EXHIBIT 10.27
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY
FILED HEREWITH OMITS THE INFORMATION SUBJECT TO THE CONFIDENTIALITY REQUEST.
OMISSIONS ARE DESIGNATED AS [****]. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
COMMERCIAL AGREEMENT
This Agreement ("Agreement") is made and entered into as of the later of the two
signature dates below (the "Effective Date"), by and between GREENFIELD ONLINE,
INC., ("GFOL") a Delaware corporation with its principal place of business at 00
Xxxxx Xxxx, Xxxxxx, XX 00000, and MICROSOFT CORPORATION, a Washington
corporation with its principal place of business at Xxx Xxxxxxxxx Xxx, Xxxxxxx,
XX 00000 ("Microsoft").
WHEREAS, the parties have agreed to enter into a business relationship regarding
an online Market Research Survey Service that will be developed, marketed and
served by GFOL and distributed by Microsoft over its MSN website.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
Microsoft and GFOL hereby agree as follows:
1. DEFINITIONS.
"CHANNEL" means a group of content-related secondary web pages within a
web site that are devoted to a particular subject (such as Careers,
Entertainment, News or Travel), the top level page of which group is
accessed directly from a web site's home page, a web site's fixed
navigation links and other placements.
"CLICKS" mean each occurrence when a MSN End Users clicks on any Link
within MSN and is linked to a Router Page on the Co-Branded Survey
Site.
"CO-BRANDED SURVEY SITE" means the GFOL and Microsoft branded Web site,
developed, maintained and hosted by GFOL at the virtual domain,
xxx.xxxxxxxxxxxx.xxx containing the Router Pages and
xxx.xxxxxxxxxxxxxxxx.xxx Surveys (as defined below).
"COMMERCIAL RELEASE DATE" means the date on which the Co-Branded Survey
Site (as defined below) is first made available to End Users.
"END USER(S)" mean all end users of a web site.
"KEY CUSTOMER(S)" means customers or partners who provide more than
$1,000,000 in advertising revenue to Microsoft. Key customers may not
include Insight Express, Xxxxxx Interactive, Decision Analysts, NPD,
Knowledge Networks, ComScore, Market Tools, e-shearch, Evaluations,
Survey Sampling, SPSSmr, and the companies owned or controlled by NFO,
Market Facts, UBM, The Kantar Group, Aegis, Interpublic Group and
Xxxxxx/Xxxxxx/Sofres
"LINK" means an embedded icon, object, graphic or text within a web
page that consists of a hypertext pointer to the Co-Branded Survey
Site.
"MSN TEMPLATE" means the MSN Template set forth in Exhibit 1.
"MSN" means (i) the broadband and narrowband U.S., English language
version aggregation of Microsoft and third party web sites (as such
properties may change from
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time to time in Microsoft's sole discretion), which is currently or
hereafter marketed by Microsoft as "The Microsoft Network" and/or
"MSN"; (ii) MSN Vertical Providers (except as provided below), and
(iii) any successor, replacement or new versions of the foregoing web
site branded "MSN" or "The Microsoft Network." "MSN" includes all
versions of MSN that are co-branded with third parties (or their
successors or replacements) for which Microsoft controls the majority
of the web site. "MSN" does not include (i) Microsoft Product web sites
such as xxx.xxxxxxxxx.xxx; (ii) MSN Vertical Providers not controlled
exclusively by Microsoft (e.g., MSNBC); and (iii) international
versions of MSN or non-English language versions of MSN (whether
international or in the U.S.).
"MSN VERTICAL PROVIDER" means a Microsoft joint venture or third-party
content provider web site linked to or from the MSN home page or other
part of MSN (such as a Channel or sub-Channel) during the Term, where
(i) the branding of the default home page as a result of such Link is
either co-branded with MSN or controlled exclusively by such Content
provider, and (ii) the operation of such web site may be controlled
exclusively by such third party content provider. For example, MSNBC,
ESPN, WebMD and Expedia are the respective MSN Vertical Providers of
the "news," "sports," "health" and "travel" Channels on MSN as of the
Effective Date.
"PORTAL" means any general interest or specialty subject web site
available to the public on the internet through direct or password
protected access, either free or subscription based, that aggregates
content and services such as search functionality and links to other
web sites for purposes of advertising or transactional revenue,
including but not limited to, web sites such as AOL, Yahoo, Lycos,
Excite or InfoSpace.
"ROUTER PAGE(S)" means those Co-Branded Survey Site page(s) that host a
questionnaire which qualifies an End User as a potential survey
participant.
"SURVEY(S)" means the market research survey(s) created, marketed and
made available by GFOL on the Co-Branded Survey Site.
2. GFOL'S RIGHTS AND OBLIGATIONS. During the Term:
2.1 GFOL will develop, maintain and host the Co-Branded Survey
Site, including but not limited to, the Router Pages and the
Surveys;
2.2 GFOL will, at Microsoft's request, include within each
questionnaire on each Router Page, one question provided by
Microsoft that is separate and unrelated to the other
qualifying questions within the questionnaire;
2.3 GFOL will display each page of the Co-Branded Survey Site,
including but not limited to the Router Pages and pages
hosting the Surveys, within the MSN Template, in accordance
with the usage guidelines set forth in Exhibit 1;
2.4 GFOL will ensure that the Co-branded Survey Site complies with
the MSN Service Level Agreement ("SLA") set forth in Exhibit
2;
2.5 GFOL will provide a link to the GFOL privacy statement on all
Co-Branded Survey Site pages in a manner that makes the
privacy statements readily accessible to End Users. The GFOL
privacy statements will comply with industry-standard privacy
guidelines and practices including, without limitation,
guidelines and practices recommended by the Better Business
Bureau Online (BBB Online), Online Privacy Alliance and/or
TRUSTe. In cases where GFOL asks Survey respondents recruited
via MSN for permission to disclose their personally
identifiable information to third parties, GFOL [****];
2.6 GFOL will be responsible for all customer support for End
Users of the Co-Branded Survey Site; 2.7 GFOL will bear all
costs related to the Co-Branded Survey Sites,
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2.7 GFOL will bear all costs related to the Co-Branded Survey
Sites, including but not limited to, the cost of developing,
maintaining and hosting the Survey Site and all customer
service costs; and
2.8 GFOL may, at its sole option, elect to participate in a 30-day
trial period of Microsoft's new ad inventory optimization
model. Such 30-day trial period must occur within the first 60
days of this Agreement. During the trial period, Microsoft
will incur the costs of creating the ad inventory and GFOL
will pay Microsoft for all Clicks delivered to the Co-Branded
Survey Site as set forth in Section 9.
2.9 GFOL will post surveys on the Co-Branded Survey Site which
request participants to provide information concerning their
[****].
3. MICROSOFT'S RIGHTS AND OBLIGATIONS. During the Term:
3.1 Microsoft will promote the Co-Branded Survey Site on all MSN
channels via integrated Links on GFOL's reasonable request.
The location of the integrated links on each channel will be
determined by Microsoft based on existing and future
contractual commitments and editorial considerations.
3.2 Microsoft will be responsible for the design, content and
placement of all such Links on MSN, provided however that (a)
Microsoft will appoint at least one producer who will work
with GFOL to execute media plans necessary to attract End
Users of MSN to the Co-Branded Survey Site; (b) placement of
the Links on MSN will be determined based on the demographic
profile of qualifying survey respondents needed to complete
surveys; and (c) the parties will work together to determine
the optimal messaging of the Links for each MSN Channel and in
connection with different types of Surveys.
3.3 Microsoft will work together with GFOL on Surveys requiring
customized Links and or customized Link placement within
certain MSN Channels. In such cases, GFOL will provide
Microsoft with at least one week's prior notice so that
Microsoft can create, schedule and launch such customized
Links and/or Link placement.
3.4 Microsoft will bear all costs related to the development,
design and placement of Links within MSN.
3.5 Microsoft may change, revise or redesign the MSN Template from
time to time at its sole discretion.
4. OWNERSHIP. GFOL will own all design, technology, code, and other
materials provided by GFOL in connection with the Research Surveys and
the Co-Branded Survey Site. Microsoft will own all design, technology,
code, and other materials provided by Microsoft in connection with the
Research Survey and the Co-Branded Survey Site.
5. PASSPORT. Within 60 days of the Commercial Release Date of MSN's
rewards program, GFOL will implement Passport on the Co-Branded Survey
Site so that End Users of the Co-Branded Survey Site can participate in
all Passport enabled incentives, including without limitation, points
or reward incentives. GFOL will adopt MSN's rewards program provided
adoption of the rewards program has a neutral economic impact relative
to GFOL's existing incentive program.
6. CLICKS FORECAST. Every [****] GFOL will provide Microsoft with a
forecast of the maximum number of Clicks that it will require during
the succeeding [****] period ("Click Forecast"). These Clicks Forecasts
will include the number of completed Surveys, estimated number of
Clicks, and general demographic information about the desired Survey
respondents.
7. CLICKS GUARANTEE. During the Term of the Agreement, on a quarterly
basis commencing on the Commercial Release Date, Microsoft will
guarantee GFOL a minimum of the lesser of (i) the number of Clicks
Forecast by GFOL for that quarter; and (ii) the number of Guaranteed
Clicks for that quarter as set forth in Exhibit 3 ("Clicks Guarantee").
If
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Microsoft does not meet its Clicks Guarantee for any quarter, then the
Guaranteed Quarterly Payment due from GFOL to Microsoft for that
quarter shall be reduced accordingly by $[****] per Click shortfall
amount. For example, the Clicks Guarantee for Q1 is [****] but if
Microsoft only delivers [****] Clicks for this quarter, then GFOL's Q1
Guaranteed Quarterly Payment to Microsoft of $[****] will be reduced by
$[****] or ($[****] minus (shortfall of [****] Clicks x $[****])).
Notwithstanding the above, once a year, Microsoft will have the option
of making up any shortfall of Clicks for any one [****] in the
succeeding [****].
8. EXCLUSIVITY. During the Term, Microsoft will be the exclusive Portal
promoting and distributing GFOL's web surveys. GFOL will not enter into
any agreement with any other company for distribution or promotion of
GFOL's web surveys via any other Portal. GFOL's exclusivity obligations
will expire if (i) during the first [****] after the Commercial Release
Date, Microsoft fails to meet its Clicks Guarantee as outlined in
Section 7 for such year period; and (ii) during the previous [****]
period, GFOL provided Microsoft with revenue which was equal to or
greater than [****] of GFOL's Guaranteed Quarterly Payments set forth
in Section 9.3. Additionally, during the Term, GFOL will be Microsoft's
exclusive third party web survey partner for recruiting Survey
respondents via integrated content. Microsoft's exclusivity obligations
shall expire if (i) during the first [****] after the Commercial
Release Date, Microsoft meets its Clicks Guarantee as outlined in
Section 7 for this year period; and (ii) during the previous [****]
period, GFOL failed to provide Microsoft with revenue which was equal
to or greater than [****] of GFOL's Guaranteed Quarterly Payments set
forth in Section 9.3. Notwithstanding the above, Microsoft can conduct
its own web surveys or web surveys on behalf of Key Customers either
directly or through third parties, provided that such web surveys, or
recruitment for such web surveys, are not displayed on MSN pages
containing GFOL's integrated content placements. In addition, Microsoft
may sell banner advertisements to companies for the purpose of
recruiting survey respondents for web surveys other than GFOL's
Surveys, provided that (i) Microsoft does not appoint a producer to
manage the placement and content of such ads, and (ii) the ads will not
be displayed on pages displaying GFOL's integrated content placements
(if such blocking is not technically and economically feasible as of
the commercial availability of the Service, it will be implemented as
soon as technically and economically feasible).
9. PAYMENTS.
9.1 ADVANCE PAYMENT. GFOL will pay to Microsoft a one-time,
non-refundable, advance payment of [****] within forty five
(45) days of the Effective Date, which shall be credited
toward the Guaranteed Quarterly Payments payable to Microsoft
by GFOL under Section 9.3 below.
9.2 CLICKS PAYMENT. During the Term, on a [****] basis, GFOL will
pay Microsoft $[****] for every Click delivered by Microsoft
("Per Click Fee"). The parties will meet [****] after the
Commercial Release Date to determine if the ratio of Clicks to
completed Surveys has increased beyond the estimation in
Exhibit 4. If so, the Per Click Fee for the next [****]
quarters will be increased by that same percentage. The Per
Click Fee will be evaluated every [****] thereafter and will
be adjusted upward or downward for subsequent quarters
depending on the current ratio of Clicks to completed Surveys,
but in no event will the Per Click Fee be less than $[****].
9.3 GUARANTEED QUARTERLY PAYMENTS. During the Term, GFOL will
guarantee Microsoft the following quarterly payments, provided
that Microsoft meets its Clicks Guarantee each quarter as set
forth in Section 7:
a. During the first twelve months after the Commercial
Release Date, GFOL will guarantee Microsoft quarterly
payments as follows: Q1-$[****]; Q2-$[****];
Q3-$[****] and Q4-$[****].
b. If the Term is extended, GFOL will guarantee
Microsoft quarterly payments of $[****] per quarter.
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9.4 CAP ON QUARTERLY PAYMENTS. GFOL's quarterly payments to
Microsoft will be the greater of the revenue guarantee or up
to 110% of the Clicks Forecast multiplied by the then current
Click Payment but will not be more than 110% of the Clicks
Forecast multiplied by the then current Click Payment.
9.5 All payments by GFOL to Microsoft shall be made on a quarterly
basis during the Term. Microsoft will invoice GFOL on a
monthly basis, with all payments due and payable net
Forty-five (45) days from the end of each calendar quarter.
10. REPORTING AUDITS.
10.1 REPORTING. On a monthly basis, GFOL shall report to Microsoft
the following information related to the Co-Branded Survey
Site: Router Page views; qualified Surveys respondents; and
completed Surveys from the co-branded Survey Site. On a
monthly basis, Microsoft shall report to GFOL the number of
Clicks, broken down by MSN Channel.
10.2 AUDITS. Each party will keep all usual and proper records and
books of account and all usual and proper entries and other
documentation relating to all payments owed or paid by such
party, and all revenue, traffic, user and other data and
reports submitted or required to be tracked or submitted by
such party under this Agreement. During the Term and for a
period of one (1) year following the expiration or termination
of this Agreement, each party will have the right to cause an
audit and/or inspection to be made of such records of the
other party in order to verify statements issued by such other
party and its compliance with the terms of this Agreement. Any
such audit will be conducted: (a) by an independent certified
public accountant from a big six accounting firm selected by
the auditing party (other than on a contingent fee basis); (b)
during regular business hours at the facilities of the party
being audited, upon at least thirty (30) days' prior written
notice; and (c) no more often than once every twelve (12)
months. The party requesting the audit will bear the full cost
of the audit except where an audit reveals a payment
underreporting discrepancy of greater than five percent (5%),
in which case the audited party will bear the full cost of the
audit.
11 REPRESENTATIONS AND WARRANTIES; DISCLAIMERS AND LIMITATIONS.
11.1 Each party hereby represents and warrants as follows:
11.1.1 Such party is duly organized and validly existing
under the laws of the state of its incorporation and
has full corporate power and authority to enter into
this Agreement and to carry out the provisions
hereof.
11.1.2 Such party is duly authorized to execute and deliver
this Agreement and to perform its obligations
hereunder.
11.1.3 This Agreement is a legal and valid obligation
binding upon it and enforceable in accordance with
its terms.
11.2 Microsoft further represents and warrants that:
11.2.1 All materials delivered by Microsoft to GFOL for use
on the Co-Branded Survey Site, including without
limitation the MSN Template, do not infringe the
copyrights, trademarks, service marks or any other
personal or proprietary right of any third party; and
11.2.2 Microsoft will not use the GFOL Marks except as
provided in this Agreement.
11.3 GFOL further represents and warrants that:
11.3.1 All materials delivered by GFOL to Microsoft for use
on MSN, including without limitation GFOL Marks, do
not infringe the copyrights,
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trademarks, service marks or any other personal or
proprietary right of any third party;
11.3.2 The Co-Branded Survey Site and all services, content
and actions occurring on the Co-Branded Survey Site,
including without limitation the Surveys and Router
Pages, (other than materials provided by Microsoft),
are, and all times will be, in compliance with all
applicable laws;
11.3.3 The Co-Branded Survey Site and all services, content
and/or material contained therein, including without
limitation the Surveys and Router Pages, (other than
materials provided by Microsoft) are, and at all
times will be, of the same quality and nature;
11.3.4 To the best of GFOL's knowledge, those portions of
any content, service and/or material created by GFOL
do not contain any information, instruction or
formula that when viewed, followed or used in
accordance with their terms by a reasonably prudent
person, and subject to any caveats, disclaimers or
warnings provided, would place an individual, in a
substantial degree of risk of bodily harm; and
11.3.5 GFOL will not use the MSN Template except as provided
in this Agreement.
11.4 Effective no later than the Effective Date and throughout the
term of this Agreement, GFOL will procure and maintain the
following insurance coverage. Such insurance will be in a form
and with insurers reasonably acceptable to Microsoft, and will
comply with the following minimum requirements:
11.4.1 Commercial General Liability Insurance of the
Occurrence Form with policy limits of not less than
Five Million Dollars ($5,000,000) combined single
limit each occurrence for Bodily Injury and Property
Damage combined, and Five Million Dollars
($5,000,000) Personal and Advertising Injury Limit;
and
11.4.2 Errors & Omissions Liability / Professional Liability
Insurance with policy limits of not less than Five
Million Dollars ($5,000,000) each claim with a
deductible of not more than $25,000. Such insurance
will include coverage for infringement of proprietary
rights of any third party, including without
limitation copyright and trademark infringement as
related to GFOL's performance under this Agreement.
Throughout the term of the Agreement, the Errors &
Omissions Liability / Professional Liability
Insurance retroactive coverage date will be no later
than the Effective Date of this Agreement. Upon
expiration or termination of this Agreement, GFOL
will maintain an extended reporting period providing
that the claims first made and reported to the
insurance company within one (1) year after the end
of this Agreement will be deemed to have been made
during the policy period.
11.4.3 Promptly upon execution of the Agreement, GFOL will
provide to Microsoft proof evidencing full compliance
with the insurance requirements set forth herein.
GFOL will notify Microsoft in writing at least thirty
(30) days in advance if GFOL's insurance coverage is
to be canceled or materially altered so as to not
comply with the requirements of this section.
11.5 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11,
NEITHER PARTY MAKES ANY REPRESENTATION, WARRANTY OR CONDITION,
RELATING TO THEIR RESPECTIVE SITES, ANY MATERIALS, DATA OR
CONTENT IT PROVIDES IN CONNECTION HEREWITH, AND ITS PROVISION
OF ALL SERVICES HEREUNDER, AND HEREBY DISCLAIMS ANY AND ALL
SUCH REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF NON-INFRINGEMENT, AND THE
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IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND WHETHER OR NOT ARISING FROM A COURSE
OF DEALING.
11.6 LIMITATIONS ON LIABILITY. EXCEPT FOR DAMAGES ARISING OUT OF OR
AS A RESULT OF (A) A BREACH OF THE NDA REFERENCED IN SECTION
13 OR (B) A PARTY'S INDEMNIFICATION OBLIGATION UNDER SECTION
12 SOLELY TO THE EXTENT ARISING FROM A THIRD PARTY CLAIM,
NEITHER PARTY WILL BE LIABLE HEREUNDER FOR ANY INDIRECT,
CONSEQUENTIAL OR INCIDENTIAL DAMAGES (INCLUDING DAMAGES FOR
LOST PROFITS, LOST OPPORTUNITIES) OR ANY PUNITIVE OR EXEMPLARY
DAMAGES, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE
POSSIBILITY OF SUCH DAMAGES (PROVIDED THAT THIS LIMITATION
WILL NOT LIMIT EITHER PARTY'S OBLIGATION TO INDEMNIFY THE
OTHER PARTY AS SET FORTH IN SECTION 12).
12. INDEMNIFICATION.
12.1 OBLIGATION TO INDEMNIFY. Provided that notice has been given
as set forth in Section 15, the parties agree to indemnify,
defend, and hold each other and their successors, officers,
directors and employees harmless from any and all actions,
causes of action, claims, demands, costs, liabilities,
expenses (including reasonable attorneys' fees) and damages to
the extent arising out of or in connection with any claim by a
third party which, if true, would be (i) a breach of this
Agreement, including without limitation, a breach of any
warranty set forth in this Agreement; or (ii) an infringement
of the copyright, patent, trademark, trade name, or other
intellectual property right of any person related to materials
of or provided by the indemnifying party. Provided that notice
has been given as set forth in Section 15, GFOL agrees to
indemnify, defend, and hold Microsoft and its successors,
officers, directors and employees harmless from any and all
actions, causes of action, claims, demands, costs,
liabilities, expenses (including reasonable attorneys' fees)
and damages arising out of or in connection with any claim by
an End User or Employer relating to the Co-Branded Survey
Site; provided that GFOL will have no obligation to indemnify
Microsoft from any and all actions, causes of action, claims,
demands, costs, liabilities, expenses (including reasonable
attorneys' fees) and damages which are based upon the actions
or omissions of Microsoft or the failure by Microsoft to
comply with its obligations under this Agreement.
12.2 INDEMNIFICATION PROCESS. If any action will be brought against
either party (the "Claimant") in respect to which indemnity
may be sought from the other party (the "Indemnifying Party")
pursuant to the provisions of this Section 12, the Claimant
will promptly notify the Indemnifying Party in writing,
specifying the nature of the action and the total monetary
amount sought or other such relief as is sought therein. The
Claimant will cooperate with the Indemnifying Party at the
Indemnifying Party's expense in all reasonable respects in
connection with the defense of any such action. The
Indemnifying Party may, upon written notice to Claimant,
undertake to conduct all proceedings or negotiations in
connection therewith, assume the defense thereof, and if it so
undertakes, it will also undertake all other required steps or
proceedings to settle or defend any such action, including the
employment of counsel, and payment of all expenses. Claimant
will have the right to employ separate counsel and participate
in the defense; provided that the Indemnifying Party will
control the defense. In the event that the parties materially
disagree on any aspect of the defense, then the Claimant may
elect to pursue its own defense and the Indemnifying Party's
indemnification obligation will cease. The Indemnifying Party
will reimburse Claimant upon demand for any reasonable
payments made or loss suffered by it
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at any time after the date of tender, based upon the judgment
of any court of competent jurisdiction or pursuant to a bona
fide compromise or settlement, approved in writing by the
Indemnifying Party, of claims, demands, or actions, in respect
to any damages to which the foregoing relates.
13. CONFIDENTIALITY AND MEDIA COMMUNICATIONS.
13.1 Microsoft and GFOL agree that the terms of the Microsoft
Non-Disclosure Agreement ("NDA") executed by the parties and
dated July 2, 2001, will be deemed incorporated herein, and
further, that all terms and conditions of this Agreement will
be deemed Confidential Information as defined in such NDA.
13.2 Neither party will issue any press release or make any public
announcement(s) relating in any way whatsoever to this
Agreement or the relationship established by this Agreement
without the express prior written consent of the other party,
which consent will not be unreasonably withheld.
13.3 IF GFOL plans to file the Agreement with the Securities and
Exchange Commission or any other securities exchange or
market, regulatory authority or similar body, then GFOL must
provide Microsoft no less than three (3) business days before
the expected date of such filing, a copy of the Agreement and
any amendments to the Agreement marked to show the items on
which GFOL plans to seek confidential treatment.
14. TERM AND TERMINATION.
14.1 TERM. This Agreement will begin on the Effective Date and will
continue for a period of one (4) years from the Commercial
Release Date, unless earlier terminated as set forth in this
Section 14 (the "Term"). At GFOL's option, the Term may be
terminated for convenience or otherwise by providing Microsoft
notice of its intention to terminate within ninety (90) days
in advance of the first anniversary of the Commercial Release
Date. This Agreement may be terminated for convenience or
otherwise by either party by providing the other with notice
of its intention to terminate within ninety (90) days in
advance of the second and third anniversary of the Commercial
Release Date
14.2 TERMINATION. This Agreement may be terminated by either party
prior to its natural expiration if any of the following events
of default occurs:
14.2.1 The other party materially breaches this Agreement or
the SLA, or any provision hereof or thereof,
including failure to pay any amount(s) due hereunder;
or
14.2.2 The other party becomes insolvent or admits in
writing its inability to pay its debts as they
mature, or makes an assignment for the benefit of
creditors; or
14.2.3 A petition under any bankruptcy act, receivership
statute, or the like, as they now exist, or as they
may be amended, is filed by the other party; or if
such a petition is filed by any third party, or an
application for a receiver of the other party is made
by anyone and such petition or application is not
resolved favorably to such party within sixty (60)
days.
14.2.4 Microsoft fails to meet its Clicks Guarantee for any
quarter and does not cure such shortfall during the
sixty (60) day notice period required per Section
14.5.
14.3 In addition, Microsoft may terminate this Agreement prior to
its natural expiration if GFOL fails to meet its Quarterly
Guarantee for any quarter and does not cure such shortfall
during the sixty (60) day notice period required per Section
14.5.
14.4 In addition, GFOL may terminate this Agreement prior to its
natural expiration if any of the following occur:
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14.4.1 During the first six (6) months of the Term, GFOL
shall have the one-time option to terminate this
Agreement if the percentage of Clicks to Router Page
Visits and Router Page Visits to completed Surveys is
significantly below the level listed in Exhibit 4. A
Router Page Visit is defined as each instance when an
End User (i) clicks through to a Router Page; (ii)
completes the screening questions on the Router Page;
and (iii) clicks the "Take Me To A Survey" button on
the Router Page.
14.4.2 Pre-Sales Period. In addition, through January 30,
2002 GFOL shall use its best commercial efforts to
pre-sell the Market Research Survey Service. If,
despite these efforts, GFOL is unable to successfully
pre-sell the Market Research Survey Service, GFOL may
give notice of its intent to cancel this Agreement.
The pre-sales period will be deemed successful if on
or before its conclusion, GFOL has obtained binding
contracts for the sale of at least $[****] worth of
services to be rendered through the Co-Branded Survey
Site in the first year of its commercial availability
14.5 Termination under Section 14.2.1, 14.2.4 and 14.3 above will
be effective sixty (60) days after written notice of
termination given by the non-defaulting party to the
defaulting party, if the defaulting party's defaults have not
been cured within such sixty (60) day period. Termination
under Sections 14.2.2, 14.2.3 and 14.4.2 will be effective
upon notice. Termination under Section 14.4.1 above will be
effective thirty (30) days from delivery of the written notice
of termination. The rights and remedies provided in Section 14
will not be exclusive and are in addition to any other rights
and remedies provided by law or this Agreement. In the event a
non-defaulting party in its discretion elects not to terminate
this Agreement under Section 14.1, such election will not be a
waiver of any and all claims of that party for such
default(s). Further, the non-defaulting party may elect to
leave this Agreement in full force and effect and to institute
legal action against the defaulting party for specific
performance and/or damages suffered by such party as a result
of the default(s).
14.4 RIGHTS AND OBLIGATIONS UPON TERMINATION OR EXPIRATION.
Promptly upon termination or expiration of this Agreement GFOL
will immediately cease and desist from all use of the MSN
Template on the Co-Branded Survey Site.
14.5 SURVIVAL. The following provisions will survive termination or
expiration of this Agreement: Sections 9 through 16.
15. NOTICES.
All notices and requests in connection with this Agreement will be
deemed given as of the day they are received via messenger or delivery
service, or in the United States mail, postage prepaid, certified or
registered, return receipt requested, or via facsimile, and addressed
as follows:
If to GFOL If to Microsoft
Xxxxxxxx Xxxxxx, General Counsel [****]
00 Xxxxx Xxxx
Xxxxxx, XX 00000
Tel. 000-000-0000
Fax. 000-000-0000
A party may change its address by giving the other party written notice
in the manner set forth above.
16. GENERAL.
9
16.1 GOVERNING LAW/JURISDICTION. This Agreement shall be construed
and controlled by the laws of the State of Washington, and
GFOL further consents to jurisdiction by the state or federal
courts sitting in the State of Washington. Process may be
served on either party by U.S. Mail, postage prepaid,
certified or registered, return receipt requested, or by such
other method as is authorized by law.
16.2 ATTORNEYS' FEES. If either party employs attorneys to enforce
any rights arising out of or relating to this Agreement, the
prevailing party will be entitled to recover its reasonable
attorneys' fees, costs and other expenses.
16.3 ENTIRE AGREEMENT/WAIVER. This Agreement constitutes the entire
agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous
agreements or communications. This Agreement will not be
modified except by a written agreement dated subsequent to the
date of this Agreement and signed on behalf of GFOL and
Microsoft's by their respective duly authorized
representatives. No waiver of any breach of any provision of
this Agreement will constitute a waiver of any prior,
concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver will be effective unless made
in writing and signed by an authorized representative of the
waiving party.
16.4 ASSIGNMENT. The agreement between the parties will be binding
upon and inures to the benefit of each party's respective
successors and lawful permitted assigns, however neither party
may assign the agreement, or any rights or obligations under
it, whether by contract or by operation of law, except with
the express written consent of the other party, which consent
will not be unreasonably withheld.
16.5 SEVERABILITY. In the event that any provision of this
Agreement conflicts with governing law or if any provision is
held to be null, void or otherwise ineffective or invalid by a
court of competent jurisdiction, (i) such provision will be
deemed to be restated to reflect as nearly as possible the
original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions,
covenants and restrictions of this Agreement will remain in
full force and effect.
16.6 NO JOINT VENTURE. Neither this Agreement, nor any terms and
conditions contained herein, will be construed as creating a
partnership, joint venture, agency relationship or as granting
a franchise.
16.7 SECTION HEADINGS. The section headings used in this Agreement
are intended for convenience only and will not be deemed to
affect in any manner the meaning or intent of this Agreement
or any provision hereof.
10
IN WITNESS WHEREOF, the parties have executed and delivered this Test Period
Agreement as of the date written next to their name.
MICROSOFT CORPORATION GREENFIELD ONLINE, INC.
("MICROSOFT") ("GFOL")
By /s/ Xxxxx X. Xxx Xxxxxxx By /s/ Xxxx Xxxxxx
----------------------------- -------------------------
Name Xxxxx X. Xxx Xxxxxxx Name Xxxx Xxxxxx
Title General Manager, new business development Title CEO
Date 11/28/01 Date 11/28/01
11
EXHIBIT 1
MSN TEMPLATE
EXHIBIT 2
MSN SERVICE LEVEL AGREEMENT
EXECUTIVE OVERVIEW
This agreement details the service availability of the Co-Branded Pages.
SERVICE AVAILABILITY
The parties' objective for the Agreement is to establish a record of
service availability, averaged over an annual basis, of 99.5%, or less than 0.5%
failure rate subject to the exceptions below. The service availability will be
measured over a thirty (30) day period (the "Service Availability"). The purpose
of this metric is to establish a baseline objective that meets the parties'
expectations.
In the event of any material deviation from the Service Availability
objective, as measured over a thirty (30) day period, GFOL shall take the steps
described below under "Technical Support and Problem Escalation" to restore the
level of service for the Co-Branded Pages to a fully operational condition.
In the event that GFOL does not meet the foregoing Service Availability in
any thirty (30) day period, GFOL shall be required, for an adjacent period of
sixty (60) days, to provide a dedicated person to resolve GFOL's failure to meet
the Service Availability. If, after such sixty (60) day period has expired, GFOL
again fails to meet the Service Availability requirement in any consecutive
thirty (30) day period as set forth above, then for each consecutive thirty (30)
day period GFOL fails to meet such requirement (each an "Additional Failure"),
Microsoft may invoice GFOL for Twenty Five Thousand Dollars ($25,000.00)
("Service Failure Payment"). Such amount shall be due 30 days from the date GFOL
receives such invoice. In the event there are four or more Additional Failures
in any calendar year during the Term, either party may elect to terminate the
Distribution and License Agreement to which this Attachment is attached.
Notwithstanding the foregoing, in the event that, despite such Additional
Failures, the average annual measure of GFOL's Service Availability meets or
exceeds the Service Availability requirements above, Microsoft shall refund any
Service Failure Payments paid by GFOL for the applicable year. The remedies set
forth herein for failure to perform are in addition to any other remedies that
Microsoft may have under the Agreement.
MEASUREMENT
Microsoft will monitor the availability of the services using appropriate
measurement tools. GFOL Services will be monitored at border routers for the MSN
data centers.
Microsoft will use third party industry standard systems, such as
Sitescope,
developed by Freshwater Software, to measure and monitor quality of service.
Microsoft uses Sitescope to measure availability of its own sites, including the
MSN network. Microsoft uses measurements taken at border maters of the MSN data
center for calculating service levels. Availability data from the point of view
of the user is also collected, but this is for informational purposes only and
not to be used for calculation of service availability.
The GFOL Services listed below will be sampled at two (2) minute intervals
or more often as Microsoft determines in its sole discretion:
xxxx://xxx.xxxxxxxxxxxxxxxx.xxx
EXPECTATIONS
Unlike traditional service organizations that provide service level
agreements, Internet services like the GFOL Website are routinely impacted by
events that GFOL may have no control over and which events may negatively impact
the Service Availability. Accordingly, the occurrence of any of the following
events shall constitute an exception to GFOL's obligation to meet the Service
Availability objective specified above:
1. An outage of services that is due to the failure or non-performance
of any equipment, connections, or services that are not under the
direct control or supervision of GFOL; or
2. An outage of services caused by a third party, including MSN, not
under the direct control or supervision of GFOL, including but not
limited to, GFOL or its employees, contractors or subcontractors; or
3. An outage caused by scheduled routine or preventive maintenance
unless such maintenance is performed outside of the specified time
that has been mutually agreed to by the parties (GFOL shall perform
such routine or preventative maintenance during times that will
minimize impact to end-users, and the parties agree that such time
is initially designated as Tuesdays from 3 to 6 a.m. Eastern Time),
or
4. An outage of Services that is caused by an event that is beyond the
reasonable control of GFOL (e.g., acts of God, acts of any
government in its sovereign or contractual capacity; fires; floods;
snowstorms; hurricanes, tornadoes, earthquakes; epidemics;
quarantine restrictions; wars, riots, rebellions, insurrections or
civil unrest; strikes or other work stoppages; hacker attacks such
as "Denial of Service").
OPERATING STANDARDS
GFOL Operations will maintain a high degree of operational support. The
services that comprise operational support include monitoring the software that
provides the Co-Branded Pages managing the computers that run that software, and
managing the key infrastructure pieces such as the networking architecture and
interact connectivity
that are required to allow customers to reach and utilize the Co-Branded Pages.
TECHNICAL SUPPORT AND PROBLEM ESCALATION
This section describes GFOL's process for handling technical support
requests. The process is comprised of three key elements:
- Priority level definitions and assignment
- Escalation process
- Response times
The technical support request processing details listed below provide the
criteria that should be used to define the four priority levels for a technical
support request made by Microsoft to GFOL.
GFOL shall cooperate with Microsoft in order to facilitate GFOL's
provision of the Channel on a continuous basis. For example (and by way of
illustration and not limitation), Microsoft shall: (1) promptly notify GFOL (as
described below) when it believes that a problem requiring technical support has
arisen; (2) reasonably cooperate with GFOL with respect to troubleshooting
and/or resolution of the problem; and (3) furnish GFOL with such relevant
information as Match may reasonably require in order to provide technical
support.
PRIORITY LEVEL DEFINITIONS AND ASSIGNMENTS
With Microsoft's input, GFOL will assign each technical support request a
priority level based on the criteria listed below.
PRIORITY CRITERIA AND EXAMPLES
--------------------------------------------------------------------------------
IMMEDIATE CRITERIA:
- One of the following web sites is unavailable:
XXXX://XXX.XXXXXXXXXXXX.XXX
XXXX://XXX.XXXXXXXXXXXXXXXX.XXX
ADDRESS FOR AWARD REDEMPTION PAGE
(DOES NOT EXIST YET)
- Service malfunction is causing serious
disruption to the normal operation
capabilities as seen by Microsoft MSN users
and/or Microsoft's Operations Team.
EXAMPLES:
- Page is unavailable
- Significant functionality on web sites is
unavailable due to broken links or otherwise
malformed web content.
--------------------------------------------------------------------------------
HIGH CRITERIA:
- Obvious and significant flaw in quality of at
GFOL Property or Service apparent to fifty
percent (50%) or more of Microsoft/MSN users.
- Obvious and significant flaw in quality of
Property or Service that produces errors or
degrades performance of Microsoft Ads Serving
Engine
EXAMPLES:
- Content feeds are frequently unavailable
- Content feeds are continually errant
- Partner URL is incorrectly coded for serving
Microsoft-served Ads and results in scripting
errors that degrade the
performance/availability of Ads Servers.
- Certain security-related issues
--------------------------------------------------------------------------------
NORMAL CRITERIA:
- Problem with any Property or Service that is
inconvenient but can be worked around or
affects less than twenty-five percent (25%) of
Microsoft/MSN users.
EXAMPLES:
- A particular piece of content is unavailable.
--------------------------------------------------------------------------------
PROJECT CRITERIA:
- System enhancement or improvement requests
that can be planned into a normal release
cycle. These requests are presented to program
management for assessment and prioritization
into the release schedule.
EXAMPLES:
- Request for a new information service that is
not part of a current service.
- Request for a new report type or report
format.
If GFOL discovers problems of immediate or high priority; GFOL will notify
Microsoft Service Operations Center (SOC) as soon as possible using commercially
reasonable efforts.
GFOL may, upon consultation with MSN, downgrade the priority level of a
problem if GFOL determines, in good faith, that the problem does not meet the
priority level first assigned to it by Microsoft.
ESCALATION PROCEDURES
In the event that Microsoft discovers a problem, the following process
should be used for problem resolution call escalation.
Microsoft shall provide GFOL with a list of authorized personnel (the
"Authorized Microsoft Representatives") who are authorized to contact GFOL,
which person(s) shall have the technical capability and authority to make
appropriate decisions on behalf of MSN. Microsoft shall be responsible for
providing GFOL with updated information (as necessary) regarding such authorized
personnel. GFOL shall have no obligation to take any action based upon a report
from any person purporting to represent Microsoft unless such person is an
Authorized Microsoft Representative and can provide sufficient information (i.e.
password) to verify his or her identity.
In order to minimize confusion, maintain security, and streamline the
communications between Microsoft and GFOL, when reporting a problem or when
following up on a problem, the Microsoft Authorized Representative shall provide
GFOL contact with the following information:
1. The GFOL name and particular service(s) that is (are) experiencing a
problem;
2. The name of the Authorized Microsoft Representative who is making
the report;
3. The prearranged mutually agreed upon password (initially
"__________") for verification;
4. An E-mail notification address or alias to facilitate communication;
5. All relevant detail information regarding the problem; and
6. Other pertinent contact information, which shall include but not be
limited to, a telephone number and or a pager number for the
Authorized Microsoft Representative.
As described in greater detail below under "Response Time Targets," GFOL
representative will: (1) provide the Authorized Microsoft Representative with a
problem tracking number; (2) work through the GFOL-established escalation
process to facilitate timely resolution of the problem; and (3) provide the
Authorized Microsoft Representative with updated information specific to the
problem.
It should be understood that the Authorized Microsoft Representative does
not have the authority to instruct GFOL to perform any direct action concerning
any equipment, software or network that constitute the GFOL Service. Similarly,
it should be understood that no GFOL representative has the authority to
instruct Microsoft to perform any direct action concerning any equipment,
software or network that constitutes the MSN service.
RESPONSE TIME TARGETS
----------------------------------------------------------------------------------------------
PRIORITY INITIAL RESPONSE UPDATE INTERVAL RESOLUTION GOAL
----------------------------------------------------------------------------------------------
Immediate 60 minutes or less Every 2 hours 4 hours
----------------------------------------------------------------------------------------------
High 60 minutes or less Every 4 hours 8 hours
----------------------------------------------------------------------------------------------
Normal 1 business day or less Weekly 1 week or less
----------------------------------------------------------------------------------------------
Project 1 business day or less Weekly Next product release
----------------------------------------------------------------------------------------------
GFOL will use commercially reasonable efforts to meet the above Response
Time Targets.
If a Resolution Goal is not met, an advisory will be provided to
Microsoft's contact point. In, "Immediate" priority situations where Resolution
Goals are not met, GFOL will provide contact information to extend the
escalation path up through executive management.
INITIAL RESPONSE
Initial response is defined as the first contact provided to Microsoft
after the Authorized Microsoft Representative has submitted a service request
through the above-mentioned escalation procedure. This response may be in the
form of an email message, phone call, or personal acknowledgement and will
normally contain the service request number for tracking purposes.
UPDATE INTERVAL
The update interval is defined as any communication between Match support
or product team and Microsoft where the status and plan of action for the
service request is communicated. The purpose of these updates is to keep
Microsoft informed of the progress being made to resolve the problem reported
through the service request, to gather additional details for support or
troubleshooting purposes, or to communicate a resolution of the problem, to
Microsoft.
CONTACT NAMES AND PHONE NUMBERS
In order to keep communication lines open between both companies, the
following information is required. Microsoft in turn will provide GFOL with our
escalation contact information.
-----------------------------------------------------------------------------------------------
TIER SUPPORT NAME EMAIL PHONE NUMBERS
-----------------------------------------------------------------------------------------------
Tier 1 Support Center xxxxxxxxxx@xxxxxxxxxx.xxx Work: (000) 000-0000
Cell:
Pager:
Home:
-----------------------------------------------------------------------------------------------
Tier 2 Xxxx Xxxxxxxx xxxxxxxxx@xxxxxxxxxx.xxx Work: (000) 000-0000
Cell: (000) 000-0000
Pager:
Home:
-----------------------------------------------------------------------------------------------
Tier 3 Xxxx Xxxxxxxx xxxxxxxxx@xxxxxxxxxx.xxx Work: (000) 000-0000
Cell: (000) 000-0000
Pager:
Home: (000) 000-0000
-----------------------------------------------------------------------------------------------
EXHIBIT 3
GUARANTEED CLICKS
ALL FUTURE
Q1 Q2 Q3 Q4 QUARTERS
------- ------- -------------- -------------- --------------
GFOL GUARANTEED
QUARTERLY PAYMENT $[****] $[****] $[****] $[****] $[****]
PER CLICK FEE $[****] $[****] XXX XXX TBD
MSN CLICKS
GUARANTEE [****] [****] TBD (GFOL TBD(GFOL TBD(GFOL
GUARANTEED GUARANTEED GUARANTEED
QUARTERLY QUARTERLY QUARTERLY
PAYMENTS / PER PAYMENTS / PER PAYMENTS / PER
CLICK FEE), BUT CLICK FEE), BUT CLICK FEE), BUT
NO MORE THAN NO MORE THAN NO MORE THAN
[****] [****] [****]
EXHIBIT 4
Ratio of Clicks to Router Pages Visits and Router Page Visit to completed
Surveys
Ratio of Clicks to Router Page Visit equals [****] Clicks for each Router Page
Visit
Ratio of Clicks to completed Surveys equals [****] Clicks for each completed
Survey
Microsoft Confidential 911 Gifts
AMENDMENT NO. 1
This AMENDMENT NUMBER 1 ("Amendment No. 1") to the Commercial Agreement (the
"Agreement") is made by and between GREENFIELD ONLINE, INC. ("GFOL") and
MICROSOFT CORPORATION ("Microsoft").
Microsoft and GFOL hereby agree to modify the Agreement as follows:
1. Section 2.10 is hereby added as follows:
2.10 With regard to all contests and/or sweepstakes held by GFOL on
the Co-Branded Survey Site (collectively the "Sweepstakes"),
GFOL will:
a. Coordinate and administer submission of all
Sweepstakes;;
b. Draft the Sweepstakes rules ("Official Rules") and
submit the Official Rules to Microsoft for review and
approval at least thirty (30) days prior to launch of
the Sweepstakes;
c. Assure state registration of the Sweepstakes, if
required;
d. Evaluate and technically validate entries to the
Sweepstakes;
e. Select Sweepstakes winner and verify Sweepstakes
winners and their eligibility to win prizes;
f. Notify Sweepstakes winners and obtain affidavits of
eligibility and publicity releases in a form approved
by Microsoft;
g. Insure accuracy of all representations made in
connection with the Sweepstakes;
h. Assure compliance with the Microsoft-approved rules
and all applicable federal, state or local laws and
regulations;
i. Report the names and addresses of all Sweepstakes
winners and dates the prizes awarded by Microsoft
were delivered to all applicable government
authorities as required by law, including, without
limitation, the federal Internal Revenue Service and
all applicable state and local taxing authorities;
and
j. File all tax forms (e.g., IRS Form 1099) for
Sweepstakes prize winners as required by law.
2 Section 11.3 is hereby modified as follows (amendments in italics):
11.3 GFOL further represents and warrants that:
11.3.1 All materials delivered by GFOL to Microsoft for use
on MSN, including without limitation GFOL Marks, do
not infringe the copyrights, trademarks, service
marks or any other personal or proprietary right of
any third party;
11.3.2 The Co-Branded Survey Site and all services, content
and actions occurring on the Co-Branded Survey Site,
including without limitation the Surveys, Router
Pages and Sweepstakes (other than materials provided
by Microsoft), are, and all times will be, in
compliance with all applicable laws;
11.3.3 The Co-Branded Survey Site and all services, content
and/or material contained therein, including without
limitation the Surveys, Router Pages and Sweepstakes
(other than materials provided by Microsoft) are, and
at all times will be, of the same quality and nature;
11.3.4 All Sweepstakes will be conducted in compliance with
the Microsoft-approved Official Rules and all
applicable federal, state or local laws;
11.3.5 To the best of GFOL's knowledge, those portions of
any content, service and/or material created by GFOL
do not contain any information, instruction or
formula that when viewed, followed or used in
accordance
Microsoft Confidential 911 Gifts
with their terms by a reasonably prudent person, and
subject to any caveats, disclaimers or warnings
provided, would place an individual, in a substantial
degree of risk of bodily harm; and
11.3.6 GFOL will not use the MSN Template except as provided
in this Agreement.
Except as specifically modified herein or in prior amendments, all other terms
and conditions of the Agreement shall remain in full force and effect.
WHEREBY the parties enter into this Amendment as of the later of the two
signatures dates below ("the Effective Date of this Amendment Number 1").
MICROSOFT CORPORATION GREENFIELD ONLINE, INC.
By (Signature) /s/ Xxxxx Britain /s/ Xxxx Xxxxxx
---------------------- -----------------------------------
Name: Xxxxx Britain Xxxx Xxxxxx
(Print Clearly)
Title: Bus. Dev. Mgr. CEO
Date: 4/2/02 03/26/02
AMENDMENT NO. 2
TO THE COMMERCIAL AGREEMENT
This AMENDMENT NUMBER NO. 2 ("Amendment No. 2") to the Commercial Agreement (the
"Agreement") is made by and between GREENFIELD ONLINE, INC. ("GFOL") and
MICROSOFT CORPORATION ("Microsoft").
WHEREAS, the parties entered into a Commercial Agreement on November 28, 2001,
regarding an online Market Research Survey Service to be developed marketed and
serviced by GFOL and distributed by Microsoft over the Microsoft Network.
WHEREAS, the parties desire to enter into this Addendum to provide for the
development, marketing and sale of an "Entertainment Panel" comprised of
individuals recruited on the Microsoft Network. Terms not otherwise defined
herein will have the meaning ascribed to them in the Commercial Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
1. The following definitions will be added to Section 1:
"ACTIVE ENTERTAINMENT PANEL MEMBER" means a Valid Entertainment Panel
Member who has taken at least one Entertainment Related Survey within
the past thirty (30) day period.
"ENTERTAINMENT PANEL" means the collection of individuals who have
signed-up and opted-in to receive invitations from GFOL to take
entertainment-related online surveys.
"ENTERTAINMENT PANEL GROSS REVENUE" means gross revenue earned by GFOL
for Entertainment Panel Members completing Entertainment Related
Surveys.
"ENTERTAINMENT PANEL MEMBER" means an individual who has signed-up to
become a member of the Entertainment Panel.
"ENTERTAINMENT PANEL SIGN-UP PAGE" means the GFOL web page where
individuals may sign-up to become a member of the Entertainment Panel.
"ENTERTAINMENT RELATED SURVEYS" mean surveys related specifically to
the following:
i. trailers, storyboards, concepts, sound tracks, advertising and
promotional materials related to motion pictures;
ii. pilots, trailers, storyboards, concepts, advertising and
promotional materials for television programs;
1
iii. television commercials, storyboards and concepts therefore;
iv. music videos, storyboards and concepts therefore;
v. the recording industry, including musical recordings, artwork,
advertising and promotional materials;
vi. video games, including graphics, story lines, concepts,
artwork, advertising and promotional materials; and,
"INITIAL RECRUITMENT PERIOD" means the period of time commencing when
Microsoft first published links to the Entertainment Panel Sign-up Page
on MSN and ending when the number of Valid Entertainment Panel Members
reaches [****].
"QUALIFYING SURVEY" means a survey taken by an Entertainment Panel Member which
GFOL receives payment for from a third party.
"QUALIFYING SURVEY FEE" MEANS the $[****] fee paid by GFOL to Microsoft
in connection with each Qualifying Survey taken by an Entertainment
Panel Member.
"RECRUITING FEE" means the $[****] fee paid by GFOL to Microsoft for
each Entertainment Panel Member recruited by Microsoft via links
displayed within MSN.
"VALID ENTERTAINMENT PANEL MEMBER" means an Entertainment Panel Member
that (i) has completed GFOL's double opt-in process for joining the
Entertainment Panel; (ii) has not removed themselves from the
Entertainment Panel; and (iii) whose email address on record with GFOL
is valid.
2. Section 2.11 is hereby added as follows:
2.11 The Entertainment Panel. GFOL will:
a. Develop, host and maintain the Entertainment Panel
Sign-up Page on its servers and be solely responsible
for all customer support. The form and content of the
Entertainment Panel Sign-up Page will be materially
similar to the mock-up attached as Exhibit 5;
b. Be solely responsible for (i) all aspects involved in
signing up Entertainment Panel Members via the
Entertainment Panel Sign-up Page and (ii) any
incentive or other payment to Entertainment Panel
Members;
c. As soon as reasonably practical after the redesign of
GFOL's database on the .Net platform (anticipated to
be in August, 2002), adopt and utilize Microsoft
Passport for all
2
Entertainment Panel Member authentication and sign-in
functionalities and will include Microsoft Passport
in the initial Entertainment Panel screening process;
d. Offer all media on the Entertainment Panel Sign-up
Page in Microsoft's WindowsMedia technology;
e. May only use the Entertainment Panel for the sole
purpose of requesting Entertainment Panel Members to
fill out Entertainment Related Surveys;
f. Segregate the Entertainment Panel from its other
online panels and shall not integrate or utilize the
Entertainment Panel Members for its other online
panels (provided that this restriction will not apply
to those Entertainment Panel Members who are or
become a member of GFOL's other panels, it being
agreed that GFOL will not specifically target
Entertainment Panel Members to sign up for GFOL's
other panels); and
g. During the Initial Recruitment Period, provide
Microsoft with weekly reports concerning (i) the
number of new Entertainment Panel Members joining the
Entertainment Panel during the reporting period; (ii)
the cumulative number of Entertainment Panel Members,
(iii) the total and average number of Valid
Entertainment Panel Members; (iv) the total number of
Active Entertainment Panel Members; and (v) the
number of Entertainment Related Qualifying Surveys
completed by Entertainment Panel Members during the
reporting period. After the Initial Recruitment
Period, GFOL will provide Microsoft with monthly
reports, as detailed above, due within ten (10) days
after the end of each calendar month.
h. Obtain Microsoft's prior approval with respect to any
newsletters GOFL sends to Entertainment Panel
Members.
3. Section 3.6 is hereby added as follows:
3.6 The Entertainment Panel. Microsoft will:
a. Promote the Entertainment Panel via links within MSN.
The creation, content, size and placement of all
links shall be within Microsoft's sole discretion,
provided however that the links shall link MSN end
users directly to the Entertainment Panel Sign-up
Page, The parties agree that the goal of displaying
these links within MSN is to attract [****]
individuals appropriate for membership in the
Entertainment Panel. Microsoft shall be responsible
for all costs associated with displaying these links
within MSN; and
b. Work with GFOL to modify Microsoft's placement of
links within MSN to the Entertainment Panel Sign-up
Page if the
3
number of Valid Entertainment Panel Members falls
below an average of [****] in any given month after
the Initial Recruitment Period, or the number of
Active Entertainment Panel Members falls below [****]
in any given month after the Initial Recruitment
Period.
c. At it's option, host an intermediate page (i.e. end
users of MSN who click on links to the Entertainment
Panel within MSN will first link to a page within
MSN; all subsequent links on this intermediate page
will link to the Entertainment Panel Sign-up Page).
4. Section 9.6 is hereby added as follows:
9.6 ENTERTAINMENT PANEL PAYMENTS. GFOL shall pay Microsoft a
$[****] Recruiting Fee per new Entertainment Panel Member
recruited via links displayed within MSN. Additionally, GFOL
will pay Microsoft a $[****] Qualifying Survey Fee for each
Entertainment Related, Qualifying Survey completed by an
Entertainment Panel Member. Any Entertainment Panel payments
made by GFOL to Microsoft under this Section 9.6 will not be
credited toward the Guaranteed Minimum Payments detailed in
Section 9.3 or the Cap on Quarterly Payments outlined in
Section 9.4.1 of the Agreement. At the end of each three-month
period during the Term of Addendum No. 2, GFOL will receive a
credit against all Qualifying Survey Fees due to Microsoft
equal to the amount of Recruiting Fees due to Microsoft for
the same three-month period. If the Recruiting Fees due to
Microsoft in any three month period are in excess of the
Qualifying Survey Fees due to Microsoft for a three month
period, that excess amount will be carried forward into
succeeding three month periods as a credit against Qualifying
Survey Fees.
5. Section 14.1 is hereby modified as follows (amendments in italics):
14.1 TERM. This Agreement will begin on the Effective Date and will
continue for a period of four (4) years from the Commercial
Release Date, unless earlier terminated as set forth in this
Section 14 (the "Term"). At GFOL's option, the Term may be
terminated for convenience or otherwise by providing Microsoft
notice of its intention to terminate within ninety (90) days
in advance of the first anniversary of the Commercial Release
Date. This Agreement may be terminated for convenience or
otherwise by either party by providing the other with notice
of its intention to terminate within ninety (90) days in
advance of the second and third anniversary of the Commercial
Release Date. This Amendment No. 2 may be terminated by
Microsoft at any time, without cause, upon ninety
4
(90) days prior written notice to GFOL, and such termination
will apply to this Amendment No. 2 only. Upon such termination
of Amendment No. 2, the Agreement will remain in effect until
the expiration of the Term, unless earlier terminated as set
forth in Section 14 of the Agreement.
6. Section 14.4 is hereby modified as follows (amendments in italics):
14.4 RIGHTS AND OBLIGATIONS UPON TERMINATION OR EXPIRATION.
Promptly upon termination or expiration of this Agreement GFOL
will immediately cease and desist from all use of the MSN
Template on the Co-Branded Survey Site and will delete all
personally identifiable information regarding Entertainment
Panel Members from its database and cease using the
Entertainment Panel.
7. A new Exhibit 5 is hereby added (see attached Exhibit 5).
Except as specifically modified herein or in prior amendments, all other terms
and conditions of the Agreement shall remain in full force and effect.
WHEREBY the parties enter into this Amendment as of the later of the two
signatures dates below ("the Effective Date of this Amendment Number 2").
MICROSOFT CORPORATION GREENFIELD ONLINE, INC.
("MICROSOFT") ("GFOL")
By /s/ Xxxxx Britain By /s/ Xxxx Xxxxxx
------------------------------ ---------------------------
Name Xxxxx Britain Name Xxxx Xxxxxx
Title Bus. Dev. Mgr. Title CEO
Date May 15, 2002 Date May 10, 2002
5
AMENDMENT NO. 3
TO THE COMMERCIAL AGREEMENT
This AMENDMENT NUMBER NO. 3 ("Amendment No. 3") to the Commercial Agreement is
entered into by GREENFIELD ONLINE, INC. ("GFOL") and MICROSOFT CORPORATION
("Microsoft").
The parties entered into a Commercial Agreement on November 28, 2001, regarding
an online Market Research Survey Service to be developed marketed and serviced
by GFOL and distributed by Microsoft over the Microsoft Network.
The parties agree as follows:
1. The following definition in Section 1 of the Agreement is hereby
modified as follows (amendments in italics):
"SURVEY(S)" means the market research survey(s) created by GFOL, or
created by third parties as permitted by GFOL, and marketed and made
available by GFOL on the Co-Branded Survey Site. GFOL will ensure that
all Surveys created by third parties that GFOL markets and makes
available on the Co-Branded Survey Site will be of comparable or higher
quality than the Surveys created by GFOL.
2. Termination of Amendment No. 3. The rights, obligations and duties
imposed on the parties by Amendment No. 3 may be terminated by
Microsoft at any time: (i) upon fifteen (15) days written notice to
GFOL if GFOL breaches this Amendment No. 3 and fails to cure such
breach within the fifteen day notice period; or (ii) without cause,
upon thirty (30) days prior written notice to GFOL. Termination under
this Section will apply to this Amendment No. 3 only and upon such
termination, the Agreement will remain in full force and effect until
the expiration of the Term, unless earlier terminated as set forth in
Section 14 of the Agreement. Upon notice of termination under this
Section, GFOL will use best efforts to remove all third party provided
Surveys from the So-Branded Survey Site, provided however that GFOL
will be allowed to continue posting Surveys created by third parties to
the Co-Branded Survey Site for up to sixty (60) days beyond the
effective date of termination in order to meet contractual commitments
entered into by GFOL prior to receipt of a termination notice.
Except as specifically modified herein or in prior amendments, all other terms
and conditions of the Agreement will remain in full force and effect.
1
WHEREBY the parties enter into this Amendment as of the later of the two
signatures dates below ("Effective Date of Amendment No. 3").
MICROSOFT CORPORATION GREENFIELD ONLINE, INC.
("MICROSOFT") ("GFOL")
By /s/ Xxxxx Britain By /s/ Xxxx Xxxxxx
------------------------------- ----------------------------
Name Xxxxx Britain Name Xxxx Xxxxxx
Title Business Development Manager Title President and CEO
Date 6/17/02 Date May 10, 2002
2
AMENDMENT NO. 4
TO THE COMMERCIAL AGREEMENT
This AMENDMENT NUMBER NO. 4 ("Amendment No. 4") to the Commercial Agreement is
entered into by GREENFIELD ONLINE, INC. ("GFOL") and MICROSOFT CORPORATION
("Microsoft") and is effective as of October 1, 2002 ("Amendment No. 4 Effective
Date").
WHEREAS: The parties entered into a Commercial Agreement on November 28, 2001,
regarding an online market research survey service to be developed, marketed and
maintained by GFOL and distributed by Microsoft over the Microsoft Network.
WHEREAS: The parties desire to modify the Commercial Agreement to allow GFOL to
recruit General Panel Members to participate in online marketing research
Surveys of a commercially reasonable nature via any source, including the
Microsoft Network.
The parties agree as follows:
1. The following definitions in Section 1 of the Agreement are hereby
added or modified as follows:
"ACTIVE GENERAL PANEL MEMBER" means a Valid General Panel Member who
has taken at least one (1) Survey within the past thirty (30) day
period.
"GENERAL PANEL" means the group of individuals recruited by GFOL via
any source, including MSN, who have opted-in to take online marketing
research Surveys of a commercially reasonable nature. General Panel
Members recruited via MSN must be at least eighteen (18) years of age.
Surveys presented to General Panel Members recruited via MSN will not
contain any question or material that is profane, obscene, hateful,
illegal or discriminatory.
"GENERAL PANEL SIGN UP PAGE" means the web page within the Co-Branded
Survey Site used to recruit General Panel Members.
"INITIAL RECRUITMENT PERIOD" means in connection with the Entertainment
Panel the period of time commencing when Microsoft first published
Links to the Entertainment Panel Sign-up Page on MSN and ending when
the number of Valid Entertainment Panel Members reaches [****], and in
connection with the General Panel, the period of time commencing when
Microsoft first published Links on MSN to the Co-Branded Survey Site,
acting as a recruiting vehicle for the General Panel, and ending when
the
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number of Valid General Panel Members reaches [****], but in no event
beyond March 31, 2003.
"MSN DOLLARS PROGRAM" means the incentive mechanism used to recruit and
compensate General Panel Members recruited via MSN.
"QUALIFYING SURVEY" means (i) in connection with the Entertainment
Panel, a Survey taken by an Entertainment Panel Member and which GFOL
receives payment from a third party, and (ii) in connection with the
General Panel, a Survey taken by a General Panel Member recruited via
MSN and which GFOL receives payment from a third party.
"QUALIFYING SURVEY FEE" means (i) in connection with the Entertainment
Panel the [****] fee paid by GFOL to Microsoft in connection with each
Qualifying Survey taken by an Entertainment Panel Member, and (ii) in
connection with the General Panel the [****] fee paid by GFOL in
connection with each Qualifying Survey taken by a General Panel Member
recruited via MSN.
"RECRUITING FEE" means the [****] fee paid by GFOL to Microsoft for
each Entertainment Panel Member and each General Panel Member recruited
by Microsoft via Links displayed within MSN.
"VALID GENERAL PANEL MEMBER" means a General Panel Member that (i) has
completed GFOL's double opt-in process for joining the General Panel;
(ii) has not removed themselves from the General Panel; (iii) whose
email address on record with GFOL is valid, and (iv) has not previously
registered to become a member of any other GFOL panel, including the
Entertainment Panel, within the past twelve months.
"PANEL MEMBER(S)" means those individuals recruited by GFOL via the
Co-Branded Survey Site or other means via MSN, who opt-in to be members
of a marketing research panel, owned and operated by GFOL and receive
invitations from GFOL to take Surveys.
"PORTAL" means any general interest subject web site available to the
public on the Internet through direct or password protected access,
either free or subscription based, that aggregates content and services
such as search functionality and Links to other web sites for purposes
of advertising or transactional revenue, including but not limited to,
web sites such as AOL, Yahoo, Terra Lycos, Excite, iWon or Google.
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"ROUTER PAGE(S)" means those Co-Branded Survey Site page(s) that host a
questionnaire which qualifies an End User as a potential Survey
participant or, at GFOL's option, recruits an End User into the General
Panel.
3. Termination of Amendment No. 4. The rights, obligations and duties
imposed on the parties by Amendment No. 4 may be terminated only in
accordance with the terms of Section 14.
4. Section 2.11 is hereby added as follows:
2.11 With regard to the General Panel Recruiting, GFOL will:
2.11.1 Develop, host and maintain the General Panel Sign-up
Page as part of the Co-Branded Survey Site on its
servers and be solely responsible for all customer
support. The form and content of the General Panel
Sign-up Page will be materially similar to the
mock-up set forth on Exhibit 5.
2.11.2 Be solely responsible for (i) all aspects involved in
recruiting General Panel Members and (ii) payment of
any incentive or other payment to General Panel
Members.
2.11.3 Permanently identify all General Panel Members
recruited via the Co-Branded Survey Site as having
been recruited via MSN.
2.11.4 During the Initial Recruitment Period for the General
Panel, provide Microsoft with weekly reports
containing (i) the number of new General Panel
Members recruited via MSN and joining the General
Panel during the reporting period; (ii) the
cumulative number of General Panel Members recruited
via MSN, (iii) the total and average number of Valid
General Panel Members recruited via MSN; (iv) the
total number of Active General Panel Members
recruited via MSN; and (v) the number of Qualifying
Surveys completed by General Panel Members and
Entertainment Panel Members recruited via MSN during
the reporting period. After the Initial Recruitment
Period, GFOL will provide Microsoft with monthly
reports, as detailed above, due within ten (10) days
after the end of each calendar month.
2.11.5 Track the number of times General Panel Members
recruited via MSN are emailed invitations to take
Surveys, track the number of Surveys initiated by
General Panel Members
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recruited via MSN and track the number of Qualified
Surveys completed by General Panel Members recruited
via MSN.
2.11.6 MSN Dollars. Implement the MSN Dollars Program upon
commercially reasonable terms to be agreed upon
between the parties.
2.11.7 Once a quarter during the Term provide Microsoft with
completed Surveys via the General Panel for one (1)
marketing research study authored by MSN of no more
than five hundred (500) participants, with an
incidence of greater than sixty percent (60%) and of
no more than five hundred (500) participants that is
no longer than fifteen (15) minutes. GFOL will not be
obligated to pay any Qualifying Survey Fees for the
Surveys provided to Microsoft pursuant to this
Section 2.11.7.
2.11.8 Provide custom marketing research firms that perform
marketing research for Microsoft a discount of ten
percent (10%) off GFOL's standard rate card price for
accessing the General Panel. This discount may not be
taken in addition to any other discount provided to
any custom marketing research firm performing
services for Microsoft.
5. Section 3.6 and 3.7 are added as follows
3.6 With regard to the General Panel Recruiting, Microsoft will:
3.6.1 During Q-4 of 2002, promote the opportunity to join
the General Panel via Links within MSN or other media
agreed to by the parties. The creation, content, size
and placement of all Links shall be within
Microsoft's sole discretion, provided however that
the Links shall Link MSN End Users directly to the
Router Page(s). The parties agree that the goal of
displaying these Links within MSN is to attract
[****] individuals appropriate for membership in the
General Panel to join the General Panel. Microsoft
shall be responsible for all costs associated with
displaying these Links within MSN. GFOL will only be
required to pay a Recruiting Fee for [****] of the
Q-4 recruiting goal, and will notify MSN promptly
upon receiving [****] General Panel Members, so that
MSN may suspend its recruiting efforts for that
quarter. Guarantee Quarterly Payments are suspended
for X0 0000.
3.6.2 In 2003 and in each subsequent year of the Term,
promote the opportunity to join the General Panel via
Links within MSN or other media agreed to by the
parties. The creation, content, size and placement of
all Links shall be within Microsoft's sole
discretion,
4
provided however that the Links shall Link MSN End
Users directly to the Co-Branded Survey Site.
Microsoft shall be responsible for all costs
associated with displaying these Links within MSN.
GFOL will only be required to pay a Recruiting Fee
for [****] of the quarterly recruiting goal, and will
notify MSN promptly upon receiving an incremental
[****] General Panel Members, so that MSN may suspend
its recruiting efforts for that quarter.
3.7 Microsoft will pay all incentives and data processing costs
associated with the marketing research study pursuant to Section 2.11.
6. Section 4 Ownership will be amended as follows:
4. Ownership. GFOL will own all design, technology, code, and
other materials provided by GFOL in connection with the
Research Surveys and the Co-Branded Survey Site. Subject to
its obligation to pay MSN Qualifying Survey Fees, GFOL will
own the General Panel and the Entertainment Panel. Microsoft
will own all design, technology, code, and other materials
provided by Microsoft in connection with the Research Survey
and the Co-Branded Survey Site.
6. Section 6 Clicks Forecast will be amended as follows:
6. Clicks Forecast Commencing on December 1, 2002, and every four
(4) weeks thereafter, GFOL will provide Microsoft with a
forecast of the maximum number of Panel Members or Clicks, as
the case may be, that it will require during the succeeding
four (4) week period ("Panel Forecast" or "Click Forecast",
and together "Forecasts"). These Forecasts will include the
number of Clicks or General Panel Members, estimated number of
Clicks, and general demographic information about the desired
Survey participants or General Panel Members, as the case may
be.
7. Section 8 Exclusivity shall be deleted in its entirety and replaced
with the following:
8. Exclusivity. During the Term, Microsoft will be the exclusive
Portal promoting and distributing GFOL's online surveys. GFOL
will not enter into any agreement with any other company for
distribution or promotion of GFOL's online surveys via any
other Portal. GFOL's exclusivity obligations will expire if
Microsoft fails to meet its performance guarantee as provided
for in Section 9.3.2 and 9.3.3 below. Additionally, during the
Term, GFOL will be Microsoft's exclusive third party online
survey partner for recruiting Survey participants via
integrated content, and Microsoft's exclusive third
5
party online survey partner for recruiting members into an
online marketing research panel via integrated content.
Microsoft's exclusivity obligations shall expire if GFOL fails
to pay any Guaranteed Quarterly Payment as provided for in
Section 9.3. Notwithstanding the above, Microsoft may conduct
its own online surveys or online surveys on behalf of Key
Customers either directly or through third parties, provided
that such online surveys, or recruitment for such online
surveys, are not displayed on MSN pages containing GFOL's
integrated content placements. In addition, Microsoft may sell
banner advertisements to companies for the purpose of
recruiting survey participants for online surveys other than
GFOL's Surveys, provided that (i) Microsoft does not appoint a
producer to manage the placement and content of such ads, and
(ii) the ads will not be displayed on pages displaying GFOL's
integrated content placements (if such blocking is not
technically and economically feasible as of the commercial
availability of the ad placement, it will be implemented as
soon as technically and economically feasible).
8. Section 9.2 Clicks Payment shall be deleted in its entirety.
9. Section 9.3 Guaranteed Quarterly Payments shall be deleted in its
entirety and replaced with the following:
9.3 Guaranteed Quarterly Payments. Commencing on January 1, 2003,
GFOL will guarantee Microsoft the following minimum quarterly
payments, payable within 30 days of the end of each quarter,
provided that Microsoft meets its performance guarantees as set
forth below:
9.3.1 [****], which may be comprised of any ratio of Panel
Recruiting Fees, Survey Fees or Click Fees at the
rate of [****] per Click. Subject to the provisions
of Section 9.3.2 below, if the Guaranteed Quarterly
Payment in any quarter is in excess of Recruiting
Fees, Survey Fees or Click Fees earned by Microsoft
in that quarter, the amount overpaid will be a credit
against fees due in subsequent quarters in excess of
the Guaranteed Quarterly Payment.
9.3.2 In the event that in any two (2) consecutive
quarters, Microsoft fails to deliver a minimum of
[****] General Panel Members per quarter, GFOL will
be relieved of the obligation to make Guaranteed
Quarterly Payments in future quarters until the
amount paid by GFOL in the prior quarters in excess
of amounts due
6
Microsoft for Recruiting Fees, Survey Fees and Click
Fees for such quarters, has been fulfilled by
applying such overpayment to amounts due for any fees
due in such future quarters. For example, if in the
first two (2) quarters of 2003, MSN recruits only
[****] General Panel Members per quarter, and GFOL
does not owe Microsoft any other fees for such
quarters, GFOL would have a credit against all future
fees in the amount of [****] calculated as follows
[two Guaranteed Quarterly Payments equaling $[****]
less total Recruiting Fees of $[****] ([****]
panelists x $[****] per panelist)], to be applied
toward any and all fees due for future quarters. GFOL
would also be relieved of the obligation to make
Guaranteed Quarterly Payments for future quarters
until all of the [****] credit had been applied to
such fees. For purpose of clarification, GFOL will
pay Microsoft for any fees associated with any ratio
of Panel Recruiting Fees, Survey Fees or Click Fees
that exceed the then-current credit.
9.3.3 In the event that Microsoft fails to recruit a total
of [****] or more General Panel Members in any two
(2) consecutive quarters, in addition to the right to
the credits set forth in Section 9.3.1 and 9.3.2,
GFOL will be relieved of its obligation to make
Guaranteed Quarterly Payments for the remainder of
the Term. For purpose of clarification, GFOL will pay
Microsoft for any fees associated with any ratio of
Panel Recruiting Fees, Survey Fees or Click Fees
earned in all subsequent quarters.
9.3.4 Within thirty (30) days of the end of the Term,
Microsoft shall refund any overpayment unused by GFOL
if accrued Guaranteed Quarterly Payments balance is
in excess of $[****] otherwise that excess amount
will be carried forward into succeeding quarters as a
credit against Qualifying Survey Fees.
9. Section 9.7 is added as follows:
9.7 General Panel Payments for Q-4 2002 Recruiting
9.7.1 GFOL shall pay Microsoft a [****] Recruiting Fee for
each new General Panel Member recruited via Links
displayed within MSN, or other media agreed to by the
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parties, for up to [****] General Panel Members
recruited during the Q-4 of 2002. Additionally, GFOL
will pay Microsoft a [****] Qualifying Survey Fee for
each Qualifying Survey completed by a General Panel
Member. On January 1, 2003, GFOL will receive a
credit against all Qualifying Survey Fees due to
Microsoft, equal to the amount of Recruiting Fees due
to Microsoft for Q-4 of 2002. If the Recruiting Fees
due to Microsoft in Q-4 of 2002 are in excess of the
Qualifying Survey Fees due to Microsoft for that
period, that excess amount will be carried forward
into succeeding quarters as a credit against
Qualifying Survey Fees.
9.7.2 In 2003 and each subsequent year of the Term, in
addition to the Guaranteed Quarterly Payments
provided for in Section 9.3, GFOL shall pay Microsoft
a [****] Qualifying Survey Fee for each Qualifying
Survey completed by a General Panel Member recruited
via the Co-Branded Survey Site in 2003 and each
subsequent year of the Term. All payments made by
GFOL to Microsoft under this Section 9.7 will be
credited toward the Guaranteed Quarterly Payments
detailed in Section 9.3 or the cap on Quarterly
Payments outlined in Section 9.4 of the Agreement. At
the end of Q-1 of 2003 and at the end of each
subsequent quarter, GFOL will receive a credit
against all Qualifying Survey Fees due for that
quarter equal to the Recruiting Fees due for such
quarter. If the Recruiting Fees due to Microsoft in
any such quarter are in excess of the Qualifying
Survey Fees due to Microsoft for that period, that
excess amount will be carried forward into succeeding
quarters as a credit against Qualifying Survey Fees.
10. Section 14.1 Term is deleted in its entirety and replaced with the
following:
8
14.1 Term. This Agreement, and all Amendments hereto will
begin on their Effective Dates (each as defined in
such Agreement or Amendment) and will continue for a
period of four (4) years from February 8, 2002 (the
Commercial Release Date), unless earlier terminated
as set forth in this Section 14 (the "Term"). This
Agreement may be terminated for convenience or
otherwise by either party by providing the other with
written notice of its intention to terminate within
ninety (90) days in advance of the third and fourth
anniversary of the Commercial Release Date.
11. Section 14.4 Rights and Obligations upon Termination or Expiration
(which was incorrectly numbered in the original Agreement) is deleted
in its entirety and replaced the following Section 14.6:
14.6 Rights and Obligations upon Termination or
Expiration. Promptly upon termination or expiration
of this Agreement GFOL will immediately cease and
desist from all use of the MSN Template on the
Co-Branded Survey Site. GFOL will retain all
personally identifiable information regarding
Entertainment Panel Members and General Panel Members
recruited via MSN after termination or expiration,
and shall continue to pay MSN Qualifying Survey Fees
until such time as GFOL ceases to conduct surveys
using the General and Entertainment Panel members
recruited via MSN.
Except as specifically modified herein or in prior Amendments, all other terms
and conditions of the Agreement will remain in full force and effect.
WHEREBY the parties enter into this Amendment No. 4 as of the Amendment No. 4
Effective Date.
MICROSOFT CORPORATION GREENFIELD ONLINE, INC.
("MICROSOFT") ("GFOL")
By /s/ Xxxx X. Xxx Xxxxxxx By /s/ Xxxx Xxxxxx
-------------------------------------- -------------------------
Name Xxxx X. Xxx Xxxxxxx Name Xxxx Xxxxxx
Title General Manager, New Bus. Devel. Title President and CEO
9
