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EXHIBIT 10.19
[*] Confidential Treatment has been requested for certain portions of this
exhibit.
J.D. POWER AND ASSOCIATES
LICENSE AGREEMENT
This License Agreement (the "Agreement") is dated as of June 4, 1998 by and
between J.D. POWER AND ASSOCIATES, a California corporation, and Auto-By-Tel
Corporation, a Delaware corporation, which together with its wholly-owned
subsidiary, Auto-By-Tel Marketing Corporation, a Delaware corporation, is
referred to herein as "Licensee."
1.1 GRANT OF LICENSE.
(a) J. D. Power and Associates hereby grants to Licensee a nonexclusive
license to use the trade name and services mark, "J. D. Power and Associates,"
(collectively called the "Service Marks") in connection with the promotion and
advertising of the claim(s) arising out of the J. D. Power and Associates 1998
Dealer Satisfaction With Online Buying Services Study(SM) as set forth on the
attached Exhibit 1 (the "Claims") as follows:
(i) On the proprietary Extranet for clients located in the United
States operated by Licensee presently known as the Dealer Real
Time System ("DRT").
(ii) In print or other traditional advertising media primarily
circulated in the United States and Canada; and
(iii) In Licensee's media /press releases ("Press Releases")
circulated in United States and Canada.
(b) J. D. Power and Associates will sell to Licensee merchandise described
in Exhibit 4 bearing the Service Marks and Claims (the "Merchandise") provided
that Licensee and any person or entity acting on behalf of Licensee first
obtains written approval for each use of the Service Marks and Merchandise from
J. D. Power and Associates pursuant to Section 1.4 hereof. Licensee shall
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[*] Confidential Treatment Requested
not use any of the Service Marks or Merchandise except as expressly permitted by
the terms of this Agreement.
(c) Use of the Claims as contemplated herein shall begin upon date of
execution of this Agreement and shall continue until [*] inclusive.
1.2 USE BY LICENSEE'S DISTRIBUTOR'S, DEALERS, DEALER ASSOCIATIONS AND THEIR
ADVERTISING AGENCIES.
(a) J.D. Power and Associates will permit Licensee's distributors,
dealers, dealer associations and their advertising agencies to use the Service
Marks in connection with the promotion and advertising of the Claims for the
term of this Agreement, provided that such distributors, dealers, associations
and agencies first execute and deliver to J.D. Power and Associates a written
agreement for the express benefit of J.D. Power and Associates, in the form
attached hereto as Exhibit 2, to be bound by the terms of this Agreement.
(b) It is the obligation of Licensee to advise all parties acting on behalf
of Licensee, and all of Licensee's distributors, dealers, dealer associations
and their advertising agencies, of the rights and obligations stated herein.
Once such advice has been given by Licensee, Licensee has no further obligation
to monitor the compliance of its distributors, dealers, dealer associations and
their advertising agencies with the terms of this License Agreement.
1.3 J.D. POWER AND ASSOCIATES' OWNERSHIP.
Licensee acknowledges that J.D. Power and Associates is the exclusive owner of
the Service Marks, and agrees to do nothing inconsistent with such ownership.
Licensee agrees that the license or use of the Service Marks shall not create
any
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interest or right, express or implied, in Licensee except as set forth in this
Agreement. Licensee shall not grant, assign, convey, sublicense or transfer any
of its rights or obligations hereunder without the written consent of J.D. Power
and Associates except as expressly permitted by this Agreement.
1.4 USE OF SERVICE MARKS AND QUALITY CONTROL.
(a) Licensee shall faithfully reproduce the Service Marks and Claims as the
same may be modified from time to time by J.D. Power and Associates in its sole
discretion. J.D. Power and Associates agrees to give Licensee not less than
thirty (30) days' written notice of any such modifications.
(b) No Service Mark may be used unless the entire text of each proposed use
is first submitted to J.D. Power and Associates for review, along with samples
which are accurate and true representations of the final form of the proposed
use of the Service Mark, and is first "Approved As Is" on the written form that
J.D. Power and Associates then uses for such purposes. Once a specific creative
execution has been so approved, it can be re-used without additional approval.
If any changes of any kind whatsoever are made to the content of a creative
execution that has been previously approved, it must again be submitted to J.D.
Power and Associates for review and approval before it is used. Licensee shall
comply with the then current Guidelines for J.D. Power and Associates
Advertising Usage Approval, the current version of which is attached as
Exhibit 3.
(c) No Merchandise may be used unless a written proposal describing each
proposed use is first submitted to J.D. Power and Associates for review, and
unless such proposed use is first "Approved As Is" on the written form that J.
D. Power and Associates uses for such purposes. If any changes of any kind
whatsoever are made to the use of the Merchandise that has been previously
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[*] Confidential Treatment Requested
approved, the new proposed use must again be submitted to J.D. Power and
Associates for review and approval.
2.1 LICENSE FEE.
(a) Licensee shall pay a one-time license fee of [*] and submit a
signed License Agreement prior to any advertising or promotional use of any
claim. Liquidated damages in the amount [*] or, in the case of Merchandise,
twice the purchase price of the Merchandise involved, will be paid for any
creative execution of advertising or public relations/promotional use of a
Service Mark for which prior written approval from J.D. Power and Associates was
not obtained.
(b) J.D. Power and Associates has the right, upon reasonable notice, at its
sole cost, to have an inquiry conducted by an independent party of Licensee's
media schedules, tear sheets and other documents relating to use of the Service
Marks.
3.1 INFRINGEMENT OF THE SERVICE MARKS.
If any third party's unauthorized or incorrect use of the Service Marks comes to
the attention of Licensee, Licensee shall give J.D. Power and Associates prompt
notice of all details. Licensee shall cooperate and assist J.D. Power and
Associates in its investigation and prosecution of any such unauthorized or
incorrect use but shall have no right to commence any action, or proceeding
concerning infringement of the Service Marks.
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3.2 INDEMNITY.
J.D. Power and Associates does not endorse any of Licensee's Claims, and
Licensee shall indemnify J.D. Power and Associates with respect to all losses or
damages, including reasonable attorneys' fees that relate in any way to
Licensee's use of the Service Marks; provided, however, that Licensee shall have
no liability to J.D. Power and Associates for the acts or omissions of J.D.
Power and Associates or its employees.
4.1 TERM.
This Agreement shall be effective as of the date of this Agreement and shall
remain in effect as provided in Section 1.1.
4.2 TERMINATION.
J.D. Power and Associates may terminate this Agreement upon written notice if
Licensee commits or threatens to commit any breach of this Agreement unless
Licensee withdraws the threat or cures the breach within five (5) days after the
date of such notice. Licensee may terminate this Agreement at any time upon 30
days prior written notice to J.D. Power and Associates. Licensee shall
discontinue all use of the Service Marks or any confusingly similar or
conflicting names or service marks after the effective date of the termination
or expiration of this Agreement, and will destroy all Merchandise remaining in
Licensee's possession, custody, and or control.
5.1 AMENDMENT.
No waiver, alteration or amendment of this Agreement shall be effective except
pursuant to a writing by an authorized representative of the party to be bound
thereby.
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IN WITNESS WHEREOF, the duly authorized representatives of J.D. Power
and Associates and Licensee have executed this Agreement as of the date first
set forth above.
J.D. POWER AND ASSOCIATES AUTO-BY-TEL CORPORATION
BY: [SIG] BY: [SIG]
------------------------------ ------------------------------------
ITS: CFO ITS: SR. V.P. MARKETING
------------------------------ ------------------------------------
AUTO-BY-TEL MARKETING CORPORATION
BY: [SIG]
------------------------------------
ITS: President
------------------------------------
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5.2 GOVERNING LAW.
This Agreement shall be governed by and interpreted in accordance with the
internal laws of the State of California.
5.3 NO ENDORSEMENT.
It is understood that J.D. Power and Associates approval of creative executions
submitted to it for review does not constitute an endorsement by J.D. Power and
Associates of any of Licensee's Claims.
5.4 WHOLE AGREEMENT.
This Agreement constitutes the complete, final and exclusive statement of the
terms of the agreement between the parties with respect to its subject matter
and supersedes any and all other agreements, written or oral, with respect
thereto.
5.5 HEADINGS.
The headings in the Agreement are for convenience only and are of no legal
effect.
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EXHIBIT 1
J.D. POWER AND ASSOCIATES 1998 DEALER SATISFACTION WITH ONLINE BUYING
SERVICES STUDY(SM)
AUTO-BY-TEL CORPORATION AND AUTO-BY-TEL MARKETING CORPORATION
-------------------------------------------------------------
"#1 in Dealer Satisfaction With Internet Buying Services"
Based on top ranking in Dealer Services, Web Site Technology and Sales
Effectiveness.
DISCLAIMER: J.D. POWER AND ASSOCIATES 1998 DEALER SATISFACTION WITH ONLINE
BUYING SERVICES STUDY(SM). STUDY CONDUCTED AMONG DEALERSHIP INTERNET SPECIALISTS
WHO COMPLETED 540 INDIVIDUAL EVALUATIONS.
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EXHIBIT 2
AGREEMENT TO BE BOUND
- --------------------------------------------------------------------------------
(name of distributor, dealer, dealer association or advertising agency)
hereby agrees, for the express benefit of J.D. Power and Associates, to be bound
by the terms of the License Agreement between J.D. Power and Associates and
Auto-By-Tel Corporation and Auto-By-Tel Marketing Corporation.
- ------------------------------------
By:
------------------------------
Its:
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EXHIBIT 3
GUIDELINES FOR LICENSED USE OF
J.D. POWER AND ASSOCIATES NAME
OBJECTIVE
J.D. Power and Associates marketing information provides data to ensure that
consumer needs are properly identified and addressed. While the purpose and
intent in providing this information has not been promotional use, we realize
that manufacturers, and their distributors are able to establish product
differentiation by doing so. It will always be the goal of J.D. Power and
Associates to encourage our subscribers to use the information we collect to
meet the needs of a consumer-driven marketplace and not merely create a contest
ranking.
In light of the above, widespread use of J.D. Power and Associates marketing
information findings in advertising has required us to establish a licensing
arrangement with formal policies and procedures for reviewing all materials
which use information derived from J.D. Power and Associates proprietary
information. These policies and procedures are intended to protect:
1. Our clients from making misstatements about the information used,
thereby preventing costly production problems (e.g., network
disapproval).
2. The findings of the studies conducted by J.D. Power and Associates.
3. Manufacturer claims approved by J.D. Power and Associates.
4. Consumers from misrepresentation.
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GUIDELINES FOR LICENSED USE OF
J.D. POWER AND ASSOCIATES NAME
POLICIES/PROCEDURES
J.D. Power and Associates, via the signed license agreement, permits licensees
to use the specifically awarded claim from J. D. Power and Associates' survey as
part of their print or broadcast advertising promotion, or public relations
provided that:
a. the manufacturer or the United States affiliate of the manufacturer is
a paid subscriber to the study being cited, and has committed via a
signed Letter of Intent to be a subscriber of the study during the
period that the advertising is placed, and has signed and executed a
license agreement with J.D. Power and Associates.
b. the advertiser or its agency cites data from the most recently
published version of the study containing the specific claim.
c. the specific data cited is in the format and context used solely in
the respective study's management report.
d. advertising claims promote the advertiser's positive results without
denigrating other manufacturers.
e. only manufacturers ranking above industry average may be identified.
Any segment that falls below industry average will not be permitted in
an advertising claim. Manufacturers shall not disclose to advertising
associations specific comparisons with makes or models that fall in
the lower half of rankings.
f. advertising claims are judged to be consistent with the findings from
the survey cited.
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GUIDELINES FOR LICENSED USE OF
J.D. POWER AND ASSOCIATES NAME
g. a disclaimer is included that identifies the source of the data to the
appropriate J.D. Power and Associates survey and identifies the number
of consumers responding to the survey.
h. advertising claims have been reviewed and written approval has been
granted by J.D. Power and Associates. Review complete upon receipt of
claim approval (form indicated "Approved As Is").
i. clear and conspicuous disclosure of all information must be included
in advertising. Disclaimers must not be relied upon to convey full
disclosure.
j. all creative executions submitted must include a representation of
visuals that will accompany advertising.
k. the advertiser and consumer understand that the use of the J.D. Power
and Associates trade name and service mark does not in any way imply
endorsement of advertising claims or imply that J.D. Power and
Associates has rated, endorsed, or chosen any particular make or
model.
1. in order for J. D. Power and Associates to better monitor usage and
proper dissemination of information from syndicated studies,
manufacturers/distributors shall provide J.D. Power and Associates
with a complete copy of all materials taken from J. D. Power and
Associates studies and forwarded internally.
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GUIDELINES FOR LICENSED USE OF
J.D. POWER AND ASSOCIATES NAME
AWARD/LOGO REPRODUCTION
The following details the policy for the use of the J.D. Power and Associates
Service Mark reflecting the J.D. Power and Associates award ("Award") or
circular award logo, hereinafter ("Logo").
1. The Award must be an actual photographic representation. Photographic
representation excludes the use of line art, computerized
presentation, or any other non-photographic presentation.
2. The circular J.D. Power and Associates Logo contained in the Award
must be 1" (one inch) minimum in its final reproduced form. There
will be no exceptions to this policy.
3. The final version of the Award must include the 1" minimum circular
Logo and all other features of the Award must be proportionally
correct.
4. There is only one situation that allows reproduction of the Logo by
itself, (outside the context of the full award representation), and
that is use by the awardees of the "#1 Customer Satisfaction,"
"Airline," "Tire," "Computer," and "Medium Duty Truck" studies. All
other advertising featuring the Award must include a photographic
reproduction of the actual Award following the above guidelines.
Advertising or promotion that does not meet the above criteria shall not be
granted permission for use in public media. If an advertisement is aired or
published that does not conform to the above standards, J. D. Power and
Associates reserves the right to take appropriate legal or administrative
action.
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GUIDELINES FOR LICENSED USE OF
J.D. POWER AND ASSOCIATES NAME
CONTACT
The Advertising Specialist at J.D. Power and Associates will be responsible for
coordinating the review of the claim and issuing the release for its use.
J.D. Power and Associates will attempt to process all requests within three
working days of receipt of the proposed advertising copy and will strive to
accommodate special client timing needs. Maximum turnaround time for responding
to requests will be five working days.
IMPORTANT: In an effort to protect your interests as well as the integrity of
the information produced by J.D. Power and Associates, we would appreciate your
assistance in helping us monitor what may be inappropriate or incorrect usage of
J.D. Power and Associates marketing information. In such cases, please notify
the Advertising Specialist.
POLICY EFFECTIVE DATE: REVISED FEBRUARY 1998
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EXHIBIT 4
IN CONNECTION WITH THE promotion of Claims, Licensee will purchase any and
all merchandise (the "Merchandise" from J.D. Power and Associates that bear the
Service Marks and Claims, provided that Licensee agrees to be bound by the terms
of the License Agreement by signing and delivering to J.D. Power and Associates
a signed License Agreement or, in the case of distributors, dealers, or
advertising agencies, an Agreement to be Bound (Exhibit 2).
According to the License Agreement, all proposed Merchandise using the
Service Marks or Claims must be reviewed by J.D. Power and Associates, and
submitted along with written descriptions of any proposed use of the
Merchandise. This will be sent either by fax or mail. Merchandise is then
reviewed and will receive an "Approved As Is" status before J.D. Power and
Associates will move forward with production of Merchandise.
Merchandise available will be on a variety of items and in a range of
costs. J.D. Power and Associates has established this Merchandise program to
ensure that all items bearing the J.D. Power and Associates Service Marks and
Claims retain their official status and are of the highest quality reproduction
and the integrity protected through the entire creative and production process.
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[*] Confidential Treatment Requested
[J.D. POWER AND ASSOCIATES LETTERHEAD]
INVOICE NO.: 16895
INVOICE DATE: 12/30/98
PURCHASE ORDER NO.:
CLIENT NO.: 124409
BILL TO: Mr. Eric Schaefer
AUTOBYTEL.COM SHIP TO:
18872 MacArthur Blvd.
Irvine, CA 92612
DESCRIPTION
1 License Fee for extension of license for "#1 in Dealer
Satisfaction with Online Buying Services" claim to
[*] [*]
8020:
NET SALES [*]
SALES TAX
TOTAL AMOUNT DUE [*]
PAYMENT DUE UPON RECEIPT
Interest at the rate of 2% per month will be charged on any account over 30 days
past due.