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EXHIBIT 10.24
[*] Confidential Treatment has been requested for certain portions of this
exhibit.
▇▇▇▇▇▇▇▇▇.▇▇▇
LICENSE AND SERVICES AGREEMENT
This LICENSE AND SERVICES AGREEMENT (this "Agreement") is entered into as of
November 23, 1998, (the "Effective Date") by and between ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a
Delaware corporation with offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("APT"), and Auto by Tel UK Limited, a corporation organized
under the laws of the United Kingdom with offices at _______________ ("ABT/UK"),
and describes the terms and conditions pursuant to which ABT will grant to
ABT/UK a license to use and modify the Software and Business Procedures (as
defined below) and to use certain related technology, to deploy, develop and
support a localized version of such Software and Business Procedures.
BACKGROUND
WHEREAS, ABT 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:
WHEREAS, ABT/UK desires to market new and used vehicles, in the United
Kingdom using the ABT proprietary Software, technology, and ABT Business
Procedures;
WHEREAS, ABT/UK desires to develop a localized version of ABT's
proprietary Software and Business Procedures applicable to the United Kingdom;
WHEREAS, ABT/UK is a wholly-owned subsidiary of Inchcape Automotive
Limited, registered number 3580629 whose registered office is ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, a corporation organized under the laws of the United
Kingdom; and
WHEREAS, ABT and Inchcape have entered into a Share Purchase Agreement of
even date herewith memorializing certain arrangements between ABT and Inchcape
plc regarding the ownership of ABT/UK.
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" trademark, service ▇▇▇▇ and
logo, and the ABT/UK Domain, and does not include the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
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1.2 "ABT/UK Domain" means the Uniform Resource Locator "▇▇▇▇▇▇▇▇▇.▇▇.▇▇"
1.3 "Affiliate" of a party means (i) any entity controlled by,
controlling, or under common control with such party, where "control" means
ownership, either direct or indirect, of more than 50% of the equity interest
entitled to vote for the election of directors or equivalent governing body
and/or (ii) any entity of which such party has possession, either direct or
indirect, of the power to direct or cause the direction of management and
policies of the entity through ownership of voting securities, by contract or
otherwise.
1.4 "Business Procedures" means the general proprietary business
procedures for operating the Local Business described on Attachment B, and any
updates or new revisions thereof provided by ABT in accordance with this
Agreement from time to time upon ninety (90) days prior notice, which, may be
supplemented by ABT with more specific procedures as described in Section 2.9.
1.5 "Confidential Information" means this Agreement and all its
Attachments, any addenda hereto signed by both parties, all Software listings,
Documentation, information, data, drawings, benchmark tests, specifications,
trade secrets, object code and machine-readable copies of the Software, Business
Procedures, and any other proprietary information disclosed by one party to the
other.
1.6 "Consumer Price Index" means the Consumer Price Index, for All Urban
Consumers, Subgroup AA11 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.
1.7 "Derivative Work" means a derivative work within the meaning of 17
U.S.C. Section 101 of the U.S. copyright law (even if the term is not
capitalized when used herein).
1.8 "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.
1.9 "DRT" means the Dealer Communication System portion of the Software.
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1.10 "Error" means a material, reproducible failure of the Software to
perform in substantial conformity with the functional specifications in the
Documentation.
1.11 "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.
1.12 "Fees" mean all minimum and monthly license, maintenance and other
fees payable to ABT hereunder.
1.13 "Global Brand Protocols" means the procedures for use of the ABT
Brand set forth on Attachment C along with any revisions thereof, which ABT may,
subject to Section 2.9, provide from time to time in its sole discretion upon
ninety (90) days prior notice.
1.14 "Gross Revenues" means all payments actually received by ABT/UK 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.
Gross revenues will not include revenues from sales of cars, from servicing of
cars or from other activities by ABT/UK or any of its affiliates other than the
operation of the Local Business.
1.15 "Launch Date" means the earlier of (a) the first date ABT/UK makes
the World Wide Web site for the Local Business generally available on the World
Wide Web; (b) thirty (30) days after completion of Initial Localization Services
under Section 3.1(c); and (c) June 1, 1999.
1.16 "Local Business" means a business providing Internet-based
automotive and automotive related products and services relating to vehicle
dealers located in the Territory.
1.17 "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 by
or for use by ABT/UK
1.18 "Localize, or Localization" means any modifications to the Software
or Business Procedures necessary to facilitate the operation and functionality
of the Software on the operating systems or platforms within the Territory, or
the modification of the Business Procedures to meet local custom or
technological or regulatory requirements.
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1.19 "Fiscal Quarter" means a period of three (3) consecutive calendar
months which period commences upon the Launch Date, or three (3), six (6), or
nine (9) months thereafter; or the anniversary of any of the foregoing.
1.20 "Fiscal Year" means a period of four (4) consecutive Fiscal Quarters
commencing on the Launch Date or the anniversary thereof.
1.21 "Software" means ABT's existing proprietary Software products
specified on Attachment A hereto, in source code form, and object code form
(where applicable), together with any Error Corrections, Updates or Upgrades
thereof provided to ABT/UK pursuant to this Agreement.
1.22 "Territory" means the United Kingdom as constituted on the Effective
Date.
1.23 "Update" means a release or version of the Software, in source code
form, and object code form (where applicable), 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.
1.24 "Upgrade" means any version of the Software, in source code form,
and object code form (where applicable), 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.
1.25 "Use" means utilization of the Software by ABT/UK solely in
accordance with this Agreement.
2. Grant of License
2.1 License. Subject to the terms and conditions of this Agreement, ABT
hereby grants to ABT/UK:
(a) an exclusive, non-transferable license in the Territory to
copy and create Derivative Works of the Software, 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 or the Business Procedures 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 and
Business Procedures in connection with the operation of the Local Business in
the Territory; provided, however, that ABT/UK will not have the right to use the
Software with respect to vehicle dealers outside the Territory. In this Section
2.1(b), "exclusive" means that ABT shall not for its own account, nor grant to
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any third party a license to use the Software or the Business Procedures in
connection with the operation of a Local Business.
(c) an exclusive, non-transferable license in the Territory to Use
the Business Procedures and the Documentation solely for the operation of the
Local Business, provided that ABT/UK operates the Local Business solely in the
accordance with the Business Procedures; and provided that ABT/UK does not use
the Business Procedures and Documentation with respect to vehicle dealers
outside the Territory.
2.2 Sublicenses. ABT/UK 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 a form as protective of ABT's rights as the form set forth
in Attachment H. ABT/UK may grant sublicenses of the rights granted in Section
2.1 only upon the prior written approval of ABT.
2.3 Copies. ABT shall deliver to ABT/UK, as soon as practicable, one (1)
copy of the Software, one (1) copy of the related Documentation and one (1) copy
of the Business Procedures. ABT/UK will be entitled: (a) to make two (2) copies
of the Software solely for backup or archival purposes, (b) to retain one (1)
copy of the Software for production purposes, and (c) to make and retain such
copies of the Software as reasonably necessary for ABT/UK to Use the Software in
connection with the Local Business; provided, however, that ABT/UK shall
immediately advise ABT of any such copies made and their location. Except as
otherwise set forth herein, ABT/UK may not copy, distribute, reproduce, use or
allow access to the Software and Business Procedures. All copies of the Software
will be subject to the terms and conditions of this Agreement. Whenever ABT/UK
is permitted to copy or reproduce all or any part of the Software and Business
Procedures, all titles, trademark symbols, copyright symbols and legends, and
other proprietary markings must be reproduced. ABT/UK shall not alter or remove
any of ABT's trademarks, copyright notices or other proprietary notices affixed
to the Software by ABT.
2.4 Ownership. ABT owns all right, title and interest in and to the
Software and Business Procedures, together with any Localized Version or other
modifications to the Software and Business Procedures made by either ABT or
ABT/UK in connection with Localization of the Software or Business Procedures.
The licenses granted herein transfers to ABT/UK 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. Upon development of any Localized Version by ABT/UK, ABT/UK
hereby assigns all right, title and interest to such Localized Version to ABT.
Such Localized Version will be included as, and incorporated in, the Software
for the purposes of the license grant in this Section 2. For any Localizations
or Extensions incorporated into ABT's generally available version of the
Software, ABT shall promptly incorporate related Documentation. Except as
otherwise set forth in the applicable Work Order for the Localization services
(as such term is defined in the "Services Agreement" in
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Attachment D, 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"), ABT hereby
grants ABT/UK an irrevocable, non-exclusive, fully paid-up, nontransferable
license to reproduce, distribute, publicly perform and display, transmit, and
prepare derivative works of the Extensions in connection with the Local
Business. This license to use Extensions will survive the termination of this
Agreement. All rights not expressly granted hereunder are reserved to ABT. To
the extent that a Localized Version, or any Extension prepared by ABT/UK's
employees or Contractors (as defined in Section 10.4) and provided to ABT
hereunder, embody patentable methods of doing business, inventions, or
algorithms ("ABT/UK Inventions"), then ABT/UK retains all right, title and
interest in and to such ABT/UK Inventions, and ABT/UK hereby grants ABT an
irrevocable, non-exclusive, fully paid-up, royalty-free, non-transferable
license to make, have made, use, sell, import, and otherwise exploit products
embodying such ABT/UK Inventions. ABT may sublicense such rights in connection
with licenses of the Software and ABT's trademarks. This license to ABT/UK
Inventions will survive the termination of this Agreement.
2.5 Software and Business Procedure Localizations and Extensions. Except
as otherwise set forth in this Agreement or as otherwise agreed by the parties,
as between the parties, ABT/UK 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. All such Localization changes and
the development of any Extensions must be either: (i) performed by ABT in
accordance with Section 3.1 below; or (ii) performed by ABT/UK, or by its
independent contractor approved by ABT, under the technical oversight and
subject to the approval of ABT, subject to Section 3.1 below. ABT's approval of
such Localizations or Extensions shall not be unreasonably withheld, and without
limiting the above, will not be withheld where the requested Localization or
Extension: (x) is required to comply with the laws and regulations of the
Territory, or (y) is in current use in ABT's United States version of the
Software. Further, subject to the above provisions of this Section 2.5, ABT may
withhold approval for any implementation of a Localization or Enhancement which
would materially impair the value of the ABT Brand, cause the Local Business not
to be in accordance with the Business Procedures, or require a change in the
technical architecture of the Software. Any modifications made to the Software,
Documentation, or Business Procedures without the approval of ABT as set forth
herein will be a material breach of this Agreement. Upon completion of any
Localized Version or Extension (other than by ABT), ABT/UK 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 (except as required in
Section 11.2(d)) subject to ABT/UK'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 ABT/UK any Error Corrections, Updates or Upgrades to the
Software or Business Procedures that it releases to any of ABT's other local
country affiliates or United States licensees within a reasonable time after
such Error
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Correction, Update, or Upgrade is released in the United States. ABT/UK shall
implement all Error Corrections, Updates, or Upgrades provided by ABT under this
Agreement, no later than one (1) year after delivery thereof to ABT/UK.
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. ABT/UK 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, Business Procedures, or Localized Version by any
third party without ABT's prior written consent, except as specifically
authorized by this Agreement; or
(c) use the Software 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 ABT/UK to
identify any such third-party technology, but ABT will not be obligated to
provide any such third party technology to ABT/UK.
2.9 Changes to Business Procedures and Global Branding Protocols. ABT
may only make those changes to the Business Procedures and Global Branding
Protocols that ABT makes generally for ABT's and ABT's licensees using the
Software and Business Procedures. Where feasible, ABT shall seek comments and
suggestions of ABT/UK regarding such changes. ABT shall discuss in good faith
any concerns ABT/UK may have with respect to such changes.
3. Obligations.
3.1 Services. Upon mutual agreement, ABT may, from time to time, perform
services and provide support to ABT/UK that will be subject to the Services
Agreement included on Attachment D hereto (the "Services" as further defined
below).
(a) In addition to the compensation set forth in the definitive
Services Agreement, ABT/UK 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 ABT/UK in connection therewith.
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(b) ABT/UK shall pay ABT for any Services provided under this
Section 3.1 in accordance with the payment terms set forth in Section 5 below.
(c) ABT shall provide initial Services to Localize the Software
(the "Initial Localization Services") in accordance with the initial Work Order
(as such term is defined in the Services Agreement) set forth in Attachment E.
ABT shall provide further Services to Localize the Software in accordance with
such subsequent Work Orders agreed to by the parties in writing according to the
software development procedures described in Attachment G.
(d) Notwithstanding the above, ABT shall provide ABT/UK with a
one-time, three (3) day "train the trainer" session at ABT's office in Irvine,
California, at no charge to ABT/UK. ABT/UK will be responsible for any travel,
living, and related expenses of any persons it sends to such training session.
3.2 Scope of Services. The parties currently anticipate that the
Services that may be performed in accordance with Section 3.1 above may include
the following. However, nothing in this Section 3.2 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.
3.3 ABT/UK Obligations. ABT/UK shall operate the Local Business solely
in accordance with the Business Procedures, which the parties acknowledge set
forth general principles for operation of the Local Business. The parties shall
agree in good faith upon more detailed business procedures, and ABT/UK shall use
reasonable efforts to abide by the business procedures generally provided by ABT
to its licensees. ABT/UK shall operate the Local Business solely in accordance
with the laws, regulations, and other requirements of the Territory and of the
European Union. During the Term, ABT/UK will devote sufficient resources and
personnel to the Local Business to market, promote and operate the Local
Business. ABT/UK 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. ABT/UK
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will ensure that only properly trained and qualified persons perform ABT/UK's
technical obligations under this Agreement.
3.4 Hyperlinks. ABT shall, on and after the first date ABT/UK makes the
World Wide Web site for the Local Business generally available on the World Wide
Web, display a hypertext link on its Web page at the location where ABT provides
links to its local country affiliates, pointing toward ABT/UK's home Web page
for the Local Business, and ABT/UK shall, on and after the first date ABT/UK
makes the World Wide Web site for the Local Business generally available on the
World Wide Web, display a hypertext link on the home Web page for the Local
Business pointing to such location.
3.5 Territory and Sales. The parties acknowledge that ABT/UK may receive
inquiries or orders for sales of products or services from persons outside the
Territory. In such case, ABT/UK shall respond to such inquiries only in
accordance with the laws of the Territory and the European Union. In addition,
ABT/UK acknowledges that ABT may enter into agreements with other parties who
will operate a Local Business outside the Territory. ABT/UK shall use its best
efforts to resolve any channel conflicts with such third parties relating to
such inquiries.
3.6 Reports. No less frequently than each month, as reasonably requested
by ABT, ABT Entity (as defined in Attachment B) will provide to ABT, in a format
reasonably acceptable to ABT, a summary report of business data regarding the
operation of the business of the ABT Entity, including without limitation the
number of purchase requests and finance requests, Web statistics, and revenue
data, as required for the ABT global data warehouse and reporting system.
4. Warranty and Disclaimer
4.1 ABT Warranty.
(a) ABT represents and warrants to ABT/UK that during the Term,
the Software in the form delivered to ABT/UK will perform in substantial
accordance with the Documentation.
(b) Without limitation to any other warranty, ABT represents and
warrants to ABT/UK that the Software in the form delivered to ABT/UK 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: (a) initiate and operate; (b) correctly store, represent
and process dates; and (c) 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) ABT warrants and represents to ABT/UK that the Software, in
the form delivered to ABT/UK and on the media delivered to ABT/UK does not
contain any virus, codes, commands or
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instructions that alter, delete, erase, damage, disable, disrupt, or otherwise
interfere with ▇.▇▇/▇▇'▇ use of, the Software.
(d) 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 ABT/UK, use reasonably
diligent efforts to correct the Software in accordance with the escalation
procedures in Attachment F, and include the correction thereof in the next Error
Correction released by ABT and provided to ABT/UK under Section 6.2 below. The
foregoing are ABT/UK'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 instructions
for Use.
(e) ABT represents and warrants to ABT/UK that ABT has full power,
right and authority to enter into this Agreement, to carry out its obligations
under this Agreement and to grant the rights granted to ABT/UK herein.
(f) ABT represents and warrants to ABT/UK that all Services
performed by ABT under this Agreement shall be performed in a professional
manner consistent with industry standards by personnel with the required
training, background and experience to perform such services. In the event of a
breach of such warranty, ABT shall re-perform the non-conforming services at no
charge. The foregoing is ABT/UK's sole and exclusive remedy for breach of such
warranty.
4.2 ABT/UK Warranty. ABT/UK represents and warrants to ABT that ABT/UK
has MI power, right and authority to enter into this Agreement, to carry out its
obligations under this Agreement and to grant the rights granted to ABT herein.
ABT/UK represents and warrants to ABT that ABT/UK 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 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 ABT/UK by virtue of this Agreement is
speculative and depends, to a large extent, upon the ability of ABT/UK as an
independent business operator and the active participation of ABT/UK 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.
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[*] Confidential Treatment Requested
5. Compensation.
5.1 Minimum License Fee. In consideration of the licenses granted
herein, ABT/UK shall pay to ABT the minimum license fee specified on Attachment
A ("Minimum Annual License Fee"). The Minimum Annual License Fee will be payable
in four (4) equal installments, in advance of each Fiscal Quarter.
5.2 Additional License Fees. In consideration of the licenses granted
herein, ABT/UK shall pay to ABT the following fees ("Additional License Fees"):
(a) For the [*].
(b) For the sixth (6th) Fiscal Year and each Fiscal Year
thereafter, ABT/UK shall, no later than fifteen (15) days after the end of each
month pay to ABT an amount equal to [*] of Gross Revenues received by ABT/UK
during such month in connection with the operation of the Local Business. Such
fees will be in addition to any fees due under Section 5.1. For purposes of this
Section 5.2, the "Credit Amount" means one million one hundred thousand dollars
($1,100,000); however, if ABT/UK terminates the maintenance portion of this
Agreement under Section 11.2(d), the Credit Amount for each Fiscal Year ending
after such termination will be eight hundred fifty thousand dollars ($850,000).
ABT/UK may credit up to the Credit Amount each Fiscal Year against Additional
License Fees payable under this Section 5.2(b). Such credits may only be applied
against ABT/UK's payment of Additional License Fees under this Section 5.2(b)
and in no event will be refundable to ABT/UK or reduce the amount of fees
payable under Section 5.1.
(c) For the fourth (4th) and fifth (5th) Fiscal Years, ABT/UK
shall pay ABT the fees set forth in Section 5.2(b). Notwithstanding the monthly
payment and calculation of such fees under Section 5.2(b), in the fourth (4th)
or fifth (5th) Fiscal Years, such fees will be calculated and paid on a Fiscal
Quarterly basis. However, ABT/UK will not be required under this Section 5.2(c)
to pay more than one-half (1/2) of its cumulative Gross Profit to date during
such Fiscal Year. For purposes of this section, "Gross Profits" for a Fiscal
Quarter means Gross Revenues for such Fiscal Quarter, less trading expenses
(i.e., all expenses of ABT/UK during the Fiscal Quarter, but not including
interest expenses or taxes), less 1/4 of the Credit Amount for the Fiscal Year.
For example:
All figures in US $1,000 QUARTER FISCAL
1 2 3 4 YEAR
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A Gross Revenues [*] [*] [*] [*] [*]
B Fees due to ABT [*] of Gross [*] [*] [*] [*] [*]
Revenue
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[*] Confidential Treatment Requested
C Trading Expenses [*] [*] [*] [*] [*]
D [*] of Credit Amount [*] [*] [*] [*] [*]
E Gross Profit (=A-C-D) [*] [*] [*] [*] [*]
F Cumulative Gross Profit for Fiscal [*] [*] [*] [*]
Year to date
G [*] Cumulative Gross Profit [*] [*] [*] [*] [*] [*]
H Credit Amount [*] [*] [*]
I Additional License Fees, Less Credit [*] [*] [*] [*] [*]
[*]
J Additional License Fee Payable (at [*] [*] [*] [*] [*]
the end of the Fiscal Quarter)
K Cumulative License Fee Payable to [*] [*] [*] [*] [*]
date for Fiscal Year (which cannot be
more than [*])
If, in the last Fiscal Quarter of the fourth (4th) Fiscal Year, ABT/UK has a
negative Gross Profit for such Fiscal Quarter which will result in a negative
cumulative Gross Profit for the fourth (4th) Fiscal Year, then ABT/UK may credit
up to one-half (1/2) of the amount of such negative Gross Profit for such Fiscal
Year against payments of the Additional License Fee (after deduction of the
Credit Amount), if any, due under this Section 5.2 for the fifth (5th) Fiscal
Year. Such credits may only be applied against ABT/UK's payment of Additional
License Fees under this Section 5.2(c) and in no event will be refundable to
ABT/UK or reduce the amount of fees payable under Section 5.1. If, in the last
Fiscal Quarter of the fifth (5th) Fiscal Year, ABT/UK has a negative Gross
Profit for such Fiscal Quarter which will result in a negative cumulative Gross
Profit for the fifth (5) Fiscal Year, then there will be no credit to the
Additional License Fee due by ABT/UK in the sixth (6th) Fiscal Year.
(d) No later than ninety (90) days after the end of each ABT/UK
Fiscal Period during the Term, ABT/UK shall pay to ABT (by way of a fee payable,
as set forth in this Section 5.2(d), in the ABT/UK Fiscal Period after that
which has expired) [*] of any Aggregate Profits, where "Aggregate Profits" means
aggregate profits of ABT/UK and its subsidiaries shown by the audited accounts
of ABT/UK (and any subsidiary thereof, as applicable), that are available for
distribution as defined in section 263(3) of the UK Companies ▇▇▇ ▇▇▇▇, (i)
after adding thereto any amounts distributed or repaid as premium in respect of
share capital to the shareholders of ABT/UK on or prior to the end of such
ABT/UK Fiscal Period and (ii) after deducting any amounts owed by ABT/UK to its
shareholders and the amount paid up in respect of the share capital of ABT/UK at
the end of such ABT/UK Fiscal Period, less any amounts previously paid under
this Section 5.2(d). No amount payable under this Section will be repayable to
ABT/UK regardless of whether the calculation of Aggregate Profits for any later
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[*] Confidential Treatment Requested
ABT/UK Fiscal Period would result in an a fee under this Section 5.2(d) of zero
or less. If this Agreement is terminated other than at the end of a Fiscal
Period, then no later than ninety (90) days after the termination of this
Agreement, ABT/UK shall pay [*] of Aggregate Profits as defined above, as
calculated as of the date of termination. For purposes of this Section 5.2(d),
"ABT Fiscal Period" means a regular fiscal reporting period, no less frequent
that an annual period, for which ABT/UK chooses to conduct its financial
accounting. ABT/UK shall select the frequency and ending date of the ABT Fiscal
Period, and notify ABT thereof in writing no later than one (1) year after the
Effective Date.
(e) Minimum Fee. Notwithstanding anything else in this Agreement,
if ABT/UK pays to ABT less than one million one hundred thousand dollars
$1,100,000) in Total Fees for any Fiscal Year, where "Total Fees" for a Fiscal
Year means Minimum License Fees, Additional License Fees, and Minimum
Maintenance Fees for such Fiscal Year, ABT/UK shall, within ninety (90) days
after the end of such Fiscal Year, pay to ABT the difference between one million
one hundred thousand dollars ($1,100,000) and such Total Fees.
5.3 Maintenance Fee. In consideration of the services to be provided by
ABT under Section 6, ABT/UK shall pay to ABT the maintenance fee specified on
Attachment A (the "Minimum 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 Taxes. All charges and Fees provided for in this Agreement are
exclusive of, and do not include, any taxes, duties, or similar charges imposed
by any government. ABT/UK 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).
5.5 Payment. ABT/UK shall calculate, denominate, and make all payments
in U.S. Dollars 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 three percent (3%), calculated on the number of days such
payment is delinquent. This Section 5.5 will not limit any other remedies
available to any party.
5.6 Records. ABT/UK shall make and maintain, and shall cause its
subsidiaries to 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
Kingdom's Generally Accepted Accounting Principles (UKGAAP) 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
ABT/UK's payment obligations hereunder. At a minimum, ABT/UK will maintain such
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[*] Confidential Treatment Requested
records until the expiration of three (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 to verify the accuracy of fees
paid by ABT/UK under the terms of this Agreement; provided, however, that any
third party auditors must sign a non-disclosure agreement reasonably acceptable
to ABT/UK. If any such examination discloses a shortfall in the fees due to ABT
hereunder, ABT/UK 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 five
percent (5%) ABT/UK shall pay ABT's costs of performing that audit with respect
to such period.
6. Maintenance and Support.
6.1 Support. For so long as ABT/UK is current in payment of all fees,
ABT shall provide Maintenance and Support as described in Section 6.2 below.
ABT's provision of Maintenance and Support to ABT/UK will commence upon payment
of the Maintenance Fee and will continue for as long as ABT/UK continues to pay
the annual Maintenance Fee.
6.2 Maintenance and Support Services. For purposes of this Agreement,
"Maintenance and Support" means that ABT will: (a) use reasonably diligent
efforts to correct and resolve Errors that ABT/UK reports to ABT in accordance
with the escalation procedures set forth in Attachment F 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) up to
twenty-five hundred (2,500) hours of technical support per year, in English,
pursuant to the escalation procedures in Attachment F, and the software
development resource commitment guidelines in Attachment G. The parties
acknowledge that such technical support services may be applied to any Services
performed by ABT pursuant to the Services Agreement in Attachment D and will not
include any time spent by ABT to create or provide Error Corrections, Updates,
or Upgrades, or to provide telephone support related thereto, except as mutually
agreed in a Work Order as specified in Attachment D. ABT shall provide ABT/UK
with a monthly report of the hours of technical support provided by ABT under
this Section 6.2. Each month, ABT shall invoice ABT/UK in arrears for Fees for
any Maintenance and Support services in excess of one-twelfth of the allotted
twenty-five hundred (2,500) hours for the year, in reasonable detail showing
such additional hours to the nearest quarter hour, and Customer shall pay such
Fees no later than fifteen (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.
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.
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7. Trademarks and Domain Names.
7.1 Trademarks. ABT hereby grants to ABT/UK 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 ABT/UK is an authorized licensee of ABT and to advertise ABT/UK's products
and services in connection with the Local Business under the ABT Brand. ABT/UK
shall fully comply with the Global Brand Protocols in relation to ABT/UK's use
of the ABT Brand. All representations of the ABT Brand that ABT/UK 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, ABT/UK
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 ABT/UK any
right, title or interest in or to the ABT Brand. ABT/UK shall not challenge or
assist others to challenge the ABT Brand (except to the extent such restriction
is expressly prohibited by applicable law) or the registration thereof or
attempt to register any trademarks, marks trade names, Uniform Resource
Locators, or other designations confusingly similar to those of ABT. If ABT/UK,
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
▇.▇▇/▇▇, and ABT/UK 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 below, and including without
limitation the transfer from ABT/UK to ABT the ABT Domain upon termination of
this Agreement. Upon termination of this Agreement, ABT/UK shall immediately
cease to use the ABT Brand.
7.3 Trademark Registrations in the Territory. ABT/UK shall advise ABT
regarding the appropriate registrations or filings appropriate to protect the
use of the ABT Brand in the Territory. ABT shall make, and ABT/UK shall
cooperate with ABT to make such registrations or filings with the appropriate
authorities. ABT shall pay all costs or fees associated with such filing.
7.4 Registered User Agreements. ABT/UK 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. ABT will be responsible for proper filing of
registered user agreements with appropriate government authorities and shall pay
all costs or fees associated with such filing.
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7.5 Name Branding; Product Protection. On any promotional materials used
or disseminated by ABT/UK relating to the Local Business, ABT/UK shall display
the ABT Brand. Where both ABT/UK'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 ABT/UK the right to use the
ABT/UK Domain, solely for the operation of a Local Business. ABT shall, prior to
the first date ABT/UK makes the World Wide Web site for the Local Business
generally available on the World Wide Web, register the ABT/UK Domain name with
InterNIC or its successor Internet name assignment authority, and shall pay the
registration fees for one year. Thereafter, ABT/UK 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 ABT/UK TO
ABT UNDER THIS AGREEMENT, AND (B) 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.
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 ABT/UK that the Software,
or any Localization or Extension developed by ABT, or the use of the ABT Brand
in the Territory, infringes any copyright, patent, trademark or trade secret
right of any third party, or that any Localization or Extension not developed by
ABT/UK 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 ABT/UK gives prompt written notice to ABT of any such claim,
action or allegation of infringement and gives ABT the authority to proceed as
contemplated herein. ABT will have the exclusive right to defend any such claim,
action or allegation and make settlements thereof in its own discretion, and
ABT/UK may not settle or compromise such claim, action or allegation, except
with the prior written consent of ABT. ABT/UK 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:
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(a) procure for ABT/UK the right to continue use of the Software
or Business Procedures or infringing part thereof,
(b) modify or amend the Software or Business Procedures or
infringing part thereof, or replace the Software or Business Procedures or
infringing part thereof with other Software 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 ABT/UK a portion of the
Minimum Annual License Fee equal to the amount paid by ABT/UK less an amount
equal to one twelfth (1/12) of the total Minimum Annual License Fee for each
month or portion thereof of the current one (1) year term to account for use by
ABT/UK.
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 ABT/UK Indemnity. ABT/UK 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 ABT/UK, 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,
patent, trademark, or trade secret or other intellectual property right of any
third party, or that any Localization or Extension developed by ABT/UK infringes
such rights as a necessary result of specifications required by ABT/UK, and
shall pay any final judgments awarded or settlements entered into; provided that
ABT gives prompt written notice to ABT/UK of any such claim, action or
allegation of infringement and gives ABT/UK the authority to proceed as
contemplated herein. ABT/UK will have the exclusive right to defend any such
claim, action or allegation and make settlements thereof in its own discretion,
and ABT may not settle or compromise such claim, action or allegation, except
with the prior written consent of ABT/UK. ABT shall give such assistance and
information as ABT/UK may reasonably require to settle or oppose such claims. In
the event any such infringement, claim, action or allegation is brought or
threatened, ABT/UK 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 ABT/UK shall give each other
written notice of any acts of infringement by third parties involving
intellectual property rights relating to the Localized
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Version, Extensions, Software, Business Procedures, or ABT Brand anywhere in the
Territory of which ABT or ABT/UK 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 ABT/UK to take such actions as ABT/UK considers
necessary or appropriate and ABT/UK will be entitled to take such actions at
ABT/UK'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, each party shall use at least the same procedures and
degree of care which it uses to protect its own Confidential Information of like
importance, and in no event less than reasonable care.
10.2 Exceptions. The Receiving Party shall be relieved of this obligation
of confidentiality to the extent it can demonstrate that any such information
is: publicly available, already in the Receiving Party's possession at the time
of disclosure and not subject to a confidentiality obligation, obtained by the
Receiving Party from third parties without restrictions on disclosure,
independently developed by the Receiving Party without reference to Confidential
Information, 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. ABT/UK shall not under any circumstances
distribute the source code for the Software in any manner. ABT/UK shall
reproduce and shall not obscure or remove any marking on any copy or Derivative
Work of the source code for the Software. In addition, each copy or Derivative
Work of the source code for the Software must be marked as the confidential and
proprietary property of ABT to which access is restricted, and ABT/UK shall keep
and use the source code for the Software solely at ABT/UK's secure development
facilities under password protection. ABT/UK agrees to limit access to the
source code for the Software twenty-four (24) hours a day, and strictly to those
employees or Contractors to whom access is reasonably necessary in order to
carry out the permitted uses of the source code for the Software hereunder.
ABT/UK shall keep records of all
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persons who have access to the source code for the Software. At ABT's request,
ABT/UK agrees to provide such records to ABT for review.
10.4 Contractors. ABT/UK may appoint a third party contractor
("Contractor") to assist ABT/UK in ABT/UK'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 ABT/UK 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. ABT may perform technical oversight of all work
performed by a Contractor in accordance with this Section 10.4.
10.5 Notification of Security Breach. ABT/UK shall notify ABT promptly in
the event of any breach of its security of which ABT/UK 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. ABT/UK shall, upon request of ABT, take all other reasonable steps
necessary to recover any compromised trade secrets disclosed to or placed in the
possession of ABT/UK by virtue of this Agreement. The cost of taking such steps
will be borne solely by ABT/UK, unless ABT willfully caused the breach.
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 seek immediate injunctive and other equitable
relief, without the necessity of showing actual money damages.
11. Term and Termination
11.1 Term. This Agreement and the licenses granted hereunder will be
effective as of the Effective Date and will continue in full force and effect
for a term of twenty (20) years (the "Term") after the Launch Date, unless
terminated as set forth in this Section 11.
11.2 Termination. This Agreement may be terminated only as follows, if
any of the following events ("Termination Events") occur:
(a) Termination at Will. ABT/UK may terminate this Agreement, for
any reason or no reason, upon no less than one hundred eighty (180) days prior
written notice to ABT; however, such notice may not be given before the date one
(1) year after the Launch Date.
(b) Nonpayment of Fees. In the event that: (i) ABT/UK fails to pay
the Fees as they become due, in accordance with Section 5 above, and (ii) fails
to do so after sixty (60) days written
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notice thereof, ABT may terminate this Agreement upon written notice to ABT/UK;
provided, however, that:
(i) ABT may terminate this Agreement based on non-payment of
Fees only if. (A) the cumulative amount of unpaid Fees is more than sixty-two
thousand five hundred dollars ($62,500); or (B) any Fees in excess of ten
thousand dollars ($10,000) are unpaid for more than ninety (90) days.
Notwithstanding the above, ABT shall continue to have the right to seek damages
from ABT/UK, and seek attorneys' fees under Section 15.14.
(ii) In all events, if ABT attempts to terminate this
Agreement under this Section 11.2(b), and the Fees due to ABT are subject to a
good faith dispute, then either party may initiate an arbitration proceeding in
accordance with Section 15.13(c), and the Agreement shall remain in force during
such arbitration provided that ABT/UK continues to pay ongoing Fees into an
escrow account to be distributed based on the findings of the arbitrator.
(c) 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(b)(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 thirty (30) days, the non-defaulting party may seek to terminate this
Agreement under this Section 11.2(c) in the event that such material default is
not cured within such thirty (30) day period. If such default is not amenable to
cure within thirty (30) days, then the non-defaulting party may seek to
terminate this Agreement if the defaulting party has not made significant and
ongoing attempts to cure such default within thirty (30) days, or if the
defaulting party has not cured such default as soon as possible thereafter. In
either case, upon the expiration of such cure periods the non-defaulting party
may initiate an arbitration proceeding to terminate this Agreement in accordance
with Section 15.13(c). The parties shall instruct the arbitrators to make a
determination as to whether a material default has occurred within thirty (30)
days after the arbitration proceeding is initiated. If the arbitrators
deter-mine that a material default has occurred, the non-defaulting party may
terminate this Agreement immediately upon written notice.
(d) Severable Termination for ABT/UK. In the event that ABT
breaches and fails to cure its obligations under this Agreement and ABT/UK
obtains the right to terminate this Agreement as contemplated in Section 11.2(c)
above, ABT/UK shall have the right, after the date three (3) years after the
Effective Date, to terminate this Agreement as to its obligation to pay Minimum
Services Fees under Sections 3, 5.3, and the Services Agreement, and as to ABT's
obligation to provide Services thereunder, but that all other provisions of this
Agreement shall remain in force, however, each party will continue to be
obligated to perform its duties under Section 2.6; or
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(e) ABT may terminate this Agreement immediately upon written
notice if ABT/UK: (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; or
(f) ABT/UK may terminate this Agreement immediately upon written
notice to ABT in the event that the final Deliverable (as defined in the initial
Work Order referenced in Section 3.1(c)) is not accepted by March 31, 1999. Such
termination will be deemed a termination at will, and will be ABT/UK's sole
remedy and ABT's sole liability for ABT's failure to deliver conforming Initial
Localization Services under Section 3.1(c). ABT/UK's ability to terminate under
this Section 11.2(f) will cease upon the Launch Date. If ABT/UK terminates this
Agreement under this Section 11.2(f), ABT/UK will not be obligated to pay any
amounts not already due as of the date of termination under the Services
agreement or under this Agreement; however, ABT/UK will not be entitled to any
refund of any amount payable under this Agreement or the Services agreement.
11.3 Effect of Termination.
(a) Unwind Services. Upon any expiration or termination of this
Agreement in accordance with Sections 11.2(a), (b), or (c) that takes place
after the first date ABT/UK makes the World Wide Web site for the Local Business
generally available on the World Wide Web, each party shall continue to perform
its obligations under this Agreement, for a period of up to one hundred eighty
(180) days following the effective date of termination ("Unwind Services"). In
consideration of the performance by ABT of such services and ABT/UK's continued
use of the Localized Version, Business Procedures and ABT Brand during such
period, ABT/UK shall continue to pay ABT the amounts set forth in Section 5, and
the Agreement shall be deemed to continue in force until the termination of the
Unwind Services.
(b) 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, 2.3, 2.7, 4.3, 4.4, 5.6, 7.2, 8, 9, 10, 11.2, 11.3, 11.4, 13
and 15, as well as any payment obligations in accordance with Section 5 which
accrued prior to expiration or termination hereof.
(c) Return of Materials. Within thirty (30) days after the date of
termination or discontinuance of this Agreement for any reason whatsoever,
ABT/UK 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. ABT/UK shall furnish ABT with a certificate
signed by an executive officer of ABT/UK verifying that the same has been done.
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(d) Non-Competition. If this Agreement is terminated by ABT/UK
under Section 11.2(a), or if this Agreement is terminated by ABT under Section
11.2(b), (c) or (e) before the end of the Term, then during the period between
termination of this Agreement and two (2) years after termination of the
Agreement, ABT/UK shall not operate a Local Business. If ABT/UK assigns this
Agreement to another party in accordance with the terms of Section 12, this
obligation will ran to ABT/UK, and to such assignee. Nothing in this Section
11.3(d) will be construed to limit the ability of ABT/UK or its affiliates to
operate Web sites that primarily promote the automobiles and related products of
a particular manufacturer, for instance, an Internet site promoting automobiles
featuring the brand of Chrysler Corporation.
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 ninety (90) days, ABT/UK 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 ABT/UK, 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 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 two (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 $25,000 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 properly posted and fully
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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) thirty (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, but the inability to meet financial obligations is expressly
excluded ("Force Majeure"). The time for performance will be extended for a
period equal to the duration of the delay, but in no event longer than one
hundred eighty (180) days. If, as a result of a Force Majeure, a party is unable
to resume performance within such one hundred eighty (ISO) 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 and any
addenda hereto signed by both parties) contains the entire agreement of the
parties with respect to the subject matter of this Agreement and supersedes all
previous communications, representations, understandings and agreements, either
oral or written, between the parties with respect to said subject matter.
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.
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15.6 Consent. Unless expressly provided otherwise in this Agreement, any
prior consent of ABT that is required before ABT/UK may take an action may be
granted or withheld in ABT's sole and absolute discretion.
15.7 Export Restrictions. ABT/UK understands that ABT is subject to
regulation by agencies of the U.S. government, including, but not limited to,
the U.S. Department of Commerce, which prohibit export or diversion of certain
technical products to certain countries. ABT/UK warrants that it will comply in
all respects with the Export Administration Regulations and all other export or
re-export restrictions applicable to the technology and Documentation licensed
hereunder. Further, ABT/UK shall cooperate as requested by ABT to ensure
compliance with any export restrictions or licenses relating to the Software.
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 or quasi-governmental department or agency to which either
party is subject, wherever situated (including without limitation the London
Stock Exchange Limited, the Panel on Takeovers and Mergers, the Securities and
Exchange Commission, and the U.S. Department of Justice) 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 sixty (60) days
after the Effective Date, ABT and ABT/UK 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
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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 efforts to resolve the matter
for no less than thirty (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) Fast Track Resolution for Technical Disputes. For all disputes
between the parties that relate to technical issues under this Agreement, which
disputes cannot be resolved under Section 15.13(a), the parties shall refer the
dispute to a single third party individual mutually agreed to by the parties,
who possesses such technical expertise and impartiality to resolve the dispute,
such approval of such individual not to be unreasonably withheld (the "Expert").
The parties shall each bear fifty percent (50%) of the Expert's expenses, and
shall direct the Expert to issue a decision on the matter within fifteen (15)
days, which decision shall be final and binding on both parties. If the parties
are unable to agree upon an Expert, or upon whether a dispute is a technical
dispute, notwithstanding the good faith efforts to do so, then the dispute shall
be submitted to arbitration as set forth in Section 15.13(c). Except as
expressly set forth to the contrary in this Section 15.13(b), any such fast
track resolution will take place according to the procedures set forth in
Section 15.13(c).
(c) Arbitration. Any dispute or claim arising out of or in
relation to this Agreement not resolved by Sections 15.13(a) or 15.13(b) above
must be settled by binding arbitration under the Rules of Conciliation and
Arbitration of the International Chamber of Commerce as presently in force
("Rules") and by one (1) arbitrator appointed in accordance with said Rules.
Judgment on the award rendered may be entered in any court having jurisdiction
thereof. The place of arbitration will be Orange County, California, U.S.A. Any
monetary award must be calculated and denominated in U.S. dollars and the
arbitration must be conducted in the English language. Notwithstanding the other
provisions of this Section 15.13, 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by duly
authorized representatives on the dates set forth below.
▇▇▇▇▇▇▇▇▇.▇▇▇ inc. ABT/UK
By: By:
-------------------------------- ---------------------------------
Name: Name:
------------------------------ --------------------------------
Title: Title:
----------------------------- -------------------------------
Date: Date:
------------------------------ --------------------------------
Address: Address:
--------------------------- -----------------------------
----------------------------------- -------------------------------------
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ATTACHMENT A
SOFTWARE:
The Software will include all core business applications, including:
---------------------------------------------------------------------------------------------------------------------------------
CATEGORY APPLICATION NAME DESCRIPTION
---------------------------------------------------------------------------------------------------------------------------------
Consumer Product Affinity Programs Restricted view of Consumer Web Interface customized for Affinity Partners. Users are
limited to the web pages (functionality) specified by Affinity Partner.
---------------------------------------------------------------------------------------------------------------------------------
Finance Used by End-User Customers to apply for credit to buy/lease an automobile.
---------------------------------------------------------------------------------------------------------------------------------
Information Provider Used to provide New/Used Car Information to customers via links to various information
Links providers.
---------------------------------------------------------------------------------------------------------------------------------
Insurance Hyperlink to Insurance Site(s).
---------------------------------------------------------------------------------------------------------------------------------
Mobalist Used by End-User Customers to sign-up for and monitor Mobalist Rewards account.
---------------------------------------------------------------------------------------------------------------------------------
New Car Request Used by End-User Customers to gather new car information and request a price quote.
Process (FasTrak)
---------------------------------------------------------------------------------------------------------------------------------
Online Customer Used by End-Users to check on status of Purchase and Finance Requests.
Service Center
---------------------------------------------------------------------------------------------------------------------------------
Quality Assurance Allow End-Users to answer QA survey questions.
Survey (QA)
---------------------------------------------------------------------------------------------------------------------------------
Used Car Request Used by End-User Customers to gather used car information, review dealer used car
Process (FasTrak) inventories, and make a used car purchase request.
---------------------------------------------------------------------------------------------------------------------------------
Dealer Interface Dealer Communication Used by ABT Contracted Dealers to manage purchase requests and customer contact
System (DRT) information; Maintain Used Car Inventory information for Dealership(s).
---------------------------------------------------------------------------------------------------------------------------------
Dealer Management Contract Management Used by ABT Contract Administration department to manage contracts with subscribers
(CM) including New Car (Postal), Used Car, Finance and DRT.
---------------------------------------------------------------------------------------------------------------------------------
Distribution [Dealer] Used by ABT Dealer Support Services (DSS) to set-up and maintain relationship with
Management (RD) dealers.
---------------------------------------------------------------------------------------------------------------------------------
QA Survey (QA) Used by ABT DSS/Training to monitor customer satisfaction and closure rates; Dealer
Performance.
---------------------------------------------------------------------------------------------------------------------------------
Financial Car matching Match vehicle make, model, series in ABT_PROD database to vehicles in GE Capital
Processing database in order to determine residual values.
---------------------------------------------------------------------------------------------------------------------------------
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Credit Union Faxing Faxes consumer purchase requests to Credit Unions for processing.
(CU FX)
Customer Financial Fax Faxes credit decisions to dealers for finance requests submitted by consumers.
to Dealer
(FinFaxDealer)
Financial Status Provides system operations with access to processing statistics, error logging
Monitor and recovery procedures for financial request processing system.
(Financial Status)
Finance/Customer E-mails credit decisions/information from financial institutions to consumers.
Email (FML2)
Bank Matcher, Bank Sends financial requests to and receives credit decision from financial institutions.
Transfer, Bank Watcher
(FSMFrame)
Information Postal Code Updates Imports Postal Code related data from Postal Service, GDT. Import Postal Code
Provider Centroids (Longitude, Latitude of center of zip codes).
Interface
Used Car Import/Export Import/Export Used Car data to/from information providers.
VIN Decoding Import Import Vintek data. Vintek provides the information required to Decode VIN's.
New/Used Car Import Intellichoice data including make, model, series, options and pricing
Information Import information.
MIS Financial Reports Reporting on Financial Requests. Reports are summarized by various
(Financial) dimensions including:
Time - day, week, month, quarter, year
Type - Lease, Retail
Intranet Basic management reporting, system operation monitoring, data maintenance
and company/employee information.
MIS/Billing Interface Used by ABT internal staff to pass billing data from ABT Core system to
Dynamics (ABT's Internal Financial Accounting Application).
QA Reports (QA) Reporting on Customer Satisfaction, Closure rates
Time - day, week, month, quarter, year
Geography - region, state, dealer
Vehicle - make, model, series
PR Type - New car or Used Car
Contract - Paying, Non-Paying Dealers
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Standard Reports Reporting on Purchase Requests. Reports are summarized by various
(Standard) dimensions including:
Time - day, week, month, quarter, year
Geography - region, state, dealer
Vehicle - make, model, series
PR Type - New Car or Used Car
Contract - Paying, Non-Paying Dealers
Various Base Network Much of the core functionality of the systems described above is
Architecture & encapsulated in stored procedures/data tables in the following SQL
Supporting Systems databases: ABT_PROD, ABT_FINANCE, ABT_INTERFACE.
MINIMUM ANNUAL LICENSE FEE:
The annual Minimum Annual License Fee will be Eight Hundred Fifty Thousand
Dollars ($850,000) payable in four (4) Fiscal Quarterly installments of Two
Hundred Twelve Thousand Five Hundred Dollars ($212,500).
ANNUAL MAINTENANCE FEE:
The annual Minimum Maintenance Fee will be Two Hundred Fifty Thousand
dollars ($250,000) payable in advance.
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ATTACHMENT B
ABT BUSINESS PROCEDURES
The following general principles will apply, in ABT/UK is described as the
"ABT Entity." The parties will agree in good faith upon more detailed business
procedures, and ABT/UK will use reasonable efforts to abide by the business
procedures generally provided by ABT to its licensees.
GENERAL
ABT Entity will have a consumer focus and will supply consumer products and
services at competitive prices, in a hassle free, haggle free environment.
("Universal ▇▇▇▇▇▇▇▇▇.▇▇▇ Philosophy")
ABT Entity will strive to offer all automotive related products and services,
including the purchase or lease of new and used vehicles from dealers,
financing, insurance and the sale of warranty services, and after market
products, if applicable. Additional products and services may be added to the
basic model, but only in accordance with universal ABT philosophy (for example,
consumer to consumer used car sales, dealer to dealer auctions and the
Mobalist).
CONSUMER
ABT Entity will supply consumer with access to information on automotive
products and services, including pricing information, specifications and other
useful information to educate the consumer on automotive related matters.
ABT Entity is to use a purchase request concept under which a consumer provides
pertinent information and specifications on the vehicle the consumer wishes to
purchase or lease. In addition, the ABT Entity will notify the consumer of
purchase request's receipt, the dealer to whom the request was forwarded and
provide a toll free number to call if purchase request is not responded to
within a defined period of hours.
Consumer personal information will be considered confidential and treated as
such. It should not be sold or supplied to external sources without the
permission of the consumer. Any such distribution of data should be made to
reputable external partners only.
DEALER
The goal of the Universal ▇▇▇▇▇▇▇▇▇.▇▇▇ Philosophy is that dealers and
manufacturer will benefit from supplying consumer products and services at
competitive prices, in a hassle free, haggle free environment.
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ABT Entity must require each dealer to appoint at least one dedicated ABT
Manager who is a salaried employee (not a commission salesman) whose function is
to interact with the consumer from receipt of purchase request to delivery of
the vehicle. The ABT Manager must respond to purchase requests within a defined
period of hours.
For new car transactions, there will be exclusive geographic (e.g. postal code
based) territories for each auto manufacturer franchise; one dealer per
territory for each auto manufacturer franchise. The size of each territory will
be based on criteria such as population, average driving distance, auto
manufacturer franchise popularity (based on new vehicle registrations), Internet
penetration and household income levels.
Dealers will be selected based on criteria such as reputation in community,
consumer satisfaction, inventory, financial strength and ability to handle large
volume of business.
Each dealer will sign a contract (with rights of ABT Entity to cancel if the
dealer does not meet certain minimum performance requirements) paying ABT Entity
monthly marketing and software fees (the determination of the fees being made on
a country by country basis). The ABT Entity may also receive additional fees
from the offering of various complementary products and services to the
consumer.
ABT Entity will require the dealer to use the DRT system to process requests,
manage customer contacts and record status of purchase requests through
completion.
The ABT Entity will train the ABT Manager, educate the owner of the dealership,
the manager and other relevant personnel on all ABT procedures. Such training
sessions will include periodic visits to dealerships, classes, updates and
reviews of ABT systems and software.
For used car transactions, the ABT Entity may include both dealers and
independent dealers meeting ABT Entity standards (in accordance with the
Universal Autobytel Philosophy). Used cars sold under ABT brand will be sold
under a customer assurance program, which may include a money-back return or
vehicle exchange policy and limited warranty policy. However, such a requirement
will not apply to any "back lot" or exotic used car sales programs. ABT Entity
will require dealers to maintain used car data in a timely manner. Dealers will
be responsible for ensuring used car information is updated to reflect sales
and/or availability.
ABT ENTITY OPERATIONS
ABT Entity will maintain a dealer relations organization to communicate with
dealers and their ABT Managers.
ABT Entity will maintain a consumer communication organization to answer
consumer questions and complaints.
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ABT Entity will survey each consumer within a defined time after a purchase
request is received. Surveys will be reviewed and the conclusions sent to the
participating dealers on a monthly basis.
ABT Entity will remove ABT dealers who do not comply with ABT standards set by
ABT in each country (but adhering to universal ABT philosophy).
ABT Entity will review all technical modifications/extensions with ▇▇▇▇▇▇▇▇▇.▇▇▇
CTO prior to the design, coding and implementation phases of each project. ABT
Entity will abide to technology standards and direction provided by
▇▇▇▇▇▇▇▇▇.▇▇▇. Any deviations from standards must be approved by the
▇▇▇▇▇▇▇▇▇.▇▇▇ CTO in advance of development and implementation. ABT Entity will
ensure all ▇▇▇▇▇▇▇▇▇.▇▇▇ confidential proprietary and copyrighted materials are
secured and used with at least the same care and procedures that the ABT Entity
would use to protect its own confidential proprietary and copyrighted materials.
ABT Entity will provide for 24x7 system availability to the consumer (Web Site)
and dealers (DRT), with only short, off-peak downtime for planned or unscheduled
maintenance. Additionally, ABT Entity will implement a disaster
recovery/business continuity plan to handle potential system/facility outages.
ABT Entity will, as soon as reasonably possible, implement a defined technical
quality assurance process that provides for at least unit and system level
testing of each significant system change. ▇▇▇▇▇▇▇▇▇.▇▇▇ will reserve the right
to oversee QA procedures as necessary to ensure quality of customer/dealer
experience with ABT systems.
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ATTACHMENT C
ABT'S GLOBAL BRAND PROTOCOLS
GLOBAL BRANDING PROTOCOL:
INTRODUCTION TO GUIDELINES, PRACTICES AND PROCEDURES
Introduction
The Auto-By-Tel Corporation has recently changed its name to ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.
and is currently in the process of conducting brand positioning research, which
will be complete in September of 1995. Upon completion of this research,
▇▇▇▇▇▇▇▇▇.▇▇▇ inc. will issue an update to its global brand standards protocol
(and look book), containing all of the new brand identity materials. In the
interim the old book is attached as an example of its contents as well as this
introductory document which is designed to address some of the more immediate
needs.
New Logo
Our new logo embodies some of our initial learning. We have chosen a ▇▇▇▇
symbolizing a road, which signifies a destination that leads to ▇▇▇▇▇▇▇▇▇.▇▇▇ as
opposed to an automobile icon, which is more predictable. This ▇▇▇▇ is highly
differentiated from other companies in the category and positions ▇▇▇▇▇▇▇▇▇.▇▇▇
inc. as the leader. The new logo is reliable, innovative, trustworthy,
contemporary yet timeless. The idea of a road leading to a destination is
empowering for the consumer, reminding them that they are in the driver's seat
when buying through ▇▇▇▇▇▇▇▇▇.▇▇▇ inc. The conveying of the concept of a
destination will create an association with the brand over time.
The logo will be adapted to each country by replacing the domain type that is
relevant to that country; for example, ▇▇▇▇▇▇▇▇▇.▇▇, ▇▇▇▇▇▇▇▇▇.▇▇, ▇▇▇▇▇▇▇▇▇.▇▇,
etc. Also the selling line can be inserted immediately in the lower left. Full
treatments of the logo will be reviewed when the new look book is issued.
Purpose and Function of Global Standards
The purpose of the global brand standards is to clearly define and articulate
the brand's core values and ensure that the brand's positioning remains
consistent and properly communicated throughout all forms of marketing
communication across the globe.
Since a brand is a promise of an experience, it is important that it be
comprised of the intangible as well as the tangible values in order to best
create an enduring relationship
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between ▇▇▇▇▇▇▇▇▇.▇▇▇ and its stakeholder target constituencies - shareholders,
consumers and dealers alike.
What Does the Standard Address
The image below graphically illustrates the intangible components (on the
right), which the global brand protocol is designed to address.
Purpose and Intent of ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s "Global Brand Protocol and Look Book"
The purpose of the global brand protocol and "Look Book" when complete, will be
to aid ▇▇▇▇▇▇▇▇▇.▇▇▇, all its companies, subsidiaries, partners, and licensees
to properly administer and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s intangible assets - the
brand. It is not designed to police licensees: but rather to ensure that the
tenets of strong branding be observed for ▇▇▇▇▇▇▇▇▇.▇▇▇ so that all collateral,
business, advertising, and web site creative and content guarantee quality and
consistency of message. This will ensure that the net impression left in the
mind of target audience is relevant, differentiated, and enduring.
Differentiating ▇▇▇▇▇▇▇▇▇.▇▇▇ by experience (emotional bond) with the customer,
versus just the key rational benefits (e.g. low-cost, haggle-hassle-free, etc.)
will ensure the success of ▇▇▇▇▇▇▇▇▇.▇▇▇.
Role of ▇▇▇▇▇▇▇▇▇.▇▇▇ Brand Management
It is the role of ▇▇▇▇▇▇▇▇▇.▇▇▇ Corporate Marketing to clearly articulate and
communicate the brand's core value, identity, positioning, and Global Brand
Protocol to all ▇▇▇▇▇▇▇▇▇.▇▇▇ inc. companies, subsidiaries, divisions, partners
and licensees.
Role of the ▇▇▇▇▇▇▇▇▇.▇▇▇ Global Brand Agency
It is the role of the global brand agency to develop, create, recommend and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s brand positioning so that it conforms to
▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s brand values. They have the responsibility of managing the
▇▇▇▇▇▇▇▇▇.▇▇▇ brand communications on a global scale while recognizing local
needs. In this role the agency will ▇▇▇▇▇▇▇ the brand with regards to the
quality and consistency of the brand's global advertising.
Role of the Local Agency
It is the role of the local country agency to create successful advertising that
conforms to ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s brand positioning.
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A LOOK AT THE REQUIREMENTS, PROCESS AND INTERACTION BETWEEN ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s
GLOBAL BRAND AGENCY AND THE LOCAL COUNTRY'S AGENCY AS IT RELATES TO ADVERTISING
Generally speaking, ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s advertising (visual and copy content)
must be in synergy with the brand's core values and comply with the brand's
positioning strategy as will be stated in the "Global Brand Protocol & Look
Book" (after the brand positioning project is completed in September).
While this book is dynamic and periodic updates should be expected, it is our
intent to develop an enduring brand positioning, which should remain in effect
over a number of years. All decisions regarding the appropriateness of
▇▇▇▇▇▇▇▇▇.▇▇▇ advertising will be measured against this benchmark.
Some general requirements and procedures which you should expect to see outlined
in the Global Brand Protocol about ▇▇▇▇▇▇▇▇▇.▇▇▇ advertising follows:
Creative
All creative formats and units must:
Feature the appropriate upper and lower case treatment of the company name (e.g.
▇▇▇▇▇▇▇▇▇.▇▇▇ inc., and ▇▇▇▇▇▇▇▇▇.▇▇▇, etc.)
Feature the ▇▇▇▇▇▇▇▇▇.▇▇▇ inc. logo
Feature the ▇▇▇▇▇▇▇▇▇.▇▇▇ tag-line (which will be translated by the global brand
agency into the appropriate language for each county in a way that is mutually
agreeable so that it mutually satisfies the requirements of both the brand and
country's cultural environment.)
Feature the appropriate ▇▇▇▇▇▇▇▇▇.▇▇▇ URL (Uniform Resource Locator) for the
country involved (e.g. ▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇.▇▇, ▇▇▇▇▇▇▇▇▇.▇▇, etc.)
reflect the highest level of moral and ethical standards within the community to
which the commercial's message is to be conveyed
reflect the brand's recommended look and feel (e.g. color palettes, typefaces,
imagery, etc.) of which examples will be provided in the look book.
▇▇▇▇▇▇▇▇▇.▇▇▇ strongly urges all licensees to use the network affiliate of the
global brand agency. If for any reason, the licensee utilizes an agency that is
not part of the global brand agency's network, the following will apply.
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Creative Procedure
Each licensee does not need to submit creative concepts and executions to
▇▇▇▇▇▇▇▇▇.▇▇▇ for prior approval. But it is required that each country submit
copies of all creative materials to ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s global brand agency at
least quarterly. While it is not ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s intention to police
creative, should the marketing materials not conform to the brand's positioning,
▇▇▇▇▇▇▇▇▇.▇▇▇ reserves the right to advise the country to discontinue the use of
any creative that does not properly comply. In the unlikely event that this
should occur, the country will be required to discontinue use of the materials
within 45 days. ▇▇▇▇▇▇▇▇▇.▇▇▇ strongly encourages the country's local agency to
implement an on-going dialogue with the global brand agency (a contact name will
be issued). The frequency and format for this communication can be mutually
agreeable to suit the needs and requirements of both parties, and may expand and
contract based upon the need of each party.
Media Procedure
Each country can determine the specific marketing communications mix (e.g. PR,
Advertising, Promotion, etc.) selection of media (e.g. Internet, TV, Radio,
etc), and selection of specific media vehicles (e.g. stations, publications,
etc), that is most appropriate for its culture and environment. ▇▇▇▇▇▇▇▇▇.▇▇▇
inc. may volunteer from time to time, the sharing of information about media
that has been particularly successful in other countries across the globe. We
will encourage that all partners and licensees share information about what
is/isn't working for the benefit of aggregated learning.
However, it will be required that information about marketing communication mix
and media plans be shared and submitted to ▇▇▇▇▇▇▇▇▇.▇▇▇ Corporation on at least
a bi-annual basis. This may be submitted either in a written or digital format.
Fees for Global Brand Management
(For countries not using the local affiliate of ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s global
agency)
▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s global brand agency will be appropriately organized to
▇▇▇▇▇▇▇ the brand, bring strategic value to ▇▇▇▇▇▇▇▇▇.▇▇▇ inc. and its
licensees, and to facilitate communication among the parties. If the licensee
does not use a local agency that is an affiliate of the global agency,
▇▇▇▇▇▇▇▇▇.▇▇▇ inc. will charge the licensee for any expenses associated with
stewarding the brand.
ADVERTISING OPPORTUNITY ON ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s WEBSITE
▇▇▇▇▇▇▇▇▇.▇▇▇ inc. will offer its licensees an opportunity to participate in its
global web site advertising initiative. ▇▇▇▇▇▇▇▇▇.▇▇▇ inc. plans to offer
advertising on its U.S. site, and on each
37
CONFIDENTIAL-WSGR DRAFT
11/20/98
country's local site if the country chooses to participate. If the licensee
participates, ▇▇▇▇▇▇▇▇▇.▇▇▇ inc. will require to country's site to allocate 50%
of the total pages served and inventory. In return, ▇▇▇▇▇▇▇▇▇.▇▇▇ inc. will
offer licensees the opportunity to share in 50% of the revenues generated after
expenses through this sale.
If the licensee is interested, additional details will be provided after this
program is finalized. In the interim, here are some examples of the guidelines:
Site must be constructed to accommodate advertising
Screen real estate positioning must conform to ▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s global
advertising standards (currently this is a top right position and 3 IAB unit
sizes will be utilized
50% of ad inventory (equal to approximately 50% of total pages served) will be
allocated to this effort.
Licensee has 6 months after launch of site to have prepared for advertising
In Closing, please refer to the attached Global Brand Protocol and Look Book,
which is currently in development. A number of sections have been added since
the last submission.
38
CONFIDENTIAL-WSGR DRAFT
11/20/98
▇▇▇▇▇▇▇▇▇.▇▇▇ inc.'s new U.S. Web site, launched 07/31/98
[GRAPHIC]
Note: Upon completion of the brand positioning, the new selling line will appear
below in the top ledge frame of the site.
39
ATTACHMENT D
SERVICES AGREEMENT
AGREEMENT FOR CONSULTING BY AUTO-BY-TEL
This Agreement for Consulting ("Agreement") is made and entered into as of the
___ day of ___________, 199_ by and between ▇▇▇▇▇▇▇▇▇.▇▇▇ inc., a Delaware
corporation with offices at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
("APT"), and Auto by Tel UK Limited, a ___________ corporation with offices at
_____________ ("ABT/UK"). The ABT/UK desires to retain ABT as an independent
contractor to perform certain development and consulting services for the ABT/UK
as described in the License and Services Agreement between the parties dated
_______________ ("License and Services Agreement"), and ABT is willing to
perform such services on terms set forth more fully below. In consideration of
the mutual promises contained herein, the parties agree as follows:
1. SERVICES.
(a) Work Orders. The parties may from time to time agree upon
certain software development and related services to be provided by ABT under
this Agreement ("Services"). The parties shall develop a description of such
Services in reasonable detail ("Work Order") in a form substantially as set
forth in the Work Order. ABT agrees to perform for the ABT/UK the services
described in each Work Order on the terms and conditions set forth therein. The
parties acknowledge that ABT/UK may have certain obligations under each Work
Order, and all of ABT's obligations will be subject to the prompt performance of
ABT/UK's obligations thereunder. In addition, any delays in ABT's performance of
the Services due to allocation of ABT's development resources in accordance with
requests of ABT/UK for additional Services will not be deemed a breach of this
Agreement. The parties expressly agree that ATTACHMENT E to the License and
Services Agreement will be the initial Work Order for this Agreement.
(b) Change Orders. Any changes to Specifications ("Change
Orders") are subject to mutual agreement. All Change Orders must be coordinated
through a single point of contact for each party, and approved in advance in
writing by CEO of ABT/UK and the CTO of ABT. The parties will discuss any
proposed Change Order, and ABT will use reasonable efforts to estimate any
additional fees that would result from changed or additional Services to be
performed under the Work Order. If the parties cannot agree on whether a Change
Order should be implemented, or upon the related fees, ABT/UK may, at its sole
option and discretion, continue with the Work Order as specified before the
Change Order, or terminate the Work Order and pay ABT for all services performed
up to the effective date of termination. In such a case, ABT shall deliver to
ABT/UK all work in process not yet delivered to ABT/UK under the Work Order;
provided, however, that such work in process will be provided "as is," not
subject to the warranty in Section 10(a).
(c) Change Orders due to Technical Infeasibility. If ABT
decides, in its reasonable discretion, during performance of a Work Order, that
the Work Order is technically infeasible or that ABT, despite using its best
efforts, will not be able to complete the Work Order, ABT shall notify ABT/UK
that a Change Order is required to complete the development, and shall propose a
Change Order to ABT/UK. ABT/UK may, at its sole option and discretion, agree to
the Change Order, or terminate the Work Order,
40
in which case, (a) ABT shall deliver to ABT/UK all work in process not yet
delivered to ABT/UK under the Work Order; provided, however, that such work in
process will be provided "as is," not subject to the warranty in Section 10(a);
(b) ABT/UK will not be obligated to pay for the work performed on that Work
Order after the last-completed Milestone; and (c) ABT shall provide a reasonable
number of hours of free technical support to assist ABT/UK to perform the
remainder of the Work Order by itself or through a third party, up to 10% of the
total hours for which ABT/UK has paid in connection with the Work Order.
2. COMPENSATION
(a) Services. ABT/UK shall pay ABT for performing the Services
as shown in the Work Order.
(b) Expenses. The ABT/UK shall also reimburse ABT for the
reasonable actual travel and living expenses of its personnel engaged in the
performance of Services at locations other than ABT facilities, together with
other reasonable out-of-pocket expenses incurred in connection with performance
of the Services. ABT shall adhere to any travel policy reasonably promulgated by
ABT/UK, provided that ABT may incur expenses up to a total of ________ dollars
without ABT/UK's prior approval.
(c) Payments. ABT shall invoice ABT/UK for all amounts on or
after the due date. Payment terms shall be net ____ days. Any amounts due ABT
under this Agreement not received by the date due shall be subject to a service
charge of one and one-half percent (1.5%) per month, or the maximum charge
permitted by law, whichever is less. Any payment terms set forth in the
applicable Work Order will take precedence over this Section 2(c).
3. CONFIDENTIALITY. All information disclosed under this Agreement will
be subject to Section 10 of the License and Services Agreement.
4. OWNERSHIP. The work product resulting from the Services shall consist
of, and shall operate in conjunction with, multiple elements of intellectual
property, as set forth in the Work Order, approximately in the form set forth in
Exhibit B. The parties' respective rights with respect to such intellectual
property shall be as set forth below. For purposes of this Agreement, the term
"ownership" shall refer to ownership of all intellectual property rights
including, but not limited to, all patent, copyright, trade secret and trademark
rights, as applicable, with respect to the subject intellectual property:
(a) ABT/UK Materials and Pre-Existing ABT/UK Materials. For all
materials designated as "ABT/UK Materials" in the Work Order, ABT agrees that
such materials are the sole property of the ABT/UK, and shall be considered
"works made for hire" as that term is defined in the United States Copyright
Act. ABT further agrees to assign (or cause to be assigned) and does hereby
assign fully to the ABT/UK all such works and the intellectual property rights
relating thereto. For all materials designated as "Pre-Existing ABT/UK
Materials" in the Work Order, ABT agrees that such materials are the sole
property of the ABT/UK, and ABT/UK hereby grants to ABT a non-exclusive,
non-transferable, royalty-free, fully paid up license to use, reproduce, and
prepare derivative works of such materials solely for the purpose of performing
ABT's obligations under this Agreement.
(b) Third Party Materials. For all materials designated as
"Third Party Materials" on the Work Order, the parties hereby agree that such
materials shall be necessary for ABT/UK to use the ABT/UK
41
Materials or ABT Materials, and ABT/UK shall be solely responsible for obtaining
necessary licenses to the Third Party Materials.
(c) Pre-existing Materials and ABT Materials. For all materials
designated as "Pre-existing Materials" or "ABT Materials" in the Work Order,
ABT/UK agrees that such materials are the sole property of the ABT. All work
product resulting from the Services will be deemed "ABT Materials" unless
otherwise designated in the Work Order. ABT hereby grants to ABT/UK a license to
use the ABT Materials as part of the Software, set forth in the License and
Services Agreement. No other grants of licenses or rights to ABT/UK shall be
implied from the provisions stated in this Agreement. ABT/UK shall not
obliterate or remove and will reproduce ABT's intellectual property notices
contained in the ABT Materials or Pre-existing Materials.
(d) Further Assurances. Each party agrees to execute any
additional documents deemed reasonably necessary to effect and evidence the
other party's rights with respect to the intellectual property elements set
forth above.
5. REPORTS. Except as otherwise set forth in the applicable Work Order,
ABT agrees that it will, approximately once per month during the term of this
Agreement or any extension thereof, keep the ABT/UK advised as to ABT's progress
in performing the Services hereunder and that ABT will, as requested by the
ABT/UK, prepare written reports with respect thereto. It is understood that the
time required in the preparation of such written reports shall be considered
time devoted to the performance of ABT's Services.
6. TERM AND TERMINATION
(a) Term. This Agreement will commence on the date first written
above and will continue until final completion of the Services or termination as
provided below.
(b) Termination. The ABT/UK may terminate this Agreement or any
Work Order at any time upon giving ten (10) days' prior written notice thereof
to ABT, provided, however, that ABT/UK shall pay ABT for any Services performed
up to the effective date of termination, and, promptly upon ABT's request, pay
all of ABT's sunk costs related to any terminated Work Order, including
without limitation any cancellation payments to third parties to terminate
contracts entered into by ABT in reliance upon the Work Order. ABT shall deliver
any work in process promptly after such payments. Such work in process will be
provided "as is," and will not be subject to the warranty in Section 10(a).
Either party may terminate this Agreement upon thirty (30) days' notice of any
uncured material breach of this Agreement by the other party.
(c) Survival. Upon such termination all rights and duties of the
parties toward each other shall cease except Sections 3, 4, 8, 9, 10, 11, 12,
and 13 shall survive termination of this Agreement.
7. ASSIGNMENT. Neither this Agreement nor any right hereunder or
interest herein may be assigned or transferred by either party without the
express written consent of the other.
8. INDEPENDENT CONTRACTOR. Nothing in this Agreement shall in any way be
construed to constitute ABT as an agent, employee or representative of the
ABT/UK, but ABT shall perform the Services hereunder as an independent
contractor.
42
9. ARBITRATION. The parties agree that any dispute or controversy
arising out of or relating to any interpretation, construction, performance or
breach of this Agreement will be resolved as set forth in the License and
Services Agreement.
▇▇. ▇▇▇▇▇▇▇▇ AND DISCLAIMER.
(c) ABT represents and warrants to ABT/UK that all software
deliverables specified in any Work Order ("Software"), in the form delivered to
ABT/UK, will perform in substantial accordance with the specifications therefor
in the Work Order, and any other specifications developed in writing pursuant to
the Work Order. If the Software does not perform as warranted, ABT shall use
reasonably diligent efforts to correct the Software in accordance with the
escalation procedures in Attachment F to the License and Services Agreement. The
foregoing are ABT/UK's sole and exclusive remedies for breach of such warranty.
The warranty will apply only if the then-current version of the Software has
been properly installed and used in accordance with the instructions for use.
(b) OTHER THAN AS EXPLICITLY SET FORTH IN THIS SECTION 12, ABT
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF
TITLE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
11. LIMITATION OF REMEDIES AND DAMAGES EXCEPT FOR CLAIMS ARISING FROM
SERVICES PROVIDED HEREUNDER THAT ARE COVERED BY SECTION 9 OF THE LICENSES AND
SERVICES AGREEMENT (A) EACH PARTY'S LIABILITY ARISING HEREUNDER SHALL BE LIMITED
TO FEES PAID BY ABT/UK HEREUNDER, AND (B) NEITHER PARTY SHALL BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INTERRUPTION, WHETHER
FORESEEABLE OR NOT, AND WHETHER ARISING IN CONTRACT, TORT, OR NEGLIGENCE, EVEN
IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
12. ENTIRE AGREEMENT. This Agreement and the Exhibits hereto form the
entire agreement of the parties and supersede any prior agreements between them
with respect to the subject matter hereof.
13. WAIVER. Waiver of any term or provision of this Agreement or
forbearance to enforce any term or provision by either party shall not
constitute a waiver as to any subsequent breach or failure of the same term or
provision or a waiver of any other term or provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ABT/UK: ABT:
By: By:
------------------------------- ----------------------------
43
Print Name: Print Name:
----------------------- ---------------------
Title: Title:
----------------------- -------------------------
44
EXHIBIT A
WORK ORDER FORMAT
Services to be performed by ABT:
Compensation of ABT:
(a) Rate of pay: per
--------- ----------
(b) Total payment limitation:
--------------------------------
(c) Advance payment:
-----------------------------------------
(d) Expenses authorized for reimbursement by the ABT/UK:
(e) Other:
---------------------------------------------------
(f) Expected duration of project:
----------------------------
ABT/UK: ABT:
By: By:
-------------------------------- ---------------------------
Print Name: Print Name:
----------------------- -------------------
Title: Title:
---------------------------- ------------------------
45
EXHIBIT B
ABT/UK MATERIALS
ABT MATERIALS
THIRD PARTY MATERIALS
PRE-EXISTING MATERIALS
PRE-EXISTING ABT/UK MATERIALS
46
[*] Confidential Treatment Requested
ATTACHMENT E
WORK ORDER FOR INITIAL LOCALIZATION SOFTWARE DEVELOPMENTS
DEVELOPMENT OF SPECIFICATIONS AND ACCEPTANCE TEST PLAN. The parties intend that
the performance of the Services will result in the production of one or more
specifications describing the requirements to modify the Software (the
"Specifications"), which will include a delivery schedule, estimated fees and
expenses relating thereto, and associated deliverables ("Deliverables") and
milestones ("Milestones"), and a plan for acceptance testing of the Software
modifications to be performed ("Acceptance Test Plan"). ABT/UK will provide a
written request for the Services to ABT in a mutually acceptable format. ABT
will prepare detailed Specifications for such Services in a mutually acceptable
format. Each Specification must be agreed upon in writing by the CEO of ABT/UK
and the CTO of ABT.
If the parties cannot agree on the Specifications or Acceptance Test Plan,
either party may terminate this Work Order upon written notice, and neither
party will have any further obligations under this Work Order. Once the
Specification is complete, the Specification will be added to this Agreement,
and ABT shall perform the Services described therein. Any changes to a
Specification after the Specification has been agreed to by the parties must be
affected in accordance with the "Change Orders" section set forth below. The
parties intend that there will be at least one Deliverable or Milestone for each
month during which Services will be performed.
ACCEPTANCE TESTING. Upon delivery by ABT of any Deliverable consisting of
software or modifications thereto, ABT/UK shall review such Deliverable
according to the Acceptance Test Plan to determine whether it conforms in all
material respects to the applicable Specifications. ABT/UK shall, no later than
ten (10) working days after receiving such Deliverable, review and accept such
Deliverable that meets the Specifications. Deliverables submitted for acceptance
that ABT/UK does not reject in writing within such period will be deemed
accepted. If ABT/UK rejects such a Deliverable, ABT/UK shall provide ABT with
written notice setting forth in reasonable detail why the Deliverable fails to
meet the Specifications. ABT will have thirty (30) days from notice of rejection
to resubmit such Deliverable to ABT/UK for acceptance. This procedure will be
repeated until the Deliverable is accepted. If any Deliverable is rejected more
than twice ABT/UK may terminate this Agreement in accordance with the provisions
of this Work Order below entitled "Termination." The Acceptance Test Plan must
include, at a minimum, for ABT to test the Deliverables according to the
then-current quality assurance procedures of ABT. Such testing must be approved
in writing by the CTO of ABT. Acceptance testing must be approved in writing by
the CEO of ABT/UK.
FEES. The fee for the Services (the "Fees") will be [*]. The development of the
Specifications and Acceptance Test Plan will be on a time and materials basis.
All work thereafter will be payable on a time and materials basis upon
completion of Milestones, as set forth in the paragraph below entitled "Fees."
As part of the Specifications, the parties will agree on a budget for each
Milestone. ABT will inform ABT/UK as soon as reasonably possible, but in no
event later than the next weekly status report, if it appears to ABT that the
Services required to complete a Milestone will exceed the amount budgeted by
more than 10%. In such event, if the parties cannot agree on a revised budget
for such Milestone, either party may terminate this Work Order immediately upon
written notice, and if this Work Order is terminated, neither party will have
any further obligations under this Work Order. ABT/UK's payment of Fees is
subject to the provisions of Attachment G entitled "Penalties for Large
Developments."
47
PAYMENT. ABT shall invoice ABT/UK each month for Fees and expenses due for
Services performed during the previous month. ABT/UK shall pay ABT any expenses
set forth on each invoice, within (10) days after receipt of the invoice.
ABT/UK shall pay ABT any Fees for a particular Milestone upon acceptance of such
Milestone in accordance with the Acceptance Test Plan. ABT may credit against
any such Fees any Minimum Maintenance Fees paid under the License and Services
Agreement.
TERMINATION. If a Deliverable is rejected more than twice, as described above in
the Section entitled "Acceptance Testing," or if the final Deliverable is not
accepted by ________ , ABT/UK may provide written notice of its intent to
terminate (a) this Agreement; or (b) both, this Agreement and the License and
Services Agreement in accordance with Section 11.2(c). If ABT/UK terminates
this Agreement under this paragraph, notwithstanding Section 6(b) of this
Agreement, ABT/UK may withhold any amount associated with the current Milestone
that it has not yet paid. For avoidance of doubt, any Minimum Maintenance Fees
paid under the License and Services Agreement will not be refunded.
ABT/UK: ABT:
By: By:
-------------------------------- ---------------------------
Print Name: Print Name:
----------------------- -------------------
Title: Title:
---------------------------- ------------------------
48
ATTACHMENT F
ABT ESCALATION PROCEDURES
ABT - International Technical Support Escalation Procedure
There will be one named primary technical support contact and one named backup
support contact. All requests for technical support must come from the primary
support contact. In the event the primary contact is not available, the backup
contact may submit the technical support request. The primary support contact
will be ____________ and the back-up support contract will be ______________.
Changes to the primary and/or backup support contacts must be received by ABT in
writing 1 business day prior to them being effective.
All local Technical Support escalation will occur prior to any escalation to
Auto-By-Tel International Technical Support team by either the primary or backup
support contact. All infrastructure (Hardware/Network/Operating System/SQL
Server/IIS Server) errors must be corrected prior to escalation.
All Technical Support calls related to remaining APPLICATION ERRORS or SYSTEM
ERRORS with severity level of ERROR OR HIGHER should be routed through the ABT -
Corporate NTS Support person at 1-949-xxx-xxxx. Response time will be as
specified in table below.
All Technical Support calls that related to errors with severity level of
WARNING or APPLICATION PROBLEMS (as defined below) should be referred to the ABT
- International Technology Support Coordinator at 1-949-xxx-xxxx.
The quoted response times relate to the time required to have a qualified
technical support person contact the person who made the technical support
request. Depending on the severity of the problem, reasonably diligent efforts
will be made to resolve the problem as soon as possible within the guidelines
under RESPONSE LEVEL.
CATEGORY DESCRIPTION
--------------------------------------------------------------------------------
Application Problem Problem related to the use of a specific application
program or module. The program does not appear to be
functioning correctly, however, no error messages have
been received.
Application Error An application program or module has issued an error
message. The error was not issued by the underlying
technology, (i.e. the network, operating system,
database management system server or internet server.
System Error An error message has been received when executing an
application or web page. The error message originated
from the underlying technology, not the application
itself.
SEVERITY DESCRIPTION RESPONSE TIME RESPONSE LEVEL
WARNING Provides information or warning message only. 72 hours Effort during
Does not impact the overall operation of Normal Bus.
the system. Hours
ERROR Error interrupts processing of a single 12 hours (Next Effort during 7
application or module. System operation Business Day) days/week 8am-
continues to support primary business functions. 5pm, until resolved.
49
SEVERE ERROR Error interrupts processing of multiple and/or 4 hours Effort 7
primary business applications. Primary business days/week 5am
operations are impacted. - 9 pm, until
resolved
FATAL ERROR Error causes system to become unavailable. All 1 hour Effort 7 x 24,
business processing is aborted. until resolved
ABT will provide help desk support (i.e. other than reporting of Errors) by
telephone from the hours of 2:30 p.m. to 5:30 p.m. Pacific Time on U.S. business
days. ABT will handle all help desk inquiries during other hours by U.S. next
business day fax/email back.
THE FOLLOWING CHART EXPLAINS THE RESPONSIBILITIES OF ABT AND ABT/UK REGARDING
MAINTENANCE AND SUPPORT.
TECHNICAL SUPPORT/MAINTENANCE EXAMPLES
SITUATION ABT ABT/UK COMMENTS
--------- --- ------ --------
ABT/UK SQL Server configuration parameter Assisted if Requested Responsible for Fix Any Hardware, Operating
(e.g. number of locks) is changed by (Maintenance Hours) System, or Third-party
ABT/UK Staff for tuning purposes. SQL product configuration
Queries begin failing because there are issues/changes/problems
not enough locks available. should not be the
responsibility of ABT.
ABT/UK Servers are running the UK-English Assisted if Requested Responsible for Fix Same as above. ABT/UK should
(rather than US English) versions of (Maintenance Hours) work with Microsoft (or
the Microsoft software (NT, SQL Server, IIS). other vendor) technical
An error occurs in one of those support to resolve problem.
third-party programs that causes the system to
fail. The error is related to the fact that the
UK-English version of the software is at a
slightly different revision level than the
US version.
ABT software uses a complicated algorithm Responsible for Fix. Since this is a "bug" that
to calculate distance between two (Not counted against is part of the core system,
(longitude, latitude) points. The ABT/UK Maint Hours) then it should be fixed as
team notices that the distance calculation part of the ABT ongoing
algorithm is not implemented correctly, maintenance efforts.
which causes distances to be noticeably
incorrect. The "bug" is present in the ABT
system as well. It had not been detected.
50
SITUATION ABT ABT/UK COMMENTS
--------- --- ------ --------
ABT (on behalf of ABT/UK) changes Will perform Responsible for Fix Since the ABT development team
the distance calculations throughout modifications simply made changes specified by
the system to multiply the US Miles (Maintenance Hours) ABT/UK staff, AFT/UK staff is
distance by a conversion factor to responsible for the correction. (Had
arrive at an appropriate distance in the error occurred because the ABT
UK Miles. ABT/UK analyst provided ABT Development team had not implemented
with specification for the conversion the specification correctly, the fix
calculation and factor. As it turns would be preformed by ABT at no cost
out, the specification provided by the to the UK)
UK analyst is incorrect.
ABT/UK data provider changes format Assist if Requested Responsible for Fix ABT/UK is responsible for day-to-day
of data extracts that feed ABT system. (Maintenance Hours) monitoring of systems and for all data
ABT/UK staff attempt to import data inputs/outputs. Many system problems
into ABT System. Importing this data can be traced back to problems with
corrupts data in ABT System. Corrupted improper data in the system. It is not
data causes ABT system to not operate always possible to differentiate a
correctly. Depending on the extent of programming issue from a data issue
the data corruption, this problem might up front. Sometimes, it takes several
be detected immediately or it may be hours/days to determine the root cause
so subtle that it is not detected for of a problem. ABT hours spent in this
days or weeks. Problem Identification process will be
charged as Maintenance Hours if the
root cause of the problem is found to
be ABT/UK responsibility.
51
SITUATION ABT ABT/UK COMMENTS
--------- --- ------ --------
ABT/UK IT staff develop several Assist if Requested Responsible for Fix Again, the relationship between the
management reports that run against (Maintenance Hours) system performance problem and the
production data. System performance execution of the management reports
is significantly impacted by execution may not be clearly understood. For
of the management reports. example, in the first month or two of
operation, ABT/UK staff may develop
these reports and the reports may run
quickly because there is a relatively
small amount of data in the database.
Twelve (12) months into the operation
of the system, the performance seems
to be very poor compared to user
expectations. Since those reports were
written 9-12 months ago, the ABT/UK
staff don't relate the performance
problems to those reports. They
complain to ABT (Technical Support)
about the performance issues. ABT
spends two weeks trying to analyze the
problem. Eventually, the source of the
problem is identified. ABT/UK should
be responsible for the ABT efforts.
ABT staff train ABT/UK IT staff on Assist if Requested Responsible for Re- ABT/UK is responsible for paying for
operating procedures for software. (Maintenance Hours) Training re-training.
ABT/UK IT turnover occurs, requiring
additional training.
Suppose ABT has a report that shows Assist if Requested Responsible for ABT/UK management notice a
summary level purchase request (Maintenance Hours) Development of discrepancy between the overall
counts sorted by dealer within sales new report without purchase request report and the
region. Further, suppose the report exclusion summary report that excludes green
excludes requests that are for green cars. They report it as a bug.
cars because the ABT sales However, ABT technical support
organization requested that exclusion doesn't consider this a bug because it
when the report was originally meets the original specification. So it
defined. (For whatever reason). is not changed. IF ABT/UK management
required a new report that did not
exclude green cars, that would
constitute development work and be
paid for with development hours.
ABT/UK does not have access to Provide development License new Where a UK specific piece of third
Infopower Delphi libraries. ABT/UK support per services product, pay for party software requires enhancements
finds another product that provides agreement. development per to ABT/UK code ABT could do this
similar functionality. ABT asks ABT services agreement. work under the Services Agreement,
to incorporate this new product in but this would be chargeable to ABT/UK.
place of the Infopower library.
Microsoft introduces a new version of Upgrade to core Responsible for Where an upgrade to third party
SQL Server. ABT incorporates new system provided to obtaining license for software demands adjustment to the
version of SQL Server into ABT core UK for free under upgraded version of standard ABT system in order for it to
52
SITUATION ABT ABT/UK COMMENTS
--------- --- ------ --------
system. ABT Releases new version of Maintenance and SQL Server from operate effectively, this should be
core system. Support Services. Microsoft. treated as an upgrade to the ABT
Re-localization is ABT/UK would also system and therefore passed on to
performed at pay for any ABT/UK free of charge under
ABT/UK's cost per localization related Maintenance and Support Services.
services agreement. to the new upgrade
of the ABT system
per services
agreement.
53
ATTACHMENT G
SOFTWARE DEVELOPMENT RESOURCE COMMITMENT PROCEDURES
1. PURPOSE. This document is designed to govern the processes for planning
software Localization for ABT/UK, and to describe when ABT will be obligated
to assign software engineers and other technical and management personnel to
perform such Localization. In this document, assigning software engineers
and other technical and management personnel to a project, and providing the
services of those personnel, will be described as "committing resources."
For avoidance of doubt, ABT has already agreed to its commitment of
resources for the Work Order for the Initial Localization Services.
2. MAINTENANCE AND SUPPORT. This document describes the obligations of ABT to
commit resources covered by the 2,500 annual pre-paid hours of Maintenance
and Support services ABT is required to commit under the License and
Services Agreement, as well as other resources that may be committed by ABT
as described in this Attachment G. ABT will commit resources up to 1/12 of
such 2500 hours (i.e. 208 hours) (the "Minimum Monthly Commitment") each
month upon ABT/UK's request in its sole discretion. If ABT/UK does not
request a resource commitment in a given month, or requests less than the
Minimum Monthly Commitment in a given month, ABT/UK may carry forward each
month's Minimum Monthly Commitment into the next 2 months. Any requests by
ABT/UK for development that would require ABT to carry forward more hours,
or carry forward any hours for more than one month, will be subject to the
resource commitment requirements for small and large developments set forth
in this Attachment G.
3. SMALL AND LARGE DEVELOPMENTS. Two processes will exist - one to manage small
developments, where "small developments" means those that ABT estimates will
be performed in 10 man days or less; and another to manage large
developments, where "large developments" means those that ABT estimates will
be performed in more than 10 man days.
4. MONTHLY MEETINGS. The parties will meet monthly to plan large and small
developments. Progress on all developments will be monitored at such monthly
meetings. All such meetings will take place at ABT corporate headquarters in
Irvine. For large developments, ABT shall provide weekly updates by
telephone or email.
5. SMALL DEVELOPMENTS. Small developments will have a lead time of 1 month;
i.e. ABT may, if resources are available, but will not be obligated to,
commit resources for any small development sooner than 1 month after the
initial request by ABT/UK. ABT will be obligated to commit resources of a
minimum of 20 man days in such month; 40 man days in the next month; and 60
man days in the next month. For example, if ABT/UK requests on January 1 for
ABT to perform a small development, then ABT shall commit resources of 20
man days in February, 40 man days in March, and 60 man days in April.
6. LARGE DEVELOPMENTS. Large developments will have a lead time of 3 months;
i.e. ABT may, if resources are available, but will not be obligated to,
provide services for any Large Development any sooner than 3 months after
the initial request by ABT/UK. ABT will be obligated to commit resources of
a minimum of 60 man days in such month; 80 man days in the next month; and
100 man days in the next month. For example, if ABT/UK requests on January 1
for ABT to perform a
54
large development, ABT shall commit resources of 60 man days in April, 80
man days in May, and 100 man days in June.
7. OVERALL COMMITMENTS. For large and small developments combined, ABT will not
be obligated to commit resources of more than 200 man days in any month. Of
these 200 man days, ABT will not be obligated to commit resources of more
than 60 man days to small developments.
8. PRIORITY OF DEVELOPMENTS. For each new development, ABT/UK must specify
which ongoing developments, if any, will be prioritized above and below the
new development. Any changes to priority of developments must be agreed in
writing between the parties. Unless otherwise agreed, ABT may prioritize
large developments over small developments, and may further prioritize
resources that it is required to commit under this Attachment G using its
professional judgment. For any development that takes priority over another,
ABT may, in its sole discretion, use resources that would be otherwise
committed to the lower priority development to finish the higher priority
development in a timely fashion, if in ABT's reasonable discretion, it is
necessary to do so.
9. PENALTIES FOR LARGE DEVELOPMENTS. For a large development, if ABT fails to
complete the Work Order by the estimated completion date because ABT failed
to commit the resources it was required to commit under this Attachment G,
ABT shall, upon ABT/UK's request, complete the development, but ABT/UK will
not be obligated to pay ABT for the price of the "undelivered hours," which
means resources required to be committed under Attachment G, less the
resources actually provided at the estimated project completion date.
10. TECHNICAL FEASIBILITY. If ABT, in its reasonable discretion, determines that
a requested Localization is not technically feasible, ABT will not be
obligated to commit resources to perform such Localization.
55
ATTACHMENT H
DRT END USER LICENSE
DRT
DEALER REAL TIME ACCESS AGREEMENT
THIS AGREEMENT IS ENTERED INTO THIS _____, DAY OF _____ BETWEEN
AUTO-BY-TEL MARKETING CORPORATION, A DELAWARE CORPORATION WITH ITS PRINCIPAL
PLACE OF BUSINESS LOCATED AT ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ ("LICENSOR"), AND __________ A(N) ____________ LIMITED LIABILITY
CORPORATION, WITH ITS PRINCIPAL PLACE OF BUSINESS LOCATED AT ___________________
("LICENSEE").
WHEREAS, LICENSEE HAS EXECUTED AN AUTO-BY-TEL MARKETING CORPORATION 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 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.
56
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 LOGON 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, 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)
57
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.