and logos used by ABT/US in the operation of the ABT/US Business during the term
of this Agreement, including without limitation the "Auto-By-Tel" and
"autobytel" marks, but excluding the marks "XxxxxxXxxxx.xxx" or "xxx0.xxx".
-2-
3
(e) "NOC" is a national operating company that operates or
intends to operate a Local Business through dealers or directly to users in one
or more entire countries in Europe pursuant to a Sublicense.
(f) "EXISTING AGREEMENTS" means the NOC agreements entered
into by ABT/US prior to the Effective Date, to wit, the License and Services
Agreements dated as of August 7, 1998 between ABT/US and Auto-By-Tel AB (with
respect to the territory of Sweden, Norway, Finland and Denmark) and the License
and Services Agreements dated as of November 28, 1998 between ABT/US and
AutobyTel UK Ltd. (with respect to the territory of the United Kingdom).
1.3 DELIVERY OF UPDATES AND UPGRADES. ABT/US shall promptly
deliver to ABT/E any and all releases or versions of the Software (in source
code and object code form to the extent available to ABT/US), Business
Procedures, or Documentation used by ABT/US in the operation of the ABT/US
Business during the term of this Agreement, including without limitation all
Error Corrections, Updates or Upgrades as such terms are used in EXHIBIT A.
2. DISCLAIMER AND RESERVATION OF RIGHTS. ABT/US hereby reserves all
rights not granted hereunder. ABT/US HEREBY DISCLAIMS ANY AND ALL WARRANTIES,
EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE AND BUSINESS
PROCEDURES except as are expressly provided for in this Agreement. ABT/US hereby
reserves all rights not explicitly granted under this Agreement.
3. SUPPORT. As between the parties, ABT/E will have the sole
responsibility to provide technical and end user support to NOCs. ABT/US will
have no obligation under this Agreement to provide any such support to ABT/E or
any NOC.
4. CONSIDERATION. In consideration of the exclusive, perpetual licenses
granted in Section 1, ABT/E shall issue to ABT/US certain shares of the equity
securities of ABT/E, pursuant to that certain Amended and Restated Operating
Agreement among ABT/E and certain other parties of even date herewith, and ABT/E
shall use its best efforts to maximize revenue from exploiting the rights
granted to ABT/E hereunder.
5. LICENSE BACK. ABT/E hereby grants to ABT/US, 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: (a) any and all Localized Versions (as such term
is defined in EXHIBIT A) (i) assigned or licensed to ABT/E under any Sublicense;
or (ii) prepared by or for ABT/E under Section 1.1(c); and (b) any and all
Extensions (as such term is defined in EXHIBIT A) (i) assigned or licensed to
ABT/E under any Sublicense or (ii) prepared by or for ABT/E under Section
1.1(c). ABT/E shall promptly upon completion or receipt of any such Derivative
Work or Extension, disclose such Derivative Work or Extension to ABT/US, in any
form reasonably requested by ABT/US.
6. TERM AND TERMINATION.
-3-
4
6.1 TERM. The term of this Agreement will commence on the
Effective Date and continue in perpetuity, unless earlier terminated pursuant to
this Section 6.
6.2 TERMINATION FOR DEFAULT. If either party materially defaults
in the performance of any of its material obligations hereunder and if any such
default is not corrected within 30 days after notice in writing, then the
non-defaulting party, at its option, may, in addition to any other remedies it
may have, thereupon terminate this Agreement by giving written notice of
termination to the defaulting party; provided however, no party will be deemed
to be in breach of this Agreement, and there shall be no termination for
default, during such time that a party makes diligent efforts to correct a
default which is capable of correction.
6.3 TERMINATION AND ASSIGNMENT IN THE EVENT OF CESSATION OF
BUSINESS OF ABT/E. In the event ABT/E (a) winds up or terminates its business,
or ceases business in the ordinary course; (b) 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 (c) becomes subject to any bankruptcy or insolvency
proceeding under federal, foreign, or state statutes, ABT/US shall immediately
assume all rights and obligations under all of the Sublicenses, and this
Agreement will immediately terminate.
6.4 EFFECT OF TERMINATION. The terms and conditions of Sections
2, 5, 8.1(d), 9, 10 and 11 will survive any termination or expiration of this
Agreement.
7. ENFORCEMENT. ABT/E shall promptly take all actions reasonably
requested by ABT/US in writing to enforce all Sublicenses with NOCs granted
hereunder, which actions include without limitation any lawsuits necessary or
appropriate to enforce any such Sublicense.
8. WARRANTIES.
8.1 ABT/US WARRANTY.
(a) PERFORMANCE. ABT/US represents and warrants to ABT/E
that during the term of this Agreement, the Software in the form delivered to
ABT/E will perform in substantial accordance with the Documentation in the form
delivered to ABT/E.
(b) YEAR 2000. ABT/US represents and warrants to ABT/E
that the Software in the form delivered to ABT/E is Year 2000 Compliant. "YEAR
2000 COMPLIANT" means that the Software, when used in accordance with the
Documentation and with the hardware and operating systems approved by ABT/US,
will: (i) initiate and operate; (ii) correctly store, represent and process
dates; and (iii) not cause or result in an abnormal termination or ending or
degradation of performance; when processing data containing dates in the year
2000 and in any preceding and following years, including leap years; provided
that there shall be no breach of this representation and warranty where the
failure of the Software to be Year 2000 Compliant is caused by or relates to any
third party products that exchange data with the Software.
(c) VIRUSES. ABT/US represents and warrants to ABT/E that
the Software, in the form delivered to ABT/E and on the media delivered to
ABT/E, does not contain any virus,
-4-
5
codes, commands or instructions that alter, delete, erase, damage, disable,
disrupt, or otherwise interfere with ABT/E's use of, the Software.
(d) REMEDY. If the Software does not perform as warranted
under Sections 8.1(a), 8.1(b), or 8.1(c), ABT/US shall, at no charge to ABT/E,
use reasonable efforts to correct the Software in accordance with ABT/US'
then-current escalation procedures, and deliver to ABT/E a corrected version of
the Software. The foregoing are ABT/E's sole and exclusive remedies for breach
of warranties. The warranty will apply only if the then-current version of the
Software has been properly installed and used at all times and in accordance
with the Documentation.
(e) AUTHORITY. ABT/US represents and warrants to ABT/E
that ABT/US 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/US represents and warrants to ABT/E that the execution and
performance of this Agreement by ABT/US will not conflict with any other
obligation of ABT/US.
8.2 ABT/E WARRANTY. ABT/E represents and warrants to ABT/US 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/US herein. ABT/E represents and warrants to ABT/US that the execution and
performance of this Agreement by ABT/E will not conflict with any other
obligation of ABT/E.
8.3 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH
IN SECTION 8.1 ABOVE, THE SOFTWARE, DOCUMENTATION, BUSINESS PROCEDURES AND ABT
MARKS ARE PROVIDED "AS-IS" AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE. ABT/US HEREBY DISCLAIMS ANY WARRANTY THAT THE
OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. ABT/US
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF NONINFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
SOFTWARE, DOCUMENTATION, BUSINESS PROCEDURES, ABT MARKS AND ANY PRODUCTS,
MATERIALS, OR SERVICES PROVIDED BY ABT/US HEREUNDER.
9. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY FOR THIRD PARTY CLAIMS ARISING OUT OF SECTION
10, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY 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.
10. INDEMNIFICATION FOR INFRINGEMENT
-5-
6
10.1 ABT/US INDEMNITY FOR INFRINGEMENT. ABT/US shall, at its
expense, defend or settle any claim, action or allegation brought against ABT/E
that the Software, Documentation, or Business Procedures, or the copying or use
thereof infringe any copyright, patent, 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/US of any such claim, action or allegation of infringement and gives ABT/US
the authority to proceed as contemplated herein. ABT/US 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/US.
ABT/E shall give such assistance and information as ABT/US may reasonably
require to settle, or oppose such claims. In the event any such infringement,
claim, action or allegation is brought or threatened, ABT/US shall:
(a) at its sole option and expense, procure for ABT/E the
right to continue copying, using and sublicensing of the Software,
Documentation, or Business Procedures as described in Section 1; or
(b) at its sole option and expense, modify or amend the
Software, Documentation or Business Procedures or infringing part thereof, or
replace the Software, Documentation or 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/US, or the combination of the Software with any
materials or technology not supplied by ABT/US. The foregoing states the entire
liability of ABT/US with respect to infringement of any patent, copyright,
trademark, trade secret or other proprietary right.
10.2 ABT/E INDEMNITY. ABT/E shall, at its expense, defend or
settle any claim, action or allegation brought against ABT/US (to the extent not
covered by Section 10.1) 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 any NOC,
or those that arise from a third party allegation that any Localized Version or
Extension 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/US 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/US may not settle or compromise such claim, action or
allegation, except with the prior written consent of ABT/E. ABT/US 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/US the right to continue use of the
Localized Version or Extension or infringing part thereof; or
-6-
7
(b) modify or amend the Localized Version or Extension or
infringing part thereof, or replace the Localized Version or Extension or
infringing part thereof with other materials having substantially the same or
better capabilities.
10.3 PROSECUTION OF INFRINGERS. ABT/US and ABT/E shall give each
other written notice of any acts of infringement by third parties involving
intellectual property rights relating to the Localized Version, Extensions,
Software, Documentation, Business Procedures, or ABT Marks anywhere in the
Territory of which ABT/US or ABT/E has knowledge, and the parties shall consult
together with a view to determine the course of action, if any, to be taken in
such circumstances. ABT/US will have the right to take action to enforce such
rights. If the parties are unable to agree on any such course of action to be
taken, then ABT/US shall 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
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.
11. NON-DISCLOSURE.
11.1 DEFINITION. "CONFIDENTIAL INFORMATION" means any information
disclosed by either party to the other party, either directly or indirectly, in
writing, orally or by inspection of tangible objects (including without
limitation documents, prototypes, samples, plant and equipment), which is
designated as "Confidential," "Proprietary" or some similar designation.
Information communicated orally will be considered Confidential Information if
such information is confirmed in writing as being Confidential Information
within a reasonable time after the initial disclosure. Confidential Information
may also include information disclosed to a disclosing party by third parties.
Confidential Information will not, however, include any information which (i)
was publicly known and made generally available in the public domain prior to
the time of disclosure by the disclosing party; (ii) becomes publicly known and
made generally available after disclosure by the disclosing party to the
receiving party through no action or inaction of the receiving party; (iii) is
already in the possession of the receiving party at the time of disclosure by
the disclosing party as shown by the receiving party's files and records
immediately prior to the time of disclosure; (iv) is obtained by the receiving
party from a third party without a breach of such third party's obligations of
confidentiality; (v) is independently developed by the receiving party without
use of or reference to the disclosing party's Confidential Information, as shown
by documents and other competent evidence in the receiving party's possession;
or (vi) is required by law, court order, or other legal process to be disclosed
by the receiving party, provided, to the extent practicable, that the receiving
party gives the disclosing party prompt written notice of such requirement prior
to such disclosure and assistance in seeking an order protecting the information
from public disclosure. Confidential Information of each party will include
without limitation the Software, Documentation, and Business Procedures, whether
or not so marked.
11.2 MAINTENANCE OF CONFIDENTIALITY. Each party agrees not to
disclose any Confidential Information of the other party to third parties,
except with such other party's prior written consent. The foregoing will not
prohibit ABT/E from disclosing information that it is
-7-
8
required to disclose under any Sublicense. Each party shall take reasonable
measures to protect the secrecy of and avoid disclosure of the Confidential
Information of the other party. Without limiting the foregoing, each party shall
take at least those measures that it takes to protect its own most highly
confidential information and shall ensure that its employees who have access to
Confidential Information disclosed by the other party have signed a
non-disclosure agreement in content similar to the provisions hereof, prior to
any disclosure of Confidential Information to such employees.
12. MISCELLANEOUS. No amendment or modification hereof will be valid or
binding upon the parties unless made in writing and signed by the duly
authorized representatives of both parties. The relationship of the parties
hereunder is that of independent contractors, and this Agreement will not be
construed to imply that either party is the agent, employee, or joint venturer
of the other. In the event that any provision or provisions of this Agreement is
be held to be unenforceable, this Agreement will continue in full force and
effect without said provision and will be interpreted to reflect the original
intent of the parties. This Agreement will be governed by the laws of the State
of California, without regard to its conflict of laws principles. The parties
consent to the personal and exclusive jurisdiction of courts located in
California. ABT/E may not assign or otherwise transfer this Agreement (by
operation of law or otherwise) without the prior written consent of ABT/US;
however, ABT/E may assign all rights and obligations under this Agreement to a
wholly-owned subsidiary of ABT/E, and ABT/E hereby guarantees the performance by
such wholly-owned subsidiary of the obligations of this Agreement. Any
prohibited assignment or sublicense will be null and void. Subject to the
foregoing, this Agreement will be binding upon and will inure to the benefit of
the parties' permitted successors and/or assignees. Waiver by either party of a
breach of any provision of this Agreement or the failure by either party to
exercise any right hereunder will not operate or be construed as a waiver of any
subsequent breach of that right or as a waiver of any other right.
The parties have executed this Agreement below to indicate their
acceptance of its terms:
XXXXXXXXX.XXX INC. AUTOBYTEL.EUROPE LLC
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxx
Title: Executive Vice President Title: Chairman
Print Name: Xxxxxx X. Xxxxxx Print Name: Xxxx X. Xxxxxxx
Date: January 6, 2000 Date: January 6, 2000
-8-
9
EXHIBIT A
ABT EUROPE LLC
LICENSE AND SERVICES AGREEMENT
This LICENSE AND SERVICES AGREEMENT (this "AGREEMENT") is entered into
as of _______________, _______, (the "EFFECTIVE DATE") by and between
Autobytel.Europe LLC, a Delaware limited liability company with offices at
offices at 00000 XxxXxxxxx Xxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 ("ABT"),
and _______________________, a corporation organized under the laws of
__________________ with offices at _____________ ("LICENSEE").
BACKGROUND
WHEREAS, xxxxxxxxx.xxx inc. is engaged in an Internet-based marketing
business for new and used vehicles that provides Internet users with fast,
haggle-free, and courteous purchasing and related services designed to improve
consumers' overall vehicle buying experience, and has granted to ABT the right
to grant sublicenses of certain software, documentation and business procedures
useful in the operation of such a business to ABT's licensees in Europe;
WHEREAS, Licensee desires to engage in the operation of a Local Business
(as defined below) in the Territory (as defined below) using the Software,
Documentation and Business Procedures of xxxxxxxxx.xxx inc. (all as defined
below).
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 "Auto-By-Tel" and "autobytel"
trademarks, service xxxx and logo, and the Licensee Domain, and does not include
the xxxx "XxxxxxXxxxx.xxx" or "xxx0.xxx."
1.2 "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. Notwithstanding the above, ABT shall not be deemed an Affiliate of
Licensee and vice versa.
-1-
10
1.3 "BANNER ADVERTISEMENT" means any image displayed on a web
page associated with the Local Business that is intended to serve as an
advertisement for a product, service or web page.
1.4 "BUSINESS PROCEDURES" means the proprietary business
procedures for operating the Local Business described on ATTACHMENT B, and any
updates or new revisions thereof provided by ABT from time to time in its sole
discretion.
1.5 "COMMERCE BUTTON" means any image displayed on a web page
associated with the Local Business that points to an electronic commerce site
through which a User can purchase goods or services.
1.6 "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, object code and machine-readable copies of the Software, Business
Procedures, and any other proprietary information disclosed by one party to the
other.
1.7 "CONSUMER PRICE INDEX" means the Consumer Price Index, for
All Urban Consumers, Subgroup ?All Items?, for the Los Angeles-Riverside-Orange
County Area (Base Year 1982-84=100), which is currently being published by the
United States Department of Labor, Bureau of Labor Statistics. If, however, this
Consumer Price Index is changed so that the base year is altered from that used
as of the Commencement Date, then the Consumer Price Index will be converted in
accordance with the conversion factor published by the United States Department
of Labor, Bureau of Labor Statistics, to obtain the same results that would have
been obtained had the base year not been changed. If no conversion factor is
available or if the Consumer Price Index is otherwise changed, revised or
discontinued for any reason, the term "Consumer Price Index" will thereafter
refer to the most nearly comparable official price index of the United States
Government to obtain substantially the same result as would have been obtained
had the original Consumer Price Index not been changed, revised or discontinued.
1.8 "CONTRACT MONTH" means a period of 1 month which period
commences upon the Effective Date; or the same day of each month thereafter
during the Term.
1.9 "CONTRACT YEAR" means a period of 4 consecutive three-month
periods commencing on the Effective Date or the anniversary thereof.
1.10 "DERIVATIVE WORK" means a derivative work within the meaning
of 17 U.S.C. Section 101 of the U.S. copyright law.
1.11 "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 by ABT under this Agreement.
1.12 "DRT" means the Dealer Real Time System (i.e., ABT's online
dealer communication system) portion of the Software.
-2-
11
1.13 "ERROR CORRECTION" means a release or version of the
Software containing corrections or fixes of Errors which may be indicated by a
change in the numeric identifier to the Software in the digit to the right of
the decimal.
1.14 "ERROR" means a material, reproducible failure of the
Software to perform in substantial conformity with the functional specifications
in the Documentation.
1.15 "FEES" mean all fees payable to ABT hereunder. Fees include
the following: Initial Transfer Fee, Minimum Annual License Fees, Minimum
Maintenance Fees, Localization and Development Fees, Data Center Fees, and
Product Management Fees, all as defined in Section 5.
1.16 "MINIMUM ANNUAL FEES" are the Minimum Annual License Fees
plus the Minimum Annual Maintenance Fees.
1.17 "FISCAL QUARTER" means a period of 3 consecutive calendar
months which period commences upon the Launch Date, or 3, 6, or 9 months
thereafter; or the anniversary of any of the foregoing.
1.18 "FISCAL YEAR" means a period of 4 consecutive Fiscal
Quarters commencing on the Launch Date or the anniversary thereof.
1.19 "GLOBAL BRAND PROTOCOLS" means the procedures for use of the
ABT Brand set forth on ATTACHMENT C, along with any revisions thereof provided
by ABT from time to time in its sole discretion.
1.20 "GROSS REVENUES" means all payments actually received by
Licensee with regard to the Local Business, including without limitation fees
received from dealers for participating in the Internet referral system,
payments received from dealers as a result of Internet inquiries referred to
them, sums received as payments for advertising on internet sites which are part
of the Local Business, gross revenues from providing maintenance of, and
training regarding, the DRT, and all other revenues arising directly out of the
Local Business.
1.21 "INITIAL TRANSFER FEE" means the fee so described in
ATTACHMENT A.
1.22 "LAUNCH DATE" means the first date Licensee makes the World
Wide Web site for the Local Business generally available on the World Wide Web;
but in no event later than __________.
1.23 "LICENSEE DOMAIN" means the Uniform Resource Locator
"____________."
1.24 "LOCAL BUSINESS" means an internet-based business operated
in the Territory under the Business Procedures that performs the following
functions and provides the following information, products, and services related
to new and pre-owned vehicles in the Territory:
- Enrolling Participating Dealers;
-3-
12
- Providing information regarding: (a) pricing, (b) vehicle specifications,
(b) after-market items, (c) financial, insurance, and warranty products, (d)
ancillary products or services, and (e) other information;
- Allowing Users to submit purchase requests for the sale or lease of
vehicles;
- Routing Users' purchase requests to Participating Dealers;
- Routing Users' requests for: (a) after-market items, (b) financial,
insurance, or warranty products, or (c) ancillary products or services to
Participating Dealers or Participating Vendors, as applicable, for
fulfillment;
- Providing auctions that allow Users and/or Participating Dealers to
purchase, sell, or lease vehicles;
- Allowing Users or Participating Dealers to submit requests for the purchase,
sale, or lease of fleets of vehicles; and
- Issuing service notices, whether electronically or otherwise, to remind
Users who purchase or lease vehicles through the Local Business that the
vehicle is due for servicing.
- The Local Business also shall include any additional automotive-related
functions, information, products, or services authorized by ABT in its sole
discretion.
1.25 "LOCALIZE, or LOCALIZATION" means any modifications to the
Software, Documentation or Business Procedures necessary to facilitate the
operation and functionality of the Software, Documentation 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.
1.26 "LOCALIZED VERSION" means a Derivative Work of the Software
and Business Procedures that implements the core functionality of the Software
and Business Procedures, but incorporates the language, currency and functional
variations for the Territory, which Derivative Works are in each case created
for use of Licensee.
1.27 "NOC" means a national operating company that operates or
intends to operate a Local Business through dealers or directly to users in a
territory in Europe pursuant to a license similar to this Agreement.
1.28 "PARTICIPATING DEALER" means a vehicle dealer with showrooms
and/or vehicle lots located in the Territory, who meets the criteria set forth
in the Business Procedures and is bound by a subscription agreement.
1.29 "PARTICIPATING VENDOR" means an individual or entity
authorized by ABT to provide: (a) after-market items, (b) financial, insurance,
or warranty products, or (c) other products or services in the Territory.
-4-
13
1.30 "SOFTWARE" means the proprietary software products specified
on ATTACHMENT A hereto, in the form existing as of the Effective Date, together
with any Error Corrections, Updates or Upgrades thereof provided to Licensee
pursuant to this Agreement.
1.31 "TERRITORY" means ____________ as constituted on the
Effective Date.
1.32 "UPDATE" means a release or version of the Software,
containing minor functional enhancements, extensions, error corrections or
fixes, which may be indicated by a change in the numeric identifier to the
Software in the digit to the right of the decimal.
1.33 "UPGRADE" means any version of the Software, designated as
such by ABT, which contains new functionality or significantly enhanced
operation and may be indicated by a change in the numeric identifier to the
Software in the digit to the left of the decimal.
1.34 "USER" means an individual or entity who uses the World Wide
Web site of the Local Business.
2. GRANT OF LICENSE
2.1 LICENSE. Subject to the terms and conditions of this
Agreement, ABT hereby grants to Licensee:
(a) an exclusive, non-transferable license in the
Territory to copy and create Derivative Works of the Software, Documentation,
Business Procedures and Derivative Works thereof, in each case solely for the
development of a Localized Version. In this Section 2.1(a), "exclusive" means
that ABT shall not for its own account, nor grant to any third party in the
Territory a license to create Derivative Works of the Software, Business
Procedures or Documentation in order to create a Localized Version in connection
with the operation of a Local Business.
(b) an exclusive, non-transferable license to use the
Software, Documentation, or Business Procedures in connection with the operation
of the Local Business; provided, however, that Licensee will not have the right
to use the Software with respect to vehicle dealers outside the Territory; and
provided that Licensee operates the Local Business solely in accordance with the
Business Procedures. In this Section 2.1(b), "exclusive" means that ABT shall
not for its own account, nor grant to any third party in the Territory a license
to, use the Software, Documentation, or Business Procedures in connection with
the operation of a Local Business.
(C) LICENSING OF DRT. The parties acknowledge that, for
the avoidance of doubt, notwithstanding the exclusive license grants herein, ABT
reserves the right to license the right to use the DRT to any third party.
2.2 SUBLICENSES. Licensee may grant non-exclusive sublicenses to vehicle
dealers in the Territory to use copies of the DRT in object code format, solely
for use in connection with the Local Business, and solely in connection with an
end user license in substantially the form set forth
-5-
14
in ATTACHMENT F. Licensee may not grant sublicenses of the rights granted in
Section 2.1 except with the prior written approval of ABT.
2.3 COPIES. ABT shall deliver to Licensee, as soon as
practicable, one copy of the Software, one copy of the related Documentation and
one (1) copy of the Business Procedures. Licensee will be entitled: (a) to make
one copy of the Software solely for backup or archival purposes, (b) to retain
one copy of the Software for production purposes, and (c) to make and retain
such copies of the Software as reasonably necessary for Licensee to use the
Software in connection with the Local Business; provided, however, that Licensee
shall immediately advise ABT of any such copies made and their location. Except
as otherwise set forth herein, Licensee may not copy, distribute, reproduce, use
or allow access to the Software, Documentation, or Business Procedures. Whenever
Licensee is permitted to copy or reproduce all or any part of the Software,
Documentation, or Business Procedures, all titles, trademark symbols, copyright
symbols and legends, and other proprietary markings must be reproduced. Licensee
shall not alter or remove any of ABT's trademarks, copyright notices or other
proprietary notices affixed to the Software, Documentation, or Business
Procedures by ABT.
2.4 OWNERSHIP. As between the parties, ABT owns all right, title
and interest in and to the Software, Documentation, or Business Procedures,
together with any Localized Version or other modifications to the Software,
Documentation, or Business Procedures made by ABT in connection with
Localization of the Software, Documentation, or Business Procedures. The
licenses granted herein transfer to Licensee 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. Effective
upon development of any Localized Version by Licensee, Licensee hereby grants to
ABT an exclusive, irrevocable license in such modifications, which includes the
right to transfer, sublicense and to create Derivative Works. Upon termination
of this Agreement and the license granted to Licensee in this Agreement, the
above license will become non-exclusive and perpetual. Except as otherwise set
forth in the applicable Work Order for the Localization services (as such term
is defined in the "SERVICES AGREEMENT" in ATTACHMENT D), with respect to any
modifications that are not Derivative Works of the Software or Business
Procedures and that contain no part of the Software or Business Procedures (such
modifications to be referred to as "EXTENSIONS"), effective upon development of
any Extension, Licensee hereby grants to ABT an exclusive, irrevocable license
in such Extensions, which includes the right to transfer, sublicense and to
create Derivative Works. Upon termination of this Agreement, the above license
will become non-exclusive and perpetual.
2.5 SOFTWARE AND BUSINESS PROCEDURE LOCALIZATIONS AND EXTENSIONS.
As between the parties, Licensee 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 Extensions, must be approved by ABT prior to development and
implementation, as set forth in this Section. Except as otherwise agreed by the
parties, all such Localization changes and the development of any Extensions
must be performed by ABT in accordance with Section 3.2. Upon completion of any
Localized Version or Extension (other
-6-
15
than by ABT), Licensee must disclose to ABT a copy of such Localized Version or
Extension. Any such disclosure of Localized Software or Extension must be in
source code format.
2.6 UPDATES AND UPGRADES. During the Term, and subject to
Licensee's payment to ABT of the Minimum Maintenance Fees and Maintenance and
Support Fees set forth in Sections 5.3 and 6.2 below, ABT will deliver to
Licensee any Error Corrections, Updates or Upgrades to the Software or Business
Procedures that it releases to any of ABT's other NOCs. Licensee shall implement
all Error Corrections, Updates, or Upgrades provided by ABT under this
Agreement, no later than 6 months after delivery thereof to Licensee.
Notwithstanding the above, ABT will not be obligated to provide such Error
Corrections, Updates or Upgrades during the period during which, in the
reasonable discretion of ABT's project manager, they are in release for testing
purposes or otherwise not suitable for release outside the United States.
2.7 LICENSE RESTRICTIONS. Licensee shall not:
(a) sell, lease, license, sublicense or distribute the
Software, Documentation, or Business Procedures except in accordance with this
Agreement;
(b) provide, disclose, divulge or make available to, or
permit use of the Software, Documentation, or Business Procedures by any third
party without ABT's prior written consent, except as specifically authorized by
this Agreement; or
(c) use the Software, Documentation or Business Procedures
for any purpose except as expressly provided for in this Agreement.
2.8 THIRD PARTY TECHNOLOGY. The parties acknowledge that certain
software, equipment, or technology of third parties, including, without
limitation, server equipment, server software, and database software, may be
required to operate the Software. ABT shall cooperate reasonably with Licensee
to identify any such third-party technology, but ABT will not be obligated to
provide any such third party technology to Licensee.
2.9 SCOPE OF LOCAL BUSINESS. Licensee acknowledges that the
licenses granted in this Agreement apply only to the Local Business as defined
herein, and as operated according to the Business Procedures, and that Licensee
does not receive under this Agreement the right to use the ABT Brand, Software,
Documentation, Business Procedures, and Derivative Works thereof in connection
with any other activities. Licensee shall operate the Local Business solely in
accordance with the definition herein. In the event that ABT adds activities
("ADDITIONAL ACTIVITIES") to the definition of the Local Business, ABT shall
notify Licensee, and Licensee shall promptly implement the Additional
Activities; provided, however, that ABT may waive such obligation in its sole
discretion.
3. OBLIGATIONS.
3.1 DELIVERY. No later than ______ days after the Effective Date,
ABT shall deliver to Licensee one (1) copy of the Software, Business Procedures,
and Documentation, in the form such materials exist as of the Effective Date.
For avoidance of doubt, Licensee acknowledges that such
-7-
16
materials will not be Localized before delivery, and nothing in this Agreement
will obligate ABT to deliver any Localized Software, Business Procedures, or
Documentation, prior to or after the Launch Date, unless and until so agreed by
the parties hereto under Section 3.2.
3.2 SERVICES. Upon mutual agreement, ABT may, from time to time,
perform services and provide support to Licensee that will be subject to the
"SERVICES AGREEMENT" set forth in ATTACHMENT D. Such services may include
Localization services; however, the parties acknowledge that the business
requirements and web functionality for the Local Business must be determined by
Licensee prior to commencement of the Localization services, if any.
(a) In addition to the compensation set forth in the
Services Agreement, Licensee shall reimburse ABT for the reasonable actual
travel and living expenses of ABT's personnel engaged in performing the Services
at locations other than ABT's facilities, together with other reasonable
out-of-pocket expenses incurred in connection with the performance of such
Services, subject to ABT's adherence to any travel policy reasonably promulgated
by Licensee.
(b) Licensee shall pay ABT for any Services provided under
this Section 3.2 in accordance with the payment terms set forth in the "SERVICES
AGREEMENT" in ATTACHMENT D.
3.3 SCOPE OF SERVICES. The parties currently anticipate that the
Services that may be performed in accordance with Section 3.2 may include the
following. However, nothing in this Section 3.3 will be deemed to create any
binding obligation on either party.
(a) Hardware selection and configuration consulting
services;
(b) Business model conversion support for software systems
and operating procedures;
(c) Marketing, sales and information technology training;
(d) Support for training of vehicle dealers in the use of
the DRT portions of the Software; and
(e) Business Procedures marketing support, including
support regarding know-how, cooperative advertising or other co-marketing
activities.
3.4 LICENSEE OBLIGATIONS. Licensee shall operate the Local
Business solely in accordance with the Business Procedures. Licensee shall
operate the Local Business solely in accordance with the laws, regulations, and
other requirements of the Territory. During the Term, Licensee will devote
sufficient resources and personnel to the Local Business to market, promote and
operate the Local Business. Licensee will be responsible for training vehicle
dealers in the use of the DRT portions of the Software and will be solely
responsible for all costs and expenses related to the marketing, promotion and
operation of the Local Business and for performing its obligations hereunder.
Licensee will ensure that only properly trained and qualified persons perform
Licensee's technical obligations under this Agreement.
-8-
17
3.5 HYPERLINKS. On and after the first date Licensee makes the
World Wide Web site for the Local Business generally available on the World Wide
Web: (a) ABT shall display a hypertext link on its Web page at the location
where ABT provides links to the NOCs, pointing toward Licensee's home Web page
for the Local Business; and (b) Licensee shall display a hypertext link on the
home Web page for the Local Business pointing to such location.
3.6 TERRITORY AND SALES. The parties acknowledge that Licensee
may from time to time receive inquiries or orders for sales of products or
services from persons outside the Territory. In such case, Licensee shall refer
such inquiries only to ABT, and shall not act on such inquiries except upon
ABT's instructions. ABT shall prepare guidelines, whose content will be
determined in ABT's sole discretion, to address any such inquiries, and shall
apply the guidelines generally to its licensees. ABT intends that such
guidelines will be prepared in accordance with applicable national law and
European Community law and with the goal of maximizing consumer satisfaction for
customers of ABT's licensees. ABT shall instruct its licensees to respond to
such inquiries in accordance with such guidelines.
3.7 REPORTS.
(a) LICENSEE. No less frequently than each month, as
reasonably requested by ABT, Licensee will provide to ABT, in a format
reasonably acceptable to ABT, a summary report of business data regarding
Licensee's operation of the Local Business. Such data will include, but is not
limited to, purchase request and finance request information (including the
number of such requests received), other consumer information (including without
limitation name, address, e-mail address, phone number, and the like, in the
form and to the extent known to Licensee), Web statistics, and revenue data, as
required for the ABT global data warehouse and reporting system.
(b) ABT. In conjunction with ABT's payment obligations
under Section 3.8 and on the schedule set forth therein, ABT shall provide
Licensee with a report of revenues generated by the sale of Banner Advertising
and Commerce Buttons related to the Local Business.
3.8 BANNER ADVERTISING AND COMMERCE BUTTONS. The rights and
obligations related to Banner Advertising and Commerce Buttons will be allocated
between ABT and Licensee as follows: The parties agree that the solicitation of
Banner Advertising and Commerce Buttons by ABT on behalf of all Autobytel web
sites worldwide is likely to be more efficient and generate more revenue than
the solicitation of Banner Advertising by the parties individually. Therefore,
Licensee hereby appoints ABT as its exclusive agent to solicit all sales of
Banner Advertising and Commerce Buttons, which appointment includes without
limitation the power to engage advertising agents or sales representatives to
solicit such advertising. ABT will use reasonable efforts to maximize the
revenue generated by such sales. As between the parties, ABT shall collect all
revenues for such sales. No later than 45 days after the end of each Fiscal
Quarter ABT shall pay to Licensee ____% of revenues received from the sale of
such Banner Advertising and Commerce Buttons related to the Local Business and
received by ABT, net of commissions, taxes, and out-of-pocket expenses for such
Fiscal Quarter. ABT may use any unsold Banner Advertising inventory on hand five
days prior to the commencement of each calendar month to advertise ABT, its
Affiliates or other licensees of ABT.
-9-
18
3.9 DATA. Subject to local law, Licensee shall collect data
regarding visitors to the World Wide Web site for the Local Business, and their
use of such site, as reasonably requested by ABT. Both Licensee and ABT may use
and disclose such data, subject to applicable law and the provisions of this
Section 3.9, for its own account or for the account of third parties. Licensee
shall report such data to ABT on a monthly basis. Such reporting will be in a
reasonable format. If ABT provides data to any third party, ABT shall pay to
Licensee a percentage of the net amounts received by ABT therefor, as follows:
(a) AGGREGATED DATA. For data that is disclosed in
aggregate, i.e., in such a fashion that the individual visitor is not identified
by name, ABT shall pay Licensee 50% of net revenues received by ABT that is
applicable to the Local Business; however, in the event that such aggregated
data includes data provided by a party or parties other than Licensee, ABT may
pro-rate the fees payable to Licensee and such other party in a reasonable
fashion.
(b) DISAGGREGATED DATA. For data that is not disclosed in
aggregate, i.e., in such a fashion that the individual visitor is identified by
name, ABT shall pay Licensee 66.6% of net revenues received by ABT that is
applicable to the Local Business; however, in the event that data with respect
to an individual visitor is identified by a party or parties other than
Licensee, ABT may pro-rate the fees payable to Licensee and such other party in
a reasonable fashion.
3.10 CONSUMER DATA. Without limiting the provisions in Section
10, Licensee shall not disclose to any vehicle manufacturer those customers of
the Local Business who have made purchase requests for vehicles of another
vehicle manufacturer in such a fashion that the disclosure identifies the
customer's name, address, or other identifying information.
3.11 PRODUCTS AND SERVICES OF CERTAIN SHAREHOLDERS OF ABT. Each
member of ABT that becomes a member of ABT and owns at least 10,000 units of ABT
on January 31, 2000 (each, an "ABT Owner") will have the right to offer
automotive-related products and services on the website of Licensee, on a
nonexclusive arm's-length commercial basis, provided that:
(a) the entity selling such products or services is an ABT
Owner or a bona fide Affiliate thereof;
(b) an ABT Owner may nominate only one entity to offer
such products and services for the Territory or each country in the Territory,
to the extent the Territory includes more than one country, for such preferred
access;
(c) the offered products or services will not include the
sale or lease of new or used vehicles or detract from the functionality or user
friendliness of the website of Licensee; and
(d) the terms and conditions for Licensee will be
substantially the same as those offered other entities providing similar
products or services on the website of Licensee.
4. WARRANTY AND DISCLAIMER
4.1 ABT WARRANTY.
-10-
19
(a) PERFORMANCE. ABT represents and warrants to Licensee
that during the Term, the Software in the form delivered to Licensee will
perform in substantial accordance with the Documentation.
(b) YEAR 2000. ABT represents and warrants to Licensee
that the Software in the form delivered to Licensee is Year 2000 Compliant.
"YEAR 2000 COMPLIANT" means that the Software, when used in accordance with the
Documentation and with the hardware and operating systems approved by ABT, will:
(i) initiate and operate; (ii) correctly store, represent and process dates; and
(iii) not cause or result in an abnormal termination or ending or degradation of
performance; when processing data containing dates in the Year 2000 and in any
preceding and following years, including leap years; provided that all third
party products that exchange date data with the Software do so in a form and
format compatible with the Software.
(c) VIRUSES. ABT represents and warrants to Licensee that
the Software, in the form delivered to Licensee and on the media delivered to
Licensee, does not contain any virus, codes, commands or instructions that
alter, delete, erase, damage, disable, disrupt, or otherwise interfere with
Licensee's use of, the Software.
(d) REMEDY. If the Software does not perform as warranted
under Sections 4.1(a), 4.1(b), or 4.1(c), ABT shall, at no charge to Licensee,
use reasonable efforts to correct the Software in accordance with the escalation
procedures in ATTACHMENT E, and include the correction thereof in the next Error
Correction released by ABT and provided to Licensee under Section 6.2. The
foregoing are Licensee's sole and exclusive remedies for breach of warranties.
The warranty will apply only if the then-current version of the Software has
been properly installed and used at all times and in accordance with the
Documentation.
(e) AUTHORITY. ABT represents and warrants to Licensee
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 Licensee herein.
(f) SERVICES. ABT represents and warrants to Licensee that
all Services performed by ABT under this Agreement will be performed in a
professional manner consistent with industry standards. In the event of a breach
of such warranty, ABT shall re-perform the non-conforming services at no charge.
The foregoing is Licensee's sole and exclusive remedy for breach of such
warranty.
4.2 LICENSEE WARRANTY. Licensee represents and warrants to ABT
that Licensee 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. Licensee represents and warrants to ABT that Licensee is
sufficiently capitalized to undertake the business transaction contemplated
hereunder.
4.3 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH
IN SECTION 4.1 ABOVE, THE SOFTWARE, DOCUMENTATION AND BUSINESS PROCEDURES ARE
PROVIDED "AS-IS" AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE. ABT HEREBY
-11-
20
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, BUSINESS PROCEDURES AND ANY SERVICES
PROVIDED BY ABT HEREUNDER.
4.4 ADDITIONAL DISCLAIMER. The success of the business venture
contemplated to be undertaken by Licensee by virtue of this Agreement is
speculative and depends, to a large extent, upon the ability of Licensee as an
independent business operator and the active participation of Licensee 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. COMPENSATION.
5.1 MINIMUM ANNUAL LICENSE FEE. In consideration of the licenses
granted herein, Licensee shall pay to ABT the minimum license fee specified on
ATTACHMENT A ("MINIMUM ANNUAL LICENSE FEE"). The Minimum Annual License Fee will
be payable as indicated in ATTACHMENT A.
5.2 ADDITIONAL LICENSE FEES. In consideration of the licenses
granted herein, no later than 90 days after the end of each calendar quarter
during the Term, Licensee shall pay to ABT [*] of any Gross Revenues booked by
Licensee during such quarter ("ADDITIONAL LICENSE Fees"). Licensee may credit,
against any fees due under this Section 5.2 for a given Fiscal Quarter, the
Minimum Annual License Fees already paid by Licensee for such Fiscal Quarter.
5.3 MAINTENANCE FEE. In consideration of the services to be
provided by ABT under Section 6, Licensee shall pay to ABT the maintenance fee
specified on ATTACHMENT A (the "MINIMUM ANNUAL MAINTENANCE FEE"). The Minimum
Maintenance Fee will be payable in equal monthly installments in advance. ABT
may increase the Minimum Maintenance Fee after the first year of the Term, in
proportion to any increase in the Consumer Price Index over the previous year.
5.4 INITIAL TRANSFER FEE. A portion of the Minimum Annual License
Fee is designated as the "Initial Transfer Fee." The parties acknowledge that
the Initial Transfer Fee is in consideration of ABT's efforts prior to the
Launch Date, including without limitation assisting Licensee in assessing the
technical requirements for operating the Local Business, and installing the
Software.
5.5 DATA CENTER FEES. Licensee shall pay to ABT the Data Center
Fees indicated on ATTACHMENT A. Data Center Fees will be payable as indicated in
ATTACHMENT A. The parties acknowledge that the Data Center Fees are in
consideration of ABT's ongoing efforts on behalf of all NOCs to maintain the
data center hardware and software and to implement minor improvements to the
World Wide Web site for the Local Business. Such efforts include, but are not
limited to: (a) coordinating IT communication on NOCs' behalf with xxxxxxxxx.xxx
inc., (b) receiving initial software transfer for NOCs, and (c) providing
additional customization services.
-12-
21
5.6 PRODUCT MANAGEMENT FEES. Licensee shall pay to ABT the
Product Management Fees indicated on ATTACHMENT A. Product Management Fees will
be payable as indicated in ATTACHMENT A. The parties acknowledge that the
Product Management Fees are in consideration of ABT's ongoing efforts to make
employees available who assist in providing product support and developing new
products, as well as assisting with training and marketing efforts for the NOCs.
Such efforts may relate to, but are not limited to, the following areas: (a) New
Car Program, (b) Used Car Program, (c) Dealer Real Time, and (d) Auction
Programs.
5.7 TAXES. All charges and Fees provided for in this Agreement do
not include any taxes, duties, or similar charges imposed by any government.
Licensee shall pay or reimburse ABT for all federal, state, dominion,
provincial, or local sales, use, personal property, excise or other taxes, fees,
or duties arising out of this Agreement or the transactions contemplated by this
Agreement (other than taxes on the net income of ABT).
5.8 PAYMENT. Licensee shall calculate, denominate, and make all
payments in Euros by wire transfer to an account designated by ABT. Any payments
due under this Agreement which are not paid when due will bear interest, to the
extent permitted by applicable law, at the prime rate as reported by the Chase
Manhattan Bank, New York, New York, beginning on the date such payment is due,
plus an additional 3%, calculated on the number of days such payment is
delinquent. This Section 5.9 will not limit any other remedies available to any
party.
5.9 RECORDS AND AUDITS. Licensee shall make and maintain, an
accounting and record keeping system, including the basic accounting information
necessary to prepare sufficient financial statements and a general ledger in
accordance with the United States Generally Accepted Accounting Principles
(GAAP) with adequate and verifiable records and supporting documentation,
including, without limitation, invoices, payroll records, check registers, sales
tax records, cash receipts and disbursements journals, and general ledgers in
order to calculate and confirm Licensee's payment obligations hereunder. At a
minimum, Licensee will maintain such records until the expiration of 3 years
after the year to which such records pertain. ABT will have the right, at its
own expense, to inspect, through either its employees or agents, and upon
reasonable notice in writing, and during regular business hours, such records,
as well as the physical plant, operations, and business practices of Licensee,
to verify the accuracy of fees paid by Licensee under the terms of this
Agreement, and to otherwise verify Licensee's compliance with the terms of this
Agreement; provided, however, that any third party auditors must sign a
non-disclosure agreement reasonably acceptable to Licensee. If any such
examination discloses a shortfall in the fees due to ABT hereunder, Licensee
shall reimburse ABT for the full amount of such shortfall plus interest and if
the amount of the underpayment for any period is more than 5% Licensee shall pay
ABT's costs of performing that audit with respect to such period.
6. MAINTENANCE AND SUPPORT.
6.1 SUPPORT. ABT shall provide Maintenance and Support as
described in Section 6.2 below. ABT's provision of Maintenance and Support to
Licensee will commence upon payment of the Maintenance Fee and will continue for
as long as Licensee continues to pay the annual Maintenance Fee.
-13-
22
6.2 MAINTENANCE AND SUPPORT SERVICES. For purposes of this
Agreement, "MAINTENANCE AND SUPPORT" means that ABT shall: (a) use reasonably
diligent efforts to correct and resolve Errors that Licensee reports to ABT in
accordance with the escalation procedures set forth in ATTACHMENT E; and (b)
provide Error Corrections, Updates and Upgrades, if any, to the Software,
Business Procedures and Documentation that ABT releases during the current
period covered by the Minimum Maintenance Fee, in accordance with Section 2.6;
and (c) provide up to ______ hours of support services per year, in English,
pursuant to the escalation procedures in ATTACHMENT E. The parties acknowledge
that such services may include not only technical support, but also any
help-desk, marketing support, training, information technology consulting,
Business Procedure consulting, or any other services performed by ABT or its
Affiliates at Licensee's request. In addition, such services may include a
pro-rated portion of the services of ABT personnel serving Licensee as well as
other licensees of ABT; provided, however, that ABT shall pro-rate such services
in a reasonable fashion based on the time of such personnel spent assisting
Licensee. ABT shall provide Licensee with a monthly report of the hours of
support services provided under this Section 6.2. Each month, ABT shall invoice
Licensee in arrears for Fees for any Maintenance and Support services in excess
of one-twelfth of the allotted _______ hours for the year, in reasonable detail
showing such additional hours to the nearest quarter hour, and Licensee shall
pay such Fees no later than 15 days after the invoice date. Any such additional
Maintenance and Support services will be billed at a rate equal to [*] per
hour. ABT may increase such rate after the first year of the Term, in proportion
to any increase in the Consumer Price Index over the previous year, or the
equivalent European price index, as applicable.
6.3 PROJECT MANAGERS AND STAFF. Each party shall designate a
project manager to administer Maintenance and Support under this Agreement. The
parties shall coordinate all Maintenance and Support work under this Agreement
through such project managers. Each party may change its project manager upon
written notice. ABT will ensure that only properly trained and qualified persons
perform its technical obligations under this Agreement.
7. TRADEMARKS AND DOMAIN NAMES.
7.1 TRADEMARKS. ABT hereby grants to Licensee the exclusive right
to use the ABT Brand in connection with a Local Business in the Territory. The
above license will include, without limitation, the right to indicate to the
public that Licensee is an authorized licensee of ABT and to advertise
Licensee's products and services in connection with the Local Business under the
ABT Brand. Licensee shall fully comply with the Global Brand Protocols in
relation to Licensee's use of the ABT Brand. All representations of the ABT
Brand that Licensee intends to use must first be submitted to ABT for approval
of design, color and other details, subject to the following limitations: (a)
ABT's approval will not be unreasonably withheld or delayed; (b) such approval,
once given, will not be unreasonably withdrawn; and (c) once ABT has approved a
particular use, Licensee need not re-submit for approval any substantially
similar use.
7.2 RESTRICTIONS. Except as set forth in this Section 7, nothing
contained in this Agreement will grant or will be deemed to grant to Licensee
any right, title or interest in or to the ABT Brand. Licensee 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
-14-
23
to register any trademarks, marks trade names, Uniform Resource Locators, or
other designations confusingly similar to those of ABT. If Licensee, 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, as well as at the expiration or termination of this Agreement, without
any separate payment or other consideration of any kind to Licensee, and
Licensee 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 7.3, and including without limitation the
transfer from Licensee to ABT the Licensee Domain upon termination of this
Agreement. Upon termination of this Agreement, Licensee shall immediately cease
to use the ABT Brand and the Licensee Domain. Licensee also shall change its
corporate name and trade name and otherwise ensure that such names may not
reasonably be confused with the name, initials, trademark, service xxxx, or logo
of ABT or its Affiliates or any variation of such names, initials, trademarks,
service marks, or logos.
7.3 TRADEMARK REGISTRATIONS IN THE TERRITORY. Licensee shall
advise ABT regarding the appropriate registrations or filings necessary to
protect the use of the ABT Brand in the Territory. To the extent permitted by
law, ABT shall make such registrations or filings with the appropriate
authorities. Licensee shall pay all costs or fees associated with such filing.
7.4 REGISTERED USER AGREEMENTS. Licensee shall cooperate with ABT
to make any registrations or filings with the appropriate authorities referenced
in Section 7.3, including without limitation entering into registered user
agreements with respect to the ABT Brand pursuant to applicable trademark law
requirements in the Territory. Licensee will be responsible for proper filing of
registered user agreements with appropriate government authorities, and Licensee
shall pay all costs or fees associated with such filing.
7.5 NAME BRANDING; PRODUCT PROTECTION. On any promotional
materials used or disseminated by Licensee relating to the Local Business,
Licensee shall display the ABT Brand. Where both Licensee'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.
7.6 DOMAIN NAMES. ABT hereby grants to Licensee the right to use
the Licensee Domain, solely for the operation of a Local Business. ABT shall,
prior to the first date Licensee makes the World Wide Web site for the Local
Business generally available on the World Wide Web, register the Licensee Domain
name with InterNIC or its successor Internet name assignment authority, and
shall pay the registration fees for one year. Thereafter, Licensee shall in a
timely fashion renew such registration with such authority at its own expense
each time such registration becomes due during the Term.
8. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY FOR THIRD PARTY CLAIMS ARISING OUT OF SECTIONS 9 OR
10, (A) IN NO EVENT WILL EITHER PARTY'S TOTAL LIABILITY ARISING OUT OF OR
RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY LICENSEE
TO ABT UNDER THIS AGREEMENT, AND (B) IN NO EVENT WILL EITHER PARTY HAVE ANY
LIABILITY FOR ANY INDIRECT, INCIDENTAL,
-15-
24
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.
9. INDEMNIFICATION FOR INFRINGEMENT
9.1 ABT INDEMNITY FOR INFRINGEMENT. ABT shall, at its expense,
defend or settle any claim, action or allegation brought against Licensee that
the Software, or any Localization or Extension developed by ABT, infringes any
copyright, trademark or trade secret right in the Territory of any third party,
or that any Localization or Extension not developed by Licensee infringes such
rights as a necessary result of specifications required by ABT, and shall pay
any final judgments awarded or settlements entered into; provided that Licensee
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 Licensee may not settle or
compromise such claim, action or allegation, except with the prior written
consent of ABT. Licensee 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 Licensee the right to continue use of the
Software, Documentation, or Business Procedures or infringing part thereof;
(b) modify or amend the Software, Documentation or
Business Procedures or infringing part thereof, or replace the Software,
Documentation or Business Procedures or infringing part thereof with other
Software, Documentation or Business Procedures having substantially the same or
better capabilities; or if neither (a) nor (b) is reasonably possible,
(c) terminate this Agreement and repay to Licensee a
portion of the Minimum Annual License Fee equal to the amount paid by Licensee
less an amount equal to 1/12 of the total Minimum Annual License Fee for each
month or portion thereof of the current one year term to account for use by
Licensee.
The foregoing obligations will not apply to the extent the infringement
arises as a result of modifications to the Software not made by or for ABT. The
foregoing states the entire liability of ABT with respect to infringement of any
patent, copyright, trademark, trade secret or other proprietary right.
9.2 LICENSEE INDEMNITY. Licensee shall, at its expense, defend or
settle any claim, action or allegation brought against ABT (to the extent not
covered by Section 9.1) arising from the act or omission of Licensee, where a
third party alleges fraud, misrepresentation, or unfair business practices
arising from the operation of the Local Business, or those that arise from a
third party allegation that a Localized Version or Extension infringes any
copyright, trade secret or other intellectual property right in the Territory of
any third party, or that any Localization or Extension
-16-
25
developed by Licensee infringes such rights as a necessary result of
specifications required by Licensee, and shall pay any final judgments awarded
or settlements entered into; provided that ABT gives prompt written notice to
Licensee of any such claim, action or allegation of infringement and gives
Licensee the authority to proceed as contemplated herein. Licensee 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
Licensee. ABT shall give such assistance and information as Licensee may
reasonably require to settle or oppose such claims. In the event any such
infringement, claim, action or allegation is brought or threatened, Licensee
may, at its sole option and expense:
(a) procure for ABT the right to continue use of the
Localized Version or Extension or infringing part thereof; or
(b) modify or amend the Localized Version or Extension or
infringing part thereof, or replace the Localized Version or Extension or
infringing part thereof with other materials having substantially the same or
better capabilities.
9.3 PROSECUTION OF INFRINGERS. ABT and Licensee shall give each
other written notice of any acts of infringement by third parties involving
intellectual property rights relating to the Localized Version, Extensions,
Software, Documentation, Business Procedures, or ABT Brand anywhere in the
Territory of which ABT or Licensee has knowledge, and the parties shall consult
together with a view to determine the course of action, if any, to be taken in
such circumstances. ABT will have the right to take action to enforce such
rights. If the parties are unable to agree on any such course of action to be
taken, then ABT shall authorize Licensee to take such actions as Licensee
considers necessary or appropriate and Licensee will be entitled to take such
actions at Licensee'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 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.
10. CONFIDENTIAL INFORMATION
10.1 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 (which information is
marked as "proprietary" or "confidential" or, if disclosed orally, is designated
as confidential or proprietary at the time of disclosure) 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 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, the Receiving 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.
10.2 EXCEPTIONS. The Receiving Party will be relieved of this
obligation of confidentiality to the extent it can demonstrate that any such
information is: publicly available,
-17-
26
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, or 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.
10.3 SOURCE CODE PROTECTIONS. Licensee shall not under any
circumstances distribute the source code for the Software in any manner.
Licensee 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
Licensee shall keep and use the source code for the Software solely at
Licensee's secure development facilities under password protection. Licensee
agrees to limit access to the source code for the Software 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. Licensee shall keep records of all persons who have access
to the source code for the Software. At ABT's request, Licensee agrees to
provide such records to ABT for review.
10.4 CONTRACTORS. Subject to Section 2.5, Licensee may appoint a
third party contractor ("CONTRACTOR") to assist Licensee in Licensee's
modification or implementation of the Localized Version as authorized hereunder;
provided, however, that any such Contractor's access to and use of the Software
(including the Localized Version): (a) will only be permitted pursuant to a
signed written agreement between Licensee and such Contractor that contains
terms at least as restrictive as those set forth in this Section 10, (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 Localized Version
beyond those expressly granted hereunder ("CONTRACTOR AGREEMENT"). Such
agreement must be approved in writing by ABT prior to its execution. Licensee
shall indemnify and hold harmless ABT against any breach of such Contractor
Agreement by such Contractor.
10.5 NOTIFICATION OF SECURITY BREACH. Licensee shall notify ABT
promptly in the event of any breach of its security of which Licensee becomes
aware, under conditions in which it would appear that the trade secrets
contained in the source code for the Software or the Localized Version were
prejudiced or exposed to loss. Licensee 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 Licensee by virtue of this
Agreement. The cost of taking such steps will be borne solely by Licensee.
10.6 INJUNCTIVE RELIEF. In the event of breach of the provisions
of Section 10.1 or 10.3, the non-breaching party will have no adequate remedy at
law and will be entitled to immediate injunctive and other equitable relief,
without the necessity of showing actual money damages.
11. TERM AND TERMINATION
11.1 TERM. This Agreement will be effective as of the Effective
Date and will continue in full force and effect for a term of 10 years (the
"TERM") after the earlier of the Launch Date or , unless terminated as set forth
in this Section 11.
-18-
27
11.2 TERMINATION. This Agreement may be terminated only as
follows, if any of the following events ("TERMINATION EVENTS") occur:
(a) NONPAYMENT OF FEES. In the event that: (i) Licensee
fails to pay the Fees as they become due; and (ii) fails to do so after 10 days
written notice thereof, ABT may terminate this Agreement upon written notice to
Licensee.
(b) DEFAULT. In the event that either party defaults in
the performance of a material non-monetary obligation under this Agreement
(other than nonpayment of Fees as set forth in Section 11.2(a)(i)) above, 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 30 days, the non-defaulting party may seek to terminate this Agreement
under this Section 11.2(b) in the event that such material default is not cured
within such 30 day period. If such default is not amenable to cure within 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 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 15.13(b). The parties shall
instruct the arbitrators to make a determination as to whether a material
default has occurred within 30 days after the arbitration proceeding is
initiated. If the arbitrators determine that a material default has occurred,
the non-defaulting party may terminate this Agreement immediately upon written
notice.
(c) ABT may terminate this Agreement immediately upon
written notice if Licensee: (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.
(d) In the event ABT: (i) winds up or terminates 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; ABT shall assign the all rights and obligations of ABT under this
Agreement to xxxxxxxxx.xxx inc. ABT hereby represents and warrants that ABT has
entered into an agreement with xxxxxxxxx.xxx inc. consenting to such assignment.
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 terminate except as otherwise stated herein. The
terms and conditions of the following Sections will survive termination or
expiration of this Agreement: 1, 2.4, 2.7, 4.3, 4.4, 5.9, 7.2, 8, 9, 10, 11.3,
13 and 15, as well as any payment obligations in accordance with Section 5 which
accrued prior to expiration or termination hereof.
-19-
28
(b) RETURN OF MATERIALS. Within 30 days after the date of
termination or discontinuance of this Agreement for any reason whatsoever,
Licensee shall, at ABT's option, return or destroy any copies of the Software,
Documentation, Business Procedures and any other Confidential Information in its
possession that is in tangible form. Licensee shall furnish ABT with a
certificate signed by an executive officer of Licensee verifying that the same
has been done.
(c) NON-COMPETITION. If this Agreement is terminated by
ABT under Section 11.2(b) or (c) before the end of the Term, then during the
period between termination of this Agreement and one year after termination of
the Agreement, Licensee shall not operate a Local Business. If Licensee assigns
this Agreement to another party in accordance with the terms of Section 12, this
obligation will run to Licensee, and to such assignee.
11.4 LICENSE IF ABT ENTERS BANKRUPTCY. If, at any time during the
Term, ABT: (a) files a voluntary petition in bankruptcy under Chapter 7 of 11
United States Code (the "BANKRUPTCY CODE"); or (b) has an involuntary petition
in bankruptcy filed against it under Chapter 7 of the Bankruptcy Code, which
petition is not dismissed within 90 days, Licensee may elect to retain its right
in the licenses granted in this Agreement, subject to the terms of this
Agreement, in accordance with Chapter 3, Section 365(n) of the Bankruptcy Code.
The licenses granted in this Agreement will be deemed licenses of "intellectual
property" under Section 365(n) of the Bankruptcy Code.
12. NONASSIGNMENT/BINDING AGREEMENT. Neither this Agreement, nor any
rights under this Agreement, may be assigned or otherwise transferred by
Licensee, 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. ABT may assign all its rights and obligations under this
Agreement in accordance with Section 11.2(d), or otherwise to an Affiliate 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. NON-SOLICITATION. Each party acknowledges and agrees that the
technical and development employees and consultants of the other party are a
valuable asset of such party and are difficult to replace. Accordingly, each
party agrees that, for the Term and for a period of 2 years thereafter, it will
not offer employment as an employee, independent contractor, or consultant to
any such employee or consultant of the other party. In the event of a breach of
the provisions of this Section 13, the parties agree that it would be difficult
to determine the amount of actual damages that would result from such breach.
The parties further agree that in the event of a breach of the provisions of
this Section 13, the breaching party shall pay the non-breaching party
liquidated damages of $50,000 for each such breach, which is the parties' good
faith estimate of the amount of damages to the non-breaching party from such
breach.
14. 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, or (c) sent by overnight air courier; in
each case
-20-
29
properly posted and fully prepaid to the appropriate address set forth below.
Either party may change its address for notice by notice to the other party
given in accordance with this Section 14. 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) 30 days after deposit in the mail as set forth
above.
15. MISCELLANEOUS
15.1 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, fires and
explosions ("FORCE MAJEURE"), but the inability to meet financial obligations is
expressly excluded. The time for performance will be extended for a period equal
to the duration of the delay, but in no event longer than 90 days. If, as a
result of a Force Majeure, a party is unable to resume performance within such
90 day period, the other party will have the right to terminate this Agreement.
15.2 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.
15.3 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 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.
15.4 ENTIRE AGREEMENT. This Agreement (including the Attachments
hereto) 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.
15.5 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.
-21-
30
15.6 CONSENT. Unless expressly provided otherwise in this
Agreement, any prior consent of ABT that is required before Licensee may take an
action may be granted or withheld in ABT's sole and absolute discretion.
15.7 EXPORT RESTRICTIONS. Licensee 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. Licensee 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 and
Documentation licensed hereunder. Further, Licensee shall cooperate as requested
by ABT to ensure compliance with any export restrictions or licenses relating to
the Software and Documentation.
15.8 PRESS RELEASES. Neither party shall disclose to any third
party the terms and conditions of this Agreement, except as required by the law,
of any relevant jurisdiction, or to any securities exchange or regulatory
authority or governmental body to which either party is subject, wherever
situated whether or not the requirement has force of law, in which case the
party making such disclosure shall take all such steps as are reasonable and
practicable in the circumstances to agree upon the contents of such disclosure
with the other party before marking such disclosure. Either party may disclose
the terms and conditions of this Agreement to their respective legal or business
advisors with a need to know acting under a duty of confidentiality.
Notwithstanding the above, at a mutually agreed time, as soon as possible but no
later than 30 days after the Effective Date, ABT and Licensee shall issue a
mutually acceptable joint press release announcing the relationship contemplated
by this Agreement.
15.9 RIGHTS AND REMEDIES. No exercise or enforcement by either
party of any 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.
15.10 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.
15.11 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 conflict of law principles and excluding
the 1980 United Nations Convention on Contracts for the International Sale of
Goods.
15.12 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.
15.13 DISPUTE RESOLUTION.
(a) ESCALATION. If a dispute otherwise arises under this
Agreement, it should be referred to the President of each of the parties for
resolution, and such persons shall use their best
-22-
31
efforts to resolve the matter for no less than 30 days. Any matter such persons
are unable to resolve within such period may be submitted to the dispute
resolution procedure set forth in Section 15.13 (b) or (c), as applicable.
(b) ARBITRATION. Any dispute or claim arising out of or in
relation to this Agreement not resolved by Sections 15.13(a) 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
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 above, either party may apply to
any court of competent jurisdiction for injunctive or equitable relief.
15.14 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by duly authorized representatives on the dates set forth below.
AUTOBYTEL. EUROPE LLC ("ABT") ("Licensee")
By: By:
-------------------------------- -------------------------------------
Name: Name:
------------------------------ -----------------------------------
Title: Title:
----------------------------- ----------------------------------
Date: Date:
------------------------------ -----------------------------------
Address: Address:
--------------------------- --------------------------------
-23-
32
ATTACHMENT A
SOFTWARE:
The Software will include the following core business applications:
[TO BE PROVIDED AS APPROPRIATE FOR EACH NOC]
FEES[DESCRIBE THE FOLLOWING FEES:]
MINIMUM ANNUAL LICENSE FEE.
ADDITIONAL LICENSE FEES.
MAINTENANCE FEE.
INITIAL TRANSFER FEE.
DATA CENTER AND PRODUCT MANAGEMENT FEES:
The Autobytel.Europe concept has as one if its core tenets the ability
to achieve pan-European cost leadership through centralizing both Data Center
and Product Management functions. It is proposed that such centralization will
reduce costs to the NOC's which, without such centralization, would be forced to
re-create the same systems and support functions on a country by country basis.
A. THE FOLLOWING PROVIDES NON-EXHAUSTIVE EXAMPLES OF THE FUNCTIONS
ASSIGNED TO THE DATA CENTER AND PRODUCT MANAGEMENT GROUPS:
Data Center
Coordinate IT communication on NOC's behalf with Xxxxxxxxx.xxx
Receive initial software transfer for NOC's
Develop or cause to be developed necessary Localization, Derivative
Works, Extensions, and/or Updates & Upgrades (such developments will be
subject to additional charges)
Host all NOC websites
Provide additional customization requested by NOC's (such customization
will be subject to an additional charge)
B. PRODUCT MANAGEMENT WILL BE PROVIDED FOR THE FOLLOWING ABT PRODUCT
LINES:
[TBD]
33
The costs incurred to provide these support services, excluding senior
management support and oversight, will be billed on a pro-rata basis to the
NOC's (based upon vehicle registration or an alternative measurement standard
agreeable to the NOC's). Provided, however, if the NOC has special service
requirements, ABT will attempt to provide such services at an additional charge.
The NOC's will, after the first year of operation, project their usage
requirements for the various support functions and will submit these estimates
to ABT. ABT, in turn, will consolidate the requests and will determine the
appropriate staffing, systems, etc. that will be required to deliver such
services to the NOC's. ABT will present the budget to each NOC, who, in turn
will approve the budget for the following year. In the event the NOC's are
unable to collectively agree on the budget, then the CEO of ABT shall decide the
final budget after consultation with the board of ABT.
The parties shall negotiate in good faith any changes to the above terms
that may be necessary as a result of any change in the Business Procedures.
34
ATTACHMENT B
[ATTACH BUSINESS PROCEDURES AS OF EFFECTIVE DATE ]
ATTACHMENT C
[ATTACH BRANDING PROTOCOLS AS OF EFFECTIVE DATE ]
ATTACHMENT D
[ATTACH SERVICES AGREEMENT]
ATTACHMENT E
[ATTACH ESCALATION PROCEDURES AS OF EFFECTIVE DATE ]
35
ATTACHMENT F
DRT END USER LICENSE
DRT
DEALER REAL TIME ACCESS AGREEMENT
THIS AGREEMENT IS ENTERED INTO THIS____,DAY OF ______ BETWEEN
_____________, AND _____________, A(N) __________ LIMITED LIABILITY CORPORATION,
WITH ITS PRINCIPAL PLACE OF BUSINESS LOCATED AT __________________________
("LICENSEE").
WHEREAS, LICENSEE HAS EXECUTED AN XXXXXXXXX.XXX INC. NEW CAR
SUBSCRIPTION AGREEMENT AND/OR "USED CAR CYBERSTORE(TM)" SUBSCRIPTION AGREEMENT;
AND
WHEREAS, LICENSOR HAS DEVELOPED AND OWNS THE RIGHT TO LICENSE CERTAIN
PROPRIETARY SOFTWARE PROGRAMS COMMONLY REFERRED TO AS THE AUTO-BY-TEL DEALER
REAL TIME (DRT) PROGRAM AS WELL AS RELATED INFORMATION AND DOCUMENTATION
CURRENTLY RESIDING EXCLUSIVELY WITH LICENSOR; AND
WHEREAS, LICENSEE HAS REPRESENTED TO LICENSOR THAT THEY WILL PROVIDE
FOR THEMSELVES A PERSONAL COMPUTER, AND CERTAIN ANCILLARY EQUIPMENT RELATED
THERETO WHICH MEETS THE MINIMUM SPECIFICATIONS SET FORTH HEREIN (TOGETHER, THE
"EQUIPMENT") FOR USE IN CONNECTION WITH DRT AND
WHEREAS, LICENSOR WILL PROVIDE DATA ACCESS, PROGRAM MAINTENANCE,
UPDATING AND HELP-LINE TECHNICAL SERVICES TO LICENSEE TO ASSIST LICENSEE IN THE
USE OF THE PROGRAMS;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PREMISES
HEREIN RECITED AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES, INTENDING TO BE
LEGALLY BOUND HEREBY, WARRANT, COVENANT AND AGREE AS FOLLOWS:
GRANT OF LICENSE. LICENSOR HEREBY GRANTS TO LICENSEE A NON-EXCLUSIVE,
NON-TRANSFERABLE LICENSE TO ACCESS AND USE THE DRT PROPRIETARY PROGRAM AND ANY
RELATED INFORMATION AND DOCUMENTATION SUPPLIED BY LICENSOR SUBJECT TO THE TERMS
AND CONDITIONS CONTAINED IN THIS AGREEMENT.
TERM OF THIS AGREEMENT: EXCEPT AS PROVIDED HEREIN, THE RIGHTS AND
OBLIGATIONS CONFERRED BY THIS AGREEMENT SHALL RUN CONCURRENTLY WITH THE TERM OF
THE ABT MASTER SUBSCRIPTION AGREEMENT EXECUTED BETWEEN THE PARTIES. LICENSOR MAY
IMMEDIATELY TERMINATE THIS AGREEMENT IN THE EVENT OF A MATERIAL BREACH BY
LICENSEE OF ANY PROVISION OF THIS AGREEMENT, OR ANY OTHER AGREEMENT BETWEEN
LICENSEE AND LICENSOR OR ANY OF THEIR RESPECTIVE AFFILIATES, INCLUDING WITHOUT
LIMITATION THE ABT MASTER SUBSCRIPTION AGREEMENT. EITHER PARTY MAY VOLUNTARILY
TERMINATE THIS AGREEMENT UPON 30 DAYS' WRITTEN NOTICE TO THE OTHER PARTY. UPON
TERMINATION OF THIS AGREEMENT FOR ANY REASON, LICENSEE SHALL PROMPTLY
DISCONTINUE USE OF THE PROGRAMS, DELETE ALL COPIES OF THE DRT PROGRAM, IF ANY,
IN WHATEVER FORM, RESIDING ON ITS COMPUTERS, STORAGE MEDIA AND/OR ON HARD COPY.
RIGHT OF USE. DURING THE TERM OF THIS AGREEMENT, LICENSEE SHALL HAVE THE
RIGHT TO ACCESS THE DRT PROGRAM IN CONNECTION WITH THE INTERNAL OPERATION AND
MANAGEMENT OF
36
LICENSEE'S OWN BUSINESS. LICENSEE IS PROHIBITED FROM RESELLING OR OTHERWISE
ALLOWING ACCESS BY THIRD PARTIES NOT AFFILIATED WITH LICENSEE'S AUTO DEALERSHIP
BUSINESS.
LICENSE FEE. LICENSEE SHALL PAY LICENSOR THE INITIAL SUM OF_____________
DOLLAR ($_________) AS CONSIDERATION FOR THE LICENSE GRANTED HEREUNDER.
MONTHLY ACCESS FEE. LICENSEE SHALL PAY LICENSOR A MONTHLY ACCESS FEE OF
ONE HUNDRED AND FIFTY DOLLARS ($150.00) AND BE ENTITLED TO AN ACCESS VIA UNIQUE
PASSWORD(S) ALLOWING SIMULTANEOUS LOG-ON FOR A MAXIMUM OF TWO USERS PER SESSION.
SYSTEM REQUIREMENTS. DEALER SHALL PROVIDE AT THEIR OWN EXPENSE A
PERSONAL COMPUTER AND RELATED EQUIPMENT THAT MEETS OR EXCEEDS THE FOLLOWING
MINIMUM SPECIFICATIONS:
133 PENTIUM PROCESSOR; 32MB RAM; 33.6 MODEM (THE FASTER THE BETTER!);
2GB HARD DRIVE; WINDOWS '95; ISP (INTERNET SERVICE PROVIDER - IE: AT & T,
NETCOM, MCI....); NETSCAPE NAVIGATOR WEB BROWSER SOFTWARE (VERSION 3.0 OR
LATER).
TECHNICAL SUPPORT. LICENSOR SHALL MAINTAIN FOR THE BENEFIT OF THE
LICENSEE A TECHNICAL SUPPORT HELP-LINE. LICENSOR SHALL ESTABLISH AND STAFF SUCH
HELP-LINE WITH PERSONS KNOWLEDGEABLE ABOUT THE DRT PROGRAM. THE HOURS OF
AVAILABILITY SHALL BE BETWEEN 6:00 A.M. AND 5:00 P.M. PST, EXCLUDING SATURDAYS
AND SUNDAYS. TECHNICIANS WILL PROVIDE ASSISTANCE TO LICENSEE WITH RESPECT TO
ACCESSING AND USING THE DRT PROGRAM ONLY. TECHNICAL ASSISTANCE AND SUPPORT
REGARDING COMPUTER OR RELATED HARDWARE ARE BEYOND THE SCOPE OF THIS AGREEMENT
AND WILL NOT BE PROVIDED BY LICENSOR. THE HOURS OF THE AVAILABILITY OF THE
HELP-LINE ARE SUBJECT TO CHANGE AT THE SOLE DISCRETION OF THE LICENSOR.
COVENANTS OF LICENSEE. DURING THE TERM OF THIS AGREEMENT:
LICENSEE SHALL ADOPT AND ENFORCE SUCH INTERNAL POLICIES, PROCEDURES AND
MONITORING MECHANISMS AS ARE NECESSARY TO ENSURE THAT THE DRT PROGRAM IS USED
ONLY IN ACCORDANCE WITH THIS AGREEMENT AND THAT ALL STEPS NECESSARY TO ENSURE
THAT NO PERSON OR ENTITY WILL HAVE UNAUTHORIZED ACCESS TO THE PROGRAMS ARE
TAKEN.
LICENSEE SHALL NOT: ASSIGN, SUBLICENSE, LEASE, ENCUMBER OR OTHERWISE
TRANSFER OR ATTEMPT TO TRANSFER THE DRT PROGRAM OR ANY PORTION THEREOF; PERMIT
ANY THIRD PARTY OTHER THAN THE LICENSEE OR ITS AUTHORIZED AGENT ACTING IN BEHALF
OF LICENSEE, TO HAVE ACCESS TO THE DRT PASSWORDS OR TO USE PROGRAMS, WHETHER BY
TIMESHARING, NETWORKING, OR ANY OTHER MEANS; DUPLICATE, MODIFY, TRANSLATE,
REVERSE, ENGINEER, DECOMPILE OR DISASSEMBLE THE DRT PROGRAM; POSSESS OR USE THE
PROGRAMS OR ANY PORTION THEREOF, OTHER THAN IN MACHINE READABLE OBJECT CODE;
REMOVE ANY COPYRIGHT, TRADEMARK, PATENT OR OTHER PROPRIETARY NOTICES FROM THE
DRT PROGRAM(S), OR ANY PORTION THEREOF WITHOUT THE EXPRESS WRITTEN CONSENT OF
LICENSOR.
PROGRAM MODIFICATIONS: ONLY THE LICENSOR SHALL MAKE PROGRAM
MODIFICATIONS. LICENSOR SHALL FROM TIME TO TIME PROVIDE UPGRADES AND/OR
MODIFICATIONS TO THE DRT PROGRAM TO LICENSEE. LICENSEE SHALL ACCEPT ANY UPGRADES
OR OTHER MODIFICATION MADE BY LICENSOR TO THE PROGRAMS.
NO WARRANTY. THE PROGRAMS ARE PROVIDED ON AN "AS-IS" BASIS. LICENSOR
MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
LIMITATION OF REMEDIES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH
HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL THE LICENSOR BE LIABLE
THE DAMAGES TO THE LICENSEE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR
DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA BEYOND THE ACCESS FEE PAID FOR
THE MONTH IN WHICH THEY OCCURRED,
37
ARISING OUT OF THE USE OR INABILITY TO USE THE DRT PROGRAM OR ANY DATA SUPPLIED
THEREWITH.
PROPRIETARY DATA. LICENSEE ACKNOWLEDGES THAT THE PROGRAMS ARE
PROPRIETARY TO LICENSOR AND THAT IT HAS (AND WILL HAVE) NO INTEREST THEREIN OR
IN ANY MODIFICATIONS OR IMPROVEMENTS THERETO, AND HEREBY ASSIGNS TO LICENSOR ALL
RIGHTS IN ANY SUCH MODIFICATIONS OR IMPROVEMENTS MADE BY OR ON BEHALF OF
LICENSEE.
CONFIDENTIALITY. FOR THE PURPOSE OF THIS AGREEMENT, CONFIDENTIAL
INFORMATION INCLUDES THE DRT PROGRAMS AND ALL OTHER INFORMATION PROVIDED BY
LICENSOR MARKED "CONFIDENTIAL." INFORMATION SHALL NOT BE DEEMED CONFIDENTIAL
INFORMATION AND LICENSEE AND LICENSEE'S EMPLOYEES SHALL HAVE NO OBLIGATION WITH
RESPECT TO ANY SUCH INFORMATION IF SUCH INFORMATION: (A) IS OR FALLS INTO THE
PUBLIC DOMAIN THROUGH NO WRONGFUL ACT OF LICENSEE OR THE LICENSEE'S EMPLOYEES;
(B) IS RIGHTFULLY RECEIVED FROM A THIRD PARTY WHO IS WITHOUT RESTRICTION AND
WITHOUT BREACH OF THIS AGREEMENT; (C) IS APPROVED FOR RELEASE BY WRITTEN
AUTHORIZATION OF AN OFFICER OF LICENSOR; OR (D) IS DISCLOSED PURSUANT TO THE
REQUIREMENTS OF A GOVERNMENTAL AGENCY OR OPERATION OF LAW.
SHOULD THE LICENSEE OR LICENSEE'S EMPLOYEES LEARN OF CONFIDENTIAL INFORMATION
FROM LICENSOR OR ANY OTHER SOURCE, NEITHER LICENSEE NOR LICENSEE'S EMPLOYEES
SHALL, AT ANY TIME DURING THE TERM, OR FOR ONE YEAR THEREAFTER, DISCLOSE SUCH
INFORMATION TO ANY INDIVIDUAL, AGENCY, COMPANY OR OTHER ENTITY. LICENSEE SHALL
NOT USE SUCH CONFIDENTIAL INFORMATION FOR LICENSEE'S OWN ADVANTAGE OTHER THAN AS
PERMITTED BY THIS AGREEMENT.
BOTH PARTIES RECOGNIZE AND ACKNOWLEDGE THAT BREACH OF THIS SECTION 13
WOULD CAUSE IRREPARABLE INJURY INADEQUATELY COMPENSABLE IN DAMAGES. ACCORDINGLY,
LICENSOR MAY SEEK AND OBTAIN INJUNCTIVE RELIEF AGAINST A BREACH OR THREATENED
BREACH HEREOF, IN ADDITION TO ANY OTHER LEGAL REMEDIES THAT MAY BE AVAILABLE AT
LAW OR IN EQUITY.
14. ASSIGNMENT. EXCEPT FOR ASSIGNMENTS TO AFFILIATES, PROVIDED EACH SUCH
AFFILIATE AGREES TO BE BOUND BY THE TERMS HEREOF, LICENSEE MAY NOT, WITHOUT
LICENSOR'S PRIOR WRITTEN CONSENT, ASSIGN ITS RIGHTS OR DELEGATE ITS OBLIGATIONS
UNDER THIS AGREEMENT.
SEVERABILITY. IF ANY PROVISION OF THIS AGREEMENT SHALL BE HELD TO BE
INVALID, ILLEGAL OR ENFORCEABLE, SUCH DETERMINATION SHALL IN NOR WAY ALTER OR
IMPAIR THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS OF
THIS AGREEMENT.
GOVERNING LAW. THE FORMATION AND PERFORMANCE OF THIS AGREEMENT SHALL BE
GOVERNED AND INTERPRETED IN ACCORDANCE WITH THE LAWS IN EFFECT IN THE STATE OF
CALIFORNIA.
ENTIRE AGREEMENT. THIS AGREEMENT AND ITS PREAMBLE CONSTITUTE THE ENTIRE
AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SHALL SUPERSEDE ALL PREVIOUS ORAL AND WRITTEN PROPOSALS, NEGOTIATIONS,
REPRESENTATIONS, COMMITMENTS AND OTHER COMMUNICATIONS BETWEEN THE PARTIES. THIS
AGREEMENT MAY NOT BE RELEASED, DISCHARGED, CHANGED OR MODIFIED EXCEPT BY A
WRITTEN INSTRUMENT THAT IS SIGNED BY DULY AUTHORIZED REPRESENTATIVES OF EACH
PARTY AND THAT EXPRESSLY INTENDS SUCH RELEASE, DISCHARGE, CHANGE OR
MODIFICATION.
INDEPENDENT CONTRACTORS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR
CONSTRUED BY THE PARTIES OR ANY THIRD PERSON TO CREATE A FRANCHISE, AGENCY,
PARTNERSHIP OR JOINT VENTURE BETWEEN LICENSOR AND LICENSEE.
WAIVER. A FAILURE OF THIS LICENSOR TO ENFORCE AT ANY TIME ANY PROVISION
OF THIS AGREEMENT SHALL IN NO WAY AFFECT THE FULL RIGHT OF THE LICENSOR TO
ENFORCE SUCH PROVISION AT ANY TIME THEREAFTER.
