Exhibit 10.28
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.
GREENFIELD ONLINE, INC.
AND
XXXXXX XXXXXX SOFRES INTERSEARCH CORPORATION
ALLIANCE, LICENSE AND SUPPLY AGREEMENT
This Agreement (the "Agreement"), dated this 31st day of January, 2002, is
by and among Greenfield Online, Inc., a Delaware corporation with its principal
place of business at 00 Xxxxx Xxxx, Xxxxxx, XX ("GFOL"), and Xxxxxx Xxxxxx
Sofres Intersearch Corporation, a Pennsylvania corporation, with its principal
place of business at 000 Xxxxxxx Xxxx, Xxxxxxx, XX, 00000 ("TNSI").
RECITALS
WHEREAS, GFOL is engaged in the businesses of providing access to the GFOL array
of Internet-based panels and other services, including the following items:
(a) GFOL's own panel (the "GFOL Panel");
(b) through GFOL's potential strategic alliance with Microsoft
Corporation, survey respondents to be available through the
MSN network using integrated content solicitations, as it
eventually exists and is modified from time to time (the "MSN
Service"); and
(c) Other externally-sourced sample (the "Non-MSN River Sources")
all of the foregoing current and future GFOL sample sources (including without
limitation future developments or versions of the GFOL Panel and future Non-MSN
River Sources) being sometimes hereinafter referred to as "GFOL Sample Sources,"
and access to all of the GFOL Sample Sources together with other current and
future services offered by GFOL (including without limitation those services
usable by TNSI with respect to the TNSI Sample Sources and the TNSI Proprietary
Panels, as defined in the following paragraph) being sometimes hereinafter
referred to collectively as "GFOL Services"; and
WHEREAS, TNSI is in the business, among other things, of providing custom market
research services, and in connection with that business TNSI owns and/or uses
from time to time sample sources other than the GFOL Sample Sources
(collectively, the "TNSI Sample Sources"), including without limitation panels
that are constructed exclusively for and are proprietary to particular clients
of TNSI, whether hosted on GFOL's servers or elsewhere ("TNSI Proprietary
Panels"); and
WHEREAS, TNSI's affiliate known as Xxxxxx Xxxxxx Sofres Operations, Inc. ("TNS
Operations") has today purchased from GFOL certain assets associated with GFOL's
custom market research business (the "Custom Business"), pursuant to a certain
Asset Purchase Agreement dated as of January 31, 2002 (the "Asset Agreement");
and
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WHEREAS, TNSI will manage those assets acquired by TNS Operations for the
benefit of TNS Operations; TNSI now manages certain other assets of TNS
Operations; and TNSI may come to manage additional assets of TNS Operations
and/or of other TNSI corporate affiliates in the future (the units of TNS
Operations and all such other affiliates managed by TNSI now or in the future
being hereinafter referred to collectively as "TNSI Affiliates"); and
WHEREAS, as a material condition to the foregoing purchase and sale of assets,
the parties to the Asset Agreement have agreed to enter into an alliance
pursuant to which GFOL will provide the GFOL Services to TNSI at preferred rates
and will otherwise help TNSI to develop and promote TNSI's on-line research
business, on the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Description of Services. During the Term (as hereinafter defined), GFOL
will provide TNSI (whether for TNSI's own benefit or for the benefit of
one or more TNSI Affiliates) with access to all of the GFOL Services
through a dedicated team of GFOL Client Services staff. GFOL will supply
the GFOL Services to the fullest extent required by TNSI and the TNSI
Affiliates, as ordered, received and paid for by TNSI from time to time,
subject to any limitations contained in this Agreement. Each TNSI order
will be embodied in a Work Order, in form attached hereto as Schedule 1,
incorporating the terms of this Agreement, and setting forth respondent
descriptions, screening criteria, sample size, incidence, delivery time,
pricing (pursuant to the pricing criteria set forth below in this
Agreement) and other specifications and deliverables. Without limiting the
generality of the foregoing, during the Term TNSI may enter each order
pursuant to one of the following service modes:
1.1. Full Service. GFOL shall program TNSI's research surveys and
distribute invitations to the appropriate GFOL Sample Source or TNSI
Sample Source, host the survey on GFOL's infrastructure, gather the
quantitative marketing research data in conformance with project
specifications, and deliver it in untabulated form in an uncleaned
ASCII data file to TNSI (the "Full Service").
1.2. Sample Delivery Service. GFOL will direct appropriate potential
survey respondents (each individually a "Potential Respondent" and
together the "Potential Respondents" or "Sample") to surveys
programmed and hosted on TNSI's computer systems and servers, or on
the computer systems and servers maintained by others but under
TNSI's control or who have contracted with TNSI (the "Sample
Delivery Service"). Sample Delivery Service shall not be available
in connection with GFOL's provision of the MSN Service.
1.3. MSN Service. GFOL will provide TNSI with Full Service (and only Full
Service) with respect to the MSN Service, all pursuant to the
procedures and requirements set forth in Section 1.1 above and such
procedures as GFOL and MSN may establish in the future with respect
to the MSN Service; provided that if the respondents necessary to
fill a study scheduled to be completed on the MSN Service are not
available through or deliverable by MSN, GFOL may fill the
respondent quotas of the study via the GFOL Panel or any Non-MSN
River Source agreed to at that time by TNSI, at the same price per
completed
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interview as stated in the pertinent Work Order.. In addition, GFOL
will procure for TNSI a Charter Membership in the MSN Service, at no
charge to TNSI.
1.4. QuickTake, FocusChat, MindStorm. GFOL will allow TNSI to market and
sell GFOL's proprietary products known as QuickTake, Focus Chat, and
MindStorm (collectively, the "GFOL Products") to TNSI's clients.
GFOL hereby grants to TNSI a non-exclusive, non-transferable,
royalty-free license to use those trademarks and tradenames in
marketing those products, during the Term of this Agreement. With
regard to FocusChat, GFOL will provide TNSI employees with moderator
and client level access to rooms being used by TNSI. GFOL will
provide administrator support to TNSI the full time a room is in use
by TNSI. All FocusChat sessions will be hosted on iTrack's servers.
With regard to MindStorm GFOL will provide TNSI employees with
moderator level access to Mindstorm sessions that are hosted by
GFOL. GFOL will provide TNSI employees with technical support for
the GFOL Products on an as-needed basis. TNSI will have access to
all future releases of the software associated with the GFOL
Products (subject to the terms and provisions of GFOL's license for
the iTrack software). Should GFOL decide to replace any of the GFOL
Products with an alternative solution or to discontinue any GFOL
Products, GFOL will provide TNSI with 90 days' prior notice of such
an event. Notwithstanding the foregoing, GFOL agrees to fulfill all
outstanding projects involving the replaced or discontinued GFOL
Products that TNSI will have sold to TNSI's clients prior to receipt
of notice of substitution or discontinuance.
1.5. Special Services. GFOL will perform for TNSI such special services,
not enumerated above, as GFOL is currently performing or has the
current capability of performing.
1.6. Access to GFOL Systems. In connection with providing the foregoing
GFOL Services, GFOL hereby grants a non-exclusive, non-transferable,
royalty-free license, for the term of this Agreement, to those
employees of TNSI as TNSI may reasonably designate from time to time
to access and use all GFOL systems and technologies, including
without limitation those systems and technologies as are described
in Schedule 1.6(b), to the extent reasonably required by those
employees to support the design, development and performance of
TNSI's research projects.
2.0 Performance Covenants Regarding GFOL Services.
2.1 TNSI's Performance Covenants. During the Term of this Agreement,
TNSI agrees to maintain the following guidelines and practices, and
to be subject to the following requirements, during the conduct of
any survey using the Sample Delivery Service, except for surveys
drawing on TNSI Proprietary Panels or those drawing on TNSI Sample
Sources.
2.1.1 Survey Length and Complexity. GFOL reserves the right to
reject any Work Order on the grounds that the pertinent
questionnaire is too long or complex for respondents in
relation to the incentive offered (if any).
2.1.2 Approval of Incentive Program. Prior to the delivery of any
Potential Respondents, GFOL must review and approve the
incentive program for
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each survey if TNSI proposes that the incentive deviate from
that provided in the price calculator described in Schedule
2.1.2. GFOL reserves the right to reject any such deviating
incentives on the grounds that in its opinion the incentive
offered to Potential Respondents is insufficient to attract
qualified respondents.
2.1.3 Qualification and Return of Respondents. As GFOL directs
Potential Respondents to TNSI surveys it will mask their email
address and attach a unique Respondent identification number.
All TNSI surveys must qualify each Potential Respondent within
the first [****] questions. All Respondents who do not qualify
will be immediately routed back to a URL designated by GFOL.
All Respondents who complete a TNSI survey must, at the
conclusion of the survey, be routed back to a URL designated
by GFOL.
2.1.4 Approval of Systems - Uptime. TNSI shall disclose the
technical and performance specifications of its software and
computer systems (including the software and computer systems
of others used to conduct the surveys) so that GFOL may
determine their capacity and capability. TNSI will maintain
uptime of its systems at [****]% at all times when GFOL is
directing Potential Respondents to TNSI. GFOL reserves the
right to limit the number of Potential Respondents sent to
TNSI based on its assessment of the capacity of its software
and computer systems. If TNSI experiences any downtime or
technical difficulties that result in its systems not being
able to accept Potential Respondents, collect data, allow
Potential Respondents to complete surveys or in any other way
prevent Potential Respondents from taking and completing
surveys (the "Technical Difficulties"), it shall immediately
notify GFOL so it may cease directing Sample to TNSI. TNSI
will compensate GFOL for its panel fees or other sample fees
in attempting to send data and /or Potential Respondents to
TNSI during the Technical Difficulties, such compensation to
be reasonably negotiated at the time by the parties, giving
consideration to such factors as incidence, response rates,
duration of Technical Difficulties and number of respondents;
provided that no fee will be due with respect to any incident
of Technical Difficulties if TNSI notifies GFOL of that
incident within [****] after its onset.
2.1.5 Real-Time Reporting. TNSI shall maintain a system of
"real-time reporting" which shall allow GFOL personnel access
to TNSI's computer systems via the World Wide Web (or such
other method as the parties may agree) so that they can
determine with respect to each of TNSI's surveys: (i) the
number of Potential Respondents that have arrived at the
survey site, (ii) the number of Potential Respondents that
have completed each survey, and (iii) the number of Potential
Respondents that have taken each survey and whose profile
qualifies their responses as acceptable. Should TNSI's real
time reporting systems experience any downtime or technical
difficulties while GFOL is delivering Sample to any TNSI
survey that results in GFOL being unable to access the
information required by this Section, then GFOL shall have the
following options: (a) to discontinue the delivery of
Potential Respondents to the TNSI survey experiencing
reporting difficulties, and to resume upon resolution of the
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problem, or (b) to continue to deliver Potential Respondents
to TNSI surveys and accept TNSI's subsequent accounting of
completed surveys.
2.1.6 No Collection of Personally Identifiable Data. TNSI will not
collect or attempt to collect any personally identifiable
information from any Potential Respondent directed to its
sites and surveys by GFOL without prior authorization from
GFOL. Personally Identifiable Information includes any
information that would allow TNSI to identify a Potential
Respondent at any time in the future, including, but not
limited to, name, address, and email address. Except for
"session cookies" and except as otherwise agreed to by GFOL,
TNSI will not append cookies or other electronic tags to the
browsers of any Potential Respondent. TNSI shall abide by all
CASRO guidelines for online marketing research as they are
promulgated and amended from time to time.
2.1.7 No Recruitment. Except as agreed to by GFOL, TNSI shall take
no action to recruit any Potential Respondent into any panel,
community, or group of individuals, online or offline, or take
any action that would allow TNSI to contact, or allow any
other party to contact, any Potential Respondent at any time
in the future, unless TNSI will have obtained the Potential
Respondent's contact information from an independent source.
2.1.8 Generic Survey Template. Prior to GFOL directing any Potential
Respondents to TNSI's surveys, TNSI must remove any and all of
its business marks and any reference to TNSI or its
subsidiaries from the online survey template to be viewed by
Potential Respondents, such survey templates to be
pre-approved by GFOL in its sole and absolute discretion.
2.1.9 Help Requests. All help requests initiated by Potential
Respondents must be directed to [****]. GFOL will give TNSI
prompt notice of the help requests along with the nature of
the service issues. TNSI will designate a help resource to
work with Greenfield Help to address the service issues raised
by these help requests. TNSI will work diligently to address
all help requests and GFOL reserves the right to stop
delivering Potential Respondents to any and/or all of TNSI's
surveys, until the issues which had given rise to the help
requests have been resolved to GFOL's satisfaction.
2.2 GFOL's Performance Covenants.
2.2.1 Performance Standards. GFOL warrants and covenants that it
will offer and provide the GFOL Services pursuant to the
following requirements:
(a) Panel Size.
(i) Cause the GFOL Panel to be of sufficient size and
composition as to enable GFOL to (a) provide enough Potential
Respondents to meet the needs of the Custom Business as it exists as
of the date hereof, and (b) provide peak period support at least
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equivalent to the peak period support provided by GFOL to the Custom
Business at its highest levels during the preceding [****].
(ii) Apply commercially reasonable efforts to grow the GFOL
Panel so as to be able to fulfill and support TNSI's research
business needs as the same may expand during the Term.
(b) Panel Quality.
(i) All panel members have agreed to participate in research
(ii) Use of a double opt-in process to recruit panel members
and adhere to strict privacy standards
(iii) Panel draws its members from the entire Internet and is
not confined to a limited number of Web sites or any one service
provider such as AOL or EarthLink. Panel is representative of the
entire spectrum of Internet users.
(iv) Abide by all CASRO guidelines for online marketing
research as they are promulgated and amended from time to time.
(c) System Up-Time.
(i) [****]% systems uptime on average per quarter.
(d) Execution Quality (for those Work Orders accepted pursuant to
Section 2.2.2 below).
(i) Perform Work Order specifications.
(e) Hewlett Packard Requirements (for those Work Orders accepted
pursuant to Section 2.2.2. below). Maintain for all Work
Orders for Hewlett Packard Company, under that certain Master
Services Agreement #CS02142 between GFOL and Hewlett Packard
which has been assigned by GFOL to TNS Operations pursuant to
the Asset Agreement, the performance and quality standards set
forth in that agreement, or in any renewal or replacement
agreement with Hewlett Packard Company within which the
performance and quality standards are no more stringent than
in the above-described contract.
(f) Errors & Omissions Insurance.
(i) Maintain at least $1,000,000 in errors and omissions or
professional indemnity insurance coverage from a reputable
underwriter covering standard professional risks, and deliver a
certificate of such coverage to TNS annually or in the event of any
change in the underwriter or coverage.
During the Term, the parties will continuously consult with one another and work
cooperatively toward achieving GFOL's compliance with the foregoing performance
standards. Notwithstanding the foregoing provisions of Sections 2.2.1(a) and
2.2.1(b), GFOL cannot guarantee the performance, size, growth rate or panel
quality of the GFOL panel relative to members who are between 13 and 17 years of
age. GFOL will use its commercially reasonable efforts, but in no event less
that the efforts undertaken by
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GFOL in 2001, to maintain panel size and quality standards established by
Sections 2.2.1(a) and 2.2.1(b) above relative to the 13 through 17 year old age
group.
2.2.2 Mandatory Acceptance of Work Orders. Subject as set forth
below in this Section 2.2, in each instance when TNSI submits
a Work Order to GFOL, if the specifications are reasonable,
GFOL must accept the obligation to perform that Work Order,
either through GFOL's own resources or through an outside
sample supplier. The specifications will be deemed reasonable
if (a) based on GFOL's performance obligations set forth in
Subsections 2.2.1 (a), (b) and (c) above, the specifications
are reasonable in regard to incidence, sample size, length,
delivery date, incentives, and good panel management
practices, or (b) the specifications call for GFOL to perform
work of a nature that it has performed for its clients in the
past if GFOL still has the pertinent resource availability at
the time of TNSI's submission of the Work Order (in either
case, a "Reasonable Order"). Without limiting the generality
of the foregoing, GFOL must perform all services that it had
contracted to perform for its clients pursuant to the Assumed
Contracts under the Asset Agreement, each of which contracts
for purposes of this Section 2.2.2 will be deemed a Reasonable
Order.
2.2.3 Rejection or Conditional Acceptance of Work Orders. (a)
Notwithstanding the provisions of Section 2.2.2 above, if the
Work Order is not a Reasonable Order, GFOL may either (1)
reject the obligation to perform it (a "Proper Rejection"), or
(2) accept the obligation to perform it on a best efforts
basis after identifying to TNSI the performance risks causing
the order to not be a Reasonable Order (a "Conditional
Acceptance"). Any rejection under claim that the Work Order is
not a Reasonable Order will nevertheless be deemed a
Reasonable Order, and not an excusable rejection, if,
following the rejection, TNSI procures due performance of a
substantially identical work order by an alternative vendor of
online sample of TNSI's choosing of equal or greater quality
than the GFOL sample as measured by the standards set forth in
Sections 2.2.1(b)(i) and 2.2.1(b)(ii), at a price not
exceeding [****]% of the price set forth in the pertinent Work
Order (an "Improper Rejection"). Alternatively, if the Work
Order does not comply with the provisions of Sections 2.1.1,
2.1.2, 2.1.3 or 3.2.1 above, GFOL may reject the Work Order
(also a Proper Rejection).
(b) In each instance when TNSI submits a Work Order to GFOL, TNSI
will designate on that Work Order a date and time by which TNSI
seeks GFOL's response as to whether GFOL will accept or reject that
Work Order (the "Response Time"). Provided that the Response Time
for any particular Work Order is reasonable in view of GFOL's
performance requirements set forth in Subsections 2.2.1 (a), (b) and
(c) above and in light of such considerations as sample size,
delivery date, incentive and survey length, GFOL must accept,
Conditionally Accept, or reject that Work Order by the Response
Time; and if it fails to do so, its lack of response, at TNSI's
election, will be deemed a rejection, and subject to the other
provisions of this Agreement pertaining to rejections.
2.2.4 Performance Infractions.
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(a) In each instance that TNSI experiences (1) a material breach
of a performance obligation set forth in Section 2.2.1 in the
case of an accepted Work Order, or (2) a material breach of a
performance obligation set forth in Section 2.2.1 in the case
of a Conditional Acceptance if that breach was not related to
an identified risk that caused TNSI's order to be an
Unreasonable Order (in either of the foregoing cases, a
"Performance Infraction"), TNSI may notify GFOL of such event
(an "Infraction Notice"), in which case GFOL will explain to
TNSI the causes of the Performance Infraction, the measures
(if any) that GFOL intends to take to prevent subsequent
Performance Infractions of similar kind, and the likelihood of
GFOL's preventing subsequent Performance Infractions of
similar kind (the "Infraction Response"). Infraction Notices,
if given, shall be in writing and shall be delivered to GFOL
promptly after TNSI experiences a Performance Infraction.
(b) As to any Performance Infraction involving a particular Work
Order that GFOL did not deliver timely or correctly to TNSI (a
"Defective Project"), at TNSI's option either:
(1) TNSI will cancel that Work Order, in which case
the purchase price for that Work Order (A) during
the first [****] of the Term will be credited
against the next [****] Minimum Guaranteed Revenue
payments (as defined in Sections 7 and 8 below)
and (B) in subsequent years of the Term will be
promptly refunded to TNSI; or
(2) GFOL will timely and correctly perform or
re-perform that Work Order.
Notwithstanding anything else contained in Section 17 or
elsewhere in this Agreement, GFOL shall not be liable to TNSI
for any damages in connection with negligent performance that
results in the untimely or incorrect performance of a Work
Order; provided that the foregoing exception will not apply to
GFOL's performance before or after the date hereof of any
portion of any Assumed Contract (as defined in the Asset
Agreement), as to which no such limitation of liability toward
the pertinent client existed in favor of GFOL prior to that
Assumed Contract's assumption by TNS Operations under the
Asset Agreement and continues not to exist at the time of such
performance by GFOL; and provided further that TNSI will use
commercially reasonable efforts to contractually limit its
liability toward such client under such Assumed Contracts
(including under any replacements or renewals thereof), the
reasonableness of such efforts to reflect the entirety of
factors affecting TNSI's business relationship with the
pertinent client..
2.2.5 Default. If (a) GFOL commits a Performance Infraction
(including without limitation a Defective Project) either (1)
[****] any calendar quarter or (2) [****] period, and if TNSI
has in each instance delivered an Infraction Notice, or (b)
GFOL commits [****] Improper Rejections during any [****]
period, GFOL will be in default under this Agreement; and if
GFOL does
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not correct all of the circumstances giving rise to the
default within [****] after receiving notice of such default
from TNSI, TNSI may terminate this Agreement pursuant to
Section 12.2 below. Notwithstanding the foregoing, if any one
of the Performance Infractions has involved the inadequacy of
the size or composition of the GFOL Panel, the right to cure
will be extended to a date which is 120 days after TNSI's
first Infraction Notice pertaining to that circumstance. Any
remedy elected by TNSI under Subsection 2.2.4(b) above with
respect to a Defective Project will not cause that Defective
Project to be excluded from the count of Performance
Infractions set forth above in this Section 2.2.5.
2.2.6 Data Transfers.
GFOL will send TNS monthly database updates containing updated
respondent profile, contact history and panel management
information on a disaggregated basis with respect to all
present and future TNSI Proprietary Panels housed on GFOL's
servers, including without limitation those panels owned by
Hewlett Packard Company and Wizards of the Coast.
3. Privacy Policies and Content Restrictions.
3.1 Privacy Policies.
3.1.1 Governing Policies. Whether GFOL is conducting surveys for
TNSI by way of the Full Service or the MSN Service, or whether
TNSI is conducting surveys using the Sample Delivery Service,
the party conducting the survey will abide by the privacy
policies of all of (a) GFOL, (b) TNSI, (c) the pertinent
sample source, whether GFOL Sample Source (including without
limitation MSN) or TNSI Sample Source, (d) the Council of
American Survey Research Organizations ("CASRO"), (e) the
Children's Online Privacy Protection Act, and (f) all other
applicable laws, rules and regulations.
3.1.2 Change in Policies. During the Term of this Agreement, neither
party will change its respective privacy policy in such a
manner as would derogate from the intentions of this Agreement
and the performance of the transactions contemplated hereby,
unless required by pertinent industry standards or applicable
law, and only upon reasonable prior notification to the other
party.
3.2 Survey Content Restrictions.
3.2.1 Restrictions on Questionnaires. In rendering the Full Service
or the MSN Service, GFOL reserves the right to reject any Work Order or
survey questionnaire that contains profane, obscene, hateful or illegal
content, or (in the case of the MSN Service) any other content that
violates the standards of the MSN.
4. Ownership of Intellectual Property:
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4.1 GFOL Property. TNSI agrees that (as between GFOL and TNSI) the GFOL
Sample Sources, and GFOL's proprietary software and technology used
by GFOL in performing the GFOL Services, are and shall be solely
owned by GFOL and shall constitute GFOL's confidential, proprietary
and trade secret information (the "GFOL Property"). By entering into
this Agreement or participating in the transactions described
herein, TNSI shall not acquire any interest in and to any of the
GFOL Property. The preceding two sentences are qualified, however,
in that, by way of the Asset Agreement, GFOL has this day assigned
to TNS Operations certain residual rights in and to GFOL
methodologies and know-how in the possession of certain employees of
TNSI that were employees of GFOL prior to the date hereof.
4.2 TNSI Property. GFOL agrees that (as between GFOL and TNSI) (a) the
TNSI Sample Sources, the TNSI Proprietary Panels, TNSI's survey
questionnaires and responses, the identities of TNSI's clients, any
TNSI business strategies or research methodologies that GFOL learns
in the course of performing the GFOL Services, the pricing of any of
TNSI's contracts with its customers, and any software, data,
methodologies and know-how that GFOL learns of in connection with
gaining access to TNSI's computer systems, and (b) all such
information owned by Xxxxxx Xxxxxx Sofres plc. and its affiliates
(collectively, the "TNS Group"), are and shall be solely owned by
TNSI, and shall constitute TNSI's confidential, proprietary and
trade secret information (the "TNSI Property"). By entering into
this Agreement or participating in the transactions described
herein, GFOL shall not acquire any interest in and to any of the
TNSI Property.
5. TNSI's Purchase Obligations.
(a) During the Term of this Agreement (the "Term"), (a) TNSI and (b) the
TNSI Affiliates except to the extent that future TNSI Affiliates are
prohibited by contracts that pre-date TNSI's management of them,
shall offer all of their requirements for US based Internet research
sample (including without limitation (x) re-bids for projects not
yet contracted with third parties and (y) work to be performed by
those companies for the TNS Group) to GFOL before offering them to
any other supplier. If GFOL notifies TNSI that GFOL is unable to
satisfy a project's requirements, including those related to price,
sample size, incidence, and/or delivery time, with or without such
inability constituting a violation of GFOL's obligations under
Section 2.2 above, TNSI may use alternative sample sources. If GFOL
does not accept, Conditionally Accept or reject the pertinent
project by the Response Time designated by TNSI on the Work Order
(as described in Section 2.2.3 above), and if that Response Time for
that Work Order is reasonable in view of GFOL's performance
requirements set forth in Subsections 2.2.1 (a), (b) and (c) above
and in view of such considerations as sample size, delivery date,
incentive and survey length, GFOL's lack of response, at TNSI's
election, will be deemed a rejection, and subject to the other
provisions of this Agreement pertaining to rejections. Nothing in
this Subsection 5(a) will restrict TNSI from obtaining competitive
bids pursuant to Subsection 7.1.2(c) below.
(b) In the event that TNSI together with any present or future TNSI
Affiliates purchase Internet research sample from a supplier other
than GFOL in violation of the first sentence of Subsection 5(a)
above at an aggregate price exceeding $[****] per contract quarter
commencing on the date of this
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Agreement, TNSI will pay to GFOL an amount equal to [****]% of such
aggregate purchases in excess of $[****], within [****] after the
end of the pertinent contract quarter. The following non-GFOL
purchases, however, will not be subject to the provisions of this
Subsection 5(b) an will not give rise to any payment obligations on
the part of TNSI :
(1) Purchases by TNSI Affiliates that such TNSI Affiliates must
make from non-GFOL sources by virtue of contracts that predate
TNSI's management of such TNSI Affiliates;
(2) Purchases from non-GFOL sources following the rejection of
Work Orders by GFOL pursuant to Sections 2.2.3 or 5(a);
(3) Non-GFOL purchases on behalf of TNSI clients who expressly
instruct TNSI to not purchase from GFOL or to purchase from a
vendor other than GFOL; and
(4) Purchases from External Vendors pursuant to Subsection 5(d)
below.
Notwithstanding anything else contained in this Agreement (including
without limitation the provisions of Sections 12.2.1 and 17 below),
GFOL will have no remedy for any violations of the first sentence of
Subsection 5(a) except as is stated in this Subsection 5(b).
(c) TNSI will internally enforce its obligations under the first
sentence of Subsection 5(a) by (1) immediately hereafter and
periodically thereafter informing all pertinent employees of those
obligations, (2) penalizing employees for violating those
obligations, (3) directing and training TNSI's manager of its GFOL
relationship to enforce those obligations and prevent violations of
them, and (4) causing that manager to certify quarterly to GFOL the
nature and number of violations (if any) in the preceding contract
quarter. In addition, GFOL may audit TNSI's records of TNSI's sample
purchases [****] during the Term (and at the conclusion of the
Term), at TNSI's premises, at reasonable times and upon reasonable
prior written notice to TNSI, provided that the audit is limited to
GFOL's examination of records pertaining to GFOL's rights under the
first sentence of Subsection 5(a).
(d) Notwithstanding anything else contained in this Agreement in
general, and in the first sentence of Subsection 5(a) in particular,
TNSI may freely purchase Internet sample from parties other than
GFOL ("External Vendors") if that sample consists of physicians, IT
decision-makers, telecommunications decision-makers, or C-Class
corporate employees ("Sector Sample"). TNSI will allow GFOL a
reasonable opportunity to make its own proposals from time to time
to supply Sector Sample to TNSI. TNSI's purchase of Sector Sample
from External Vendors will not give rise to any Qualifying Revenue
under Section 7.1.3 below.
6. MSN Trademark Usage: TNSI agrees that in connection with its use of the
MSN Service, TNSI will not use the business marks of the Microsoft
Corporation, MSN, or their affiliated companies without their express
written consent, which consent must be obtained through GFOL; provided
that nothing herein will restrict TNSI from using any business marks of
the Microsoft Corporation, MSN or their affiliated companies
11
in manners expressly permitted by independent arrangements between TNSI
and any of those companies, or by the common law.
7. Fees.
7.1. Revenue Commitments:
7.1.1. Minimum Guaranteed Revenue: TNSI has committed to provide
GFOL no less than $5,400,000 in revenue arising from the
purchase of and payment for the GFOL Services as described in
Section 1, during the first two years of the Term (the
"Minimum Guaranteed Revenue"), subject to (a) the termination
provisions of Section 12.2 below, (b) the credits toward
Qualifying Revenue described in Section 7.1.3 below, and (c)
the right of TNS Operations to set off against the Minimum
Guaranteed Revenue or any monthly installment thereof any
monies owed by GFOL to TNS Operations under the Asset
Agreement. The Minimum Guaranteed Revenue shall be paid
monthly in advance, subject as set forth in Section 8.1 below.
7.1.2. Pricing. The pricing for the GFOL Services will be the least
of:
(a) the pre-agreed listed pricing as set forth in Schedule
7.1.2, which Schedule will be reviewed and revised by
the parties to their mutual satisfaction every [****]
during the Term;
(b) [****]% less than the best contract pricing offered by
GFOL to any other market research company, strategic
research company, advertising agency or consulting firm
except Custom Research Inc. and Hall & Partners; and
(c) [****]% of the average price offered to TNSI by
competitors of GFOL for a specific study or project, if
TNSI (1) obtains [****] or (if practicable, in view of
the technical requirements of the study or project)
[****] competitive bids from such competitors each of
which competitors meets the performance requirements of
Subsections 2.2.1(b)(i) and (ii) above and (2) discloses
those competitive prices to GFOL;
provided that Subsection 7.1.2(a) above will not pertain to
the development or maintenance of TNSI Proprietary Panels, the
pricing for which will be negotiated in good faith by the
parties ad hoc, subject to the provisions of Subsections
7.1.2(b) and (c) above.
7.1.3. Qualifying Revenue: TNSI shall receive credit against its
quarterly Minimum Guaranteed Revenue obligation for GFOL
Services performed by GFOL within the quarter, as determined
on a completed Work Order basis, or completed milestone basis
(when that accounting convention pertains), which performance
is accepted by TNSI, subject to the provisions of Section
7.1.4, and further subject as follows. Revenue qualifying for
such credit ("Qualifying Revenue") shall not include amounts
paid by TNSI as incentives for survey respondents. Qualifying
Revenue shall include, without limitation, (a) fees for GFOL
Services purchased from GFOL to fulfill TNSI's obligations to
perform Assumed Contracts under and as defined in the Asset
Agreement, (b) [****]% of the price set forth in all Work
Orders that gave rise to Improper Rejections, (c) the price of
any Defective Project that TNSI cancels pursuant to Subsection
2.2.4(b)(1) above, (d) the fees
12
paid for services actually rendered by GFOL pursuant to Work
Orders accepted by GFOL, Work Orders that gave rise to
Conditional Acceptances by GFOL, and stopped work as described
in Section 8.3 below, and (e) payments on account of Technical
Difficulties pursuant to Section 2.1.4.
7.1.4. Quarterly Roll Forward and reconciliation: It is the
intention of the parties that in the first five (5) quarters
of this Agreement GFOL receive Qualifying Revenue of no less
than $[****]. It is also the intention of the parties that
despite the obligation for TNSI to make minimum monthly
payments, that the variations in demand for research data
experienced by TNSI be accommodated. If, at the end of the
second quarter of this Agreement, Qualifying Revenue is in
excess of the quarterly Minimum Guaranteed Revenue ($[****])
then TNSI shall pay such excess to GFOL in cash (except to the
extent that such excess is related to Qualifying Revenue
defined in Subsections 7.1.3(b) and (c)) together with the
first Monthly Prepayment of the third quarter's Minimum
Guaranteed Revenue. The entire amount of such excess shall be
known as a "Positive Roll Forward Amount". In the event that
the Qualifying Revenue received by GFOL during the second
quarter of this Agreement is less than the quarterly Minimum
Guaranteed Revenue ($[****]) that amount (a "Negative Roll
Forward Amount") may be Rolled Forward into the next
succeeding three quarters of the Agreement, provided that the
maximum Negative Roll Forward Amount that may exist at the end
of any quarter during the first five (5) quarters of the
Agreement is $[****]. Negative Roll Forward Amounts may be
used in the first five (5) quarters of this Agreement to
defray TNSI's obligation to pay Positive Roll Forward Amounts.
At the end of each of the third, fourth and fifth quarters of
this Agreement, the parties will reconcile Negative and
Positive Roll Forward Amounts so that if the cumulative cash
received by GFOL from the inception of this Agreement (the
"Cumulative Period"), plus Qualifying Revenue as defined in
Subsections 7.1.3(b) and (c) in the Cumulative Period, is in
excess of the Qualifying Revenue for that Cumulative Period
and the Qualifying Revenue exceeds the Minimum Guaranteed
Revenue and is in excess of the Minimum Guaranteed Revenue for
such Cumulative Period, GFOL will refund such amount to TNSI
within [****] of the end of the quarter. If the cumulative
cash received by GFOL at the end of the Cumulative Period
(plus Qualifying Revenue as defined in Subsections 7.1.3(b)
and(c)) is in excess of the cumulative Minimum Guaranteed
Revenue, but the cumulative Minimum Guaranteed Revenue has not
been achieved, GFOL will reimburse TNSI for that amount of the
cumulative cash received (plus Qualifying Revenue as defined
in Subsections 7.1.3(b) and (c)) in excess of the cumulative
Minimum Guaranteed Revenue amount. The intent of the preceding
mechanism is to reconcile any Positive Roll Forward Amounts
paid to GFOL above the cumulative Minimum Guaranteed Revenue
amount to the cumulative Qualifying Revenue (including
Qualifying Revenue as defined in Subsections 7.1.3(b) and (c))
in excess of the cumulative Minimum Guaranteed Revenue, and to
refund any over paid amounts above the Minimum Guaranteed
Revenue amount. If at the end of the fifth quarter and after
completion of the foregoing reconciliation there are Negative
Roll Forward Amounts of $[****] or less, TNSI will be entitled
to apply these amounts in three equal installments to any GFOL
Services (including fees pursuant to Section 2.1.4) purchased
in
13
the sixth, seventh and eighth quarters above the Guaranteed
Minimum Revenue amount (reduced for Qualifying Revenue
pursuant to Subsections 7.1.3(b) and (c)). All Negative Roll
Forward Amounts in excess of $[****] at the end of the fifth
quarter will be forfeited. Similarly, at the end of the first
two years of this Agreement TNSI will forfeit all amounts paid
as Guaranteed Minimum Revenue to the extent that such payments
exceeded Qualified Revenue. TNSI's ability to Roll Forward any
amount will not relieve it of its obligation to make the
Minimum Revenue payment each month in advance.
7.1.5. Reporting. Within [****] after the end of each month, GFOL
will deliver to TNSI a report that details cumulative cash
received, cumulative Minimum Guaranteed Revenue and cumulative
Qualifying Revenue. Cumulative Qualifying Revenue will detail
on a month-to-date and contract-inception-to-date basis each
Work Order performed by GFOL for TNSI and the fee associated
with that Work Order. Within [****] after the end of each
contract quarter, TNSI will provide GFOL a detailed report of
all Qualifying Revenue claimed under Subsections 7.1.3 (b) and
(c), including the Improper Rejections and Defective Projects
to which such Qualifying Revenue relates, and in the case of
Improper Rejections a certification by TNSI's manager of its
relationship with GFOL (a) as to the identity of the
alternative contractor and (b) that the work order that was
performed by that alternative contractor (1) was substantially
identical to the Work Order submitted by TNSI to GFOL that
gave rise to the Improper Rejection, and (2) was performed at
a price no greater than [****]% of that Work Order. The
certification must be accompanied by copies of the Work Orders
and bids obtained from the alternative contractor for each
Improper Rejection, with names and logos of the alternative
contractors redacted, and all subject to any confidentiality
obligations owed by TNSI to the alternative contractors.
8. Payment Terms/Stopped Work:
8.1 Monthly Pre-Payments: TNSI shall pre-pay its Minimum Guaranteed
Revenue amount for each month of the first two years of the
Agreement, between the first and fifth days (inclusive) of each
calendar month, in the amount of $200,000 per month in the first
year and $300,000 per month in the second year; provided that
because the parties anticipate that TNSI's clients' demand for the
GFOL Services will take several months to develop and mature from
and after the execution of this Agreement, no payment will be due
from TNSI to GFOL for GFOL Services during or with respect to the
first [****] of the Term; and provided further that on the first day
of the [****] month of the Term TNSI will pay for any GFOL Services
used by TNSI in the first [****] months of the Term in excess of
$[****], and any excess will be considered Qualify Revenue as well
as a Positive Roll Forward Amount.
8.2. Other Payments. To the extent TNSI orders GFOL Services in excess of
Minimum Guaranteed Revenue amounts during the sixth, seventh and
eighth quarter net of any Negative Roll Forward amount to which TNSI
is entitled during those quarters, any excess amounts due for GFOL
Services will be payable by TNSI quarterly with the first payment
for the following
14
quarter. After the first two years of the Term, the timing of TNSI's
payments for GFOL Services will be no less favorable than GFOL's
standard commercial terms.
8.3 Stopped Work: In the event TNSI cancels any Work Orders, TNSI will
compensate GFOL for its panel fees or other sample fees, to the
extent of GFOL's performance of those Work Orders, such compensation
to be reasonably negotiated at the time by the parties, giving
consideration to such factors as incidence, response rates, and
number of respondents. TNSI agrees that its right to stop or cancel
work does not relieve it from the obligation to provide the Minimum
Guaranteed Revenue.
9. Exclusive Alliance.
9.1 Purpose and Nature of Alliance. The parties acknowledge that (a) a
principal purpose of this Agreement is to grant TNSI certain
exclusive relationships and entitlements relative to GFOL's
business, so as to cause the parties to develop and promote TNSI's
online market research business, (b) the parties have entered into
the Asset Agreement in anticipation of and in reliance on those
exclusive relationships and entitlements, as the same are set forth
in this Section 9 and elsewhere in this Agreement, (c) TNSI will be
investing in educating the marketplace about the proposed growth of
TNSI's online market research business, and (d) GFOL desires to help
TNSI protect that investment. Unless otherwise stated herein, all of
the provisions set forth below in this Section 9 will endure
throughout the Initial Term of this Agreement and any Renewal Terms
(as those terms are hereinafter defined).
9.2 Non-Competition; Referrals.
(a) GFOL will be free to offer, sell and perform the following
market research services and create, offer, sell and deliver
the following products ("Permitted Transactions"):
(1) Any sales to other market research companies, and sales
to those strategic research companies that are listed in
Schedule 9.2(a)(1), which list the parties may by mutual
agreement (such agreement not to be unreasonably
withheld) modify from time to time after the execution
hereof. Such sales may include, but are not limited to,
assistance with study and questionnaire design,
questionnaire programming, sample provision, survey
hosting, online qualitative research, proprietary tools
such as QuickTake, tabulation and coding, proprietary
panel development, and syndicated study development.
(2) Sales of sample and/or of programming or hosting
services to advertising agencies for the benefit of the
agencies' clients, but not for the direct benefit of
those agencies with regard to studies of or for their
own respective enterprises or industry.
15
(3) Sales of sample and/or of programming or hosting
services to consulting firms for the benefit of those
firms' clients, but not for the direct benefit of those
firms with regard to studies of or for their own
respective enterprises or industry, and not to Xxxxxx
Xxxxxxxx, Accenture or KPMG for any purpose whatever.
(4) Sales to End-Users of the services and products (i.e.,
companies other than market research companies,
advertising agencies and consulting companies, which are
purchasing the services and products for their own
direct benefit with regard to studies of or for their
own respective enterprises or industries ("End-Users")),
provided that each such sale is performed through or
jointly with a software or technology company (including
a technology integration company or consultant) that is
selling or providing software or technology services or
products that will be integrated with, added directly
onto, or placed directly within GFOL's products or
services which are the subject of the pertinent GFOL
transaction. This exemption shall also apply should GFOL
acquire or be acquired by (through any Sale Transaction,
as defined in Section 11.1 below) a software or
technology company with whose products or services the
GFOL products and services are integrated, subject to
the provisions of Section 11 below. The exemption will
also apply to GFOL's sales of any technology product or
service that is not directly related to the provision of
market research services, such as CRM or marketing
solutions.
(5) Sales of custom quantitative market research services to
[****], to the extent required of GFOL pursuant to a
certain Sale and Purchase Agreement and Escrow Rider
Agreement between that person and GFOL dated December
27, 1999.
Except for the Permitted Transactions, GFOL and its officers
and employees (while employed by GFOL) will not perform or
sell any market research services or products (including
without limitation study design, questionnaire design,
questionnaire programming, sample provision, survey hosting,
online qualitative research, proprietary tools such as
QuickTake, tabulation and coding, analysis, report
preparation, proprietary panel development, and syndicated
study development).
(b) GFOL and its officers will not acquire or hold any ownership
interest in any company that performs or sells any market
research services or products directly for or to End-Users,
except for up to [****]% of the equity of a company whose
securities are traded publicly on a stock exchange or through
a national securities listing service. This restriction shall
not apply in the event of a change in control of GFOL, subject
to the provisions of Section 11 below.
16
(c) GFOL will not promote any other market research company, other
than by publicizing GFOL's commercial arrangements for selling
products and services to such company, and except for abiding
by GFOL's contract with CRI dated October 31, 2001 pertaining
to the [****] Account. Nothing contained herein will be deemed
to preclude other market research companies, data providers or
software or technology companies from advertising or marketing
that their products or services are built with, founded upon
or incorporate GFOL products and services. Nothing contained
herein will prevent GFOL from providing technical sales
support with respect to GFOL Services to market research
firms, provided that GFOL receives no extra revenue
participation or profit participation relative to the
pertinent sales in exchange for providing such technical
support. Nothing in this Agreement will prevent GFOL from
providing technical sales support to companies with which GFOL
has developed syndicated research products, regardless of the
manner in which GFOL is compensated.
(d) Except for Permitted Transactions with End Users, GFOL will
refer all market research business for End-Users, all market
research opportunities for or with End-Users of which GFOL
learns (other than market research opportunities for End-Users
of which it learns solely by virtue of being engaged in
Permitted Transactions), and all market research inquiries
from End-Users which GFOL receives, exclusively to TNSI, and
to no other market research company, anywhere in the world.
GFOL will also refer all advertising agencies, consulting
firms and software or technology companies with which it deals
to TNSI, as GFOL's preferred custom market research partner,
in the case of any market research services (1) for the direct
benefit of those entities with regard to studies of or for
their own respective enterprises or industry, and (2) for the
entities' End-User clients that are not Permitted
Transactions. GFOL will also use commercially reasonable
efforts to refer to TNSI any market research work that a
strategic research company listed in Schedule 9.2(a)(1)
considers with GFOL but that GFOL can not or chooses not to
perform. ------------------ Notwithstanding anything else
contained in this Subsection (d), however, GFOL will not refer
market research business from [****] to TNSI and will not
advise TNSI of any [****] market research opportunities of
which it learns; but TNSI will nevertheless be free to solicit
market research business from and sell and perform market
research services and products for and to [****], and to build
proprietary panels for [****], all without restriction; and in
connection with such [****] projects TNSI may purchase GFOL
Services from GFOL, and GFOL will sell GFOL Services to TNSI,
pursuant to the other terms of this Agreement.
(e) The restrictions imposed by this Section 9 shall expire on the
occurrence of:
(i) TNSI's failure to provide GFOL $300,000 of Qualifying
Revenue in any calendar quarter after the 2 year
anniversary of this Agreement;
(ii) the termination of this Agreement for any reason.
17
9.3 TNSI's Key Clients. On the date hereof, and on the anniversary date
hereof during each year of the Term, TNSI will identify to GFOL any
three of TNSI's key clients (the "Key Clients"). During the contract
year beginning on each such date, GFOL will not knowingly sell GFOL
Services to any other entity (including without limitation any
market research company, strategic research company, advertising
agency, consulting firm, or software or technology company) on
projects as to which those Key Clients are End-Users. For the first
contract year of this Agreement, Key Clients shall be IBM, UPS and
Chase. In order for TNSI to designate a client as a Key Client in
any subsequent contract year of this Agreement, that client must be:
(a) an End-User (and not a market research company), (b) a company
with which TNSI has a substantial business relationship and from
which it has received substantial revenue in the previous 12 months,
(c) in the case of a client that is designated a "Fortune 500
Company" (or the most similar designation should the Fortune 500
designation no longer exist at the time a Key Client is chosen) ,
limited to the division, operating unit, business unit within the
client with which TNSI has a substantial business relationship and
from which it has received substantial revenue in the previous 12
months, (d) not an End-User in Permitted Transactions described in
Subsections 9.2(a)(2), (3) or (4) above, which, within the previous
12 months, as demonstrated by GFOL to TNSI with reasonable evidence,
is an End User client of a market research company (1) for which
market research company GFOL rendered $[****] of GFOL Services in
the previous year or will render in the current year on an
annualized rate based on the last two quarters' sales performance
and (2) for which End User client GFOL rendered $[****] worth of
GFOL Services during that period, and (e) not Xxxxxx Xxxxxxxx,
Accenture or KPMG.
9.4 Internet Link. GFOL will: (a) prominently place TNSI's reasonable
choice of logo, name, and, to the extent of TNSI's lawful right to
do so (which lawful right GFOL will not contest), branding as
"Greenfield Online Custom Research" on GFOL's World Wide Web home
page and such other places within GFOL's Web site as TNSI may
reasonably request; (b) if and when GFOL is not branding TNSI's
reasonably designated logo as provided in clause (a) above, will
identify TNSI's reasonably designated business name and unit in all
such locations as GFOL's "Custom Research Client Referral Partner";
and (c) will enable readers to click from each of those spots by
hyperlink to a TNSI Web site designated by TNSI to GFOL, subject to
GFOL's prior approval of that Web site as to content and
functionality, which consent will not be unreasonably withheld or
delayed. The initial placement of that copy and those links will be
completed no later than one business day after the execution of this
Agreement.
9.5 Publication of Alliance. TNSI may, to the extent of TNSI's lawful
right to do so (which lawful right GFOL will not contest), freely
publicize the facts that (a) TNSI (or a unit within TNSI or the
Xxxxxx Xxxxxx Sofres Group) has acquired GFOL's custom market
research business and (b) TNSI (or a unit within TNSI) is GFOL's
"Custom Research Client Referral Partner"
18
and "Greenfield Online Custom Research." Without limiting the
generality of the foregoing, to the extent of TNSI's lawful right to
do so, TNSI may freely publicize such statements in its collateral
literature and Web sites. Wherever TNSI's Web site refers to TNSI
(or a unit within TNSI) as "Greenfield Online Custom Research" or
GFOL's "Custom Research Client Referral Partner," TNSI will provide
a hyperlink to GFOL's Web site. GFOL will not initiate any cause of
action to contest any such statements as an infringement of GFOL's
trademarks or trade names, so long as such statements are factual.
Nothing herein will be construed as limiting GFOL's ability to
render lawfully required evidence, testimonial or otherwise in any
action initiated by others to contest TNSI's use of these trademarks
and tradenames. GFOL will not identify any other person or entity as
either "Greenfield Online Custom Research" or as GFOL's "Custom
Research Client Referral Partner," or any confusingly similar
designation, and will not grant any person or entity other than TNSI
the right to do so. In GFOL's Web site and all collateral material,
(x) TNSI (or its designated name for its online market research
business unit) will be placed at the top of all listings of GFOL's
market research partners (or similar listings of market research
companies with which GFOL does business), with a link to TNSI's
designated Web site, and (b) GFOL's Web site and all printed
collateral materials will eliminate any content suggesting that GFOL
itself provides services direct to End Users.
9.6 Financial Viability; No Conflicts. GFOL represents and warrants to
TNSI that to the best of its knowledge and belief as of the date of
this Agreement, GFOL believes and intends that it can and will have
the financial and operational capability to perform this Agreement
for the Term, and that except as disclosed in Section 5.17 of the
Asset Agreement, there is no future circumstance that could cause
GFOL to cease having that capability. GFOL also represents and
warrants that its obligations set forth in this Agreement (including
without limitation those contained in Sections 7.1.2, 9 and 11
hereof) will not conflict with or violate the terms of any other
contract to which GFOL is bound. During the Term, GFOL will provide
TNSI with GFOL's quarterly unaudited balance sheet and income
statements, and its annual audited balance sheet and income
statements. TNSI will treat those items as GFOL's proprietary
confidential information. "GFOL's best knowledge and belief" shall
mean the actual knowledge and belief as of the date of this
Agreement of Xxxx X. Xxxxxx, Xxxxxx X. Xxxx, Xxxxxxxx X. Xxxxxx,
Xxxx X. Xxxxx and Xxxxx Xxxx. None of the aforementioned individuals
shall have any personal liability or obligation to any other party,
including, but not limited to TNSI, arising out of a breach of this
representation and warranty.
10. Non-Hiring of Employees.
Subject to the provisions of Section 7.15 of the Asset Agreement
with respect to GFOL's employee Xxx Xxxxx, GFOL and TNSI each agree,
during the Term, not to hire one another's employees and individual
contractors, unless the parties agree otherwise. In addition, if
GFOL consummates a Sale Transaction as defined in Section 11.1 below
to a
19
competitor of TNSI as described in Section 11.6 below, and if this
Agreement terminates as provided in Section 11.6 below, GFOL, its
acquiror and their successors and assigns will abide by the covenant
set forth in the previous sentence for two years after the Term ends
only with respect to the former employees of GFOL whom TNSI has
hired pursuant to the terms of the Asset Agreement.
11. Termination and Continuity of GFOL's Business. During the Term:
11.1 Termination of Operations. Should GFOL take any material steps
toward terminating all or a material portion of its Internet panel
business (as opposed to selling or otherwise transferring those
operations or its assets or business), GFOL will provide TNSI with
earliest reasonable notice of the termination or possible
termination in advance of its effective date, so as to ensure TNSI
the maximum reasonable time to plan for business contingencies, even
if the decision to terminate has not yet been finalized. Following
such notice, at TNSI's election, GFOL will negotiate with TNSI in
good faith to enable TNSI (or an affiliated company) to purchase all
or substantially all of GFOL's business, whether through an asset
sale, stock sale, merger or otherwise (a "Sale Transaction"). Should
GFOL indicate its intention to terminate operations, any Minimum
Guaranteed Revenue obligations due GFOL by TNSI will terminate
immediately.
11.2 Bankruptcy. Should GFOL take any material steps toward filing for
liquidation or reorganization under any pertinent bankruptcy or
insolvency statute, or making a general arrangement with respect to
its creditors, GFOL will provide TNSI with earliest reasonable
notice of the possible action in advance of its effective date, so
as to ensure TNSI the maximum reasonable time to plan for business
contingencies, even if the decision to take such action has not yet
been finalized. Should any creditor or group of creditors who alone
or together have standing to place GFOL in involuntary bankruptcy
advance a credible threat of filing an involuntary bankruptcy
petition against GFOL, and should GFOL not promptly eliminate that
threat by paying, or by contractually arranging for the payment of,
the pertinent obligations owed to such persons, GFOL will promptly
notify TNSI of that threat, so as to ensure TNSI the maximum
reasonable time to plan for business contingencies.
11.3 Determination to Sell GFOL's Business. Should (a) GFOL's board of
directors by resolution determine to place its business on the
market for acquisition in any Sale Transaction, or (b) GFOL take
material steps toward the commencement of such a marketing effort or
begin negotiations for such a transaction with any other party, GFOL
will within five business days notify TNSI of that resolution or
action, and at TNSI's election will begin to negotiate with TNSI in
good faith to enter into a Sale Transaction with TNSI or an
affiliated company, and will continue such negotiation with TNSI or
that affiliated company for so long as that negotiation is
proceeding in good faith but with no obligation to continue it for
more than [****], before consummating a Sale Transaction with any
other person.
11.4 Receipt of Offer to Purchase GFOL's Business. Should GFOL receive a
bona fide written offer from a third party to purchase GFOL's
business in
20
any Sale Transaction, GFOL will within five business days notify
TNSI of the existence (but not the terms of) that offer, and will
inform TNSI whether the potential acquiror is a competitor of TNSI.
TNSI or an affiliated company will have 30 days after receiving that
notice in which to submit its own offer of acquisition.
11.5 Acquisition of GFOL by Non-Competitor. Should GFOL be acquired in
any Sale Transaction by a company other than a company as to which
market research is a material portion of the business of that
company or of any of its affiliates, this Agreement will survive
that acquisition.
11.6 Acquisition of GFOL by a Competitor. Should GFOL be acquired in any
Sale Transaction by a company as to which market research is a
material portion of the business of that company or of any of its
affiliates, at TNSI's election this Agreement will either (a)
terminate immediately upon the closing of the Sale Transaction, (b)
survive that Sale Transaction, or (c) remain in force for up to six
months (at TNSI's election) after the closing of the Sale
Transaction if that closing occurs during the first two years of the
Term, or for up to twelve months (at TNSI's election) after the
closing if the closing occurs after the second year of the Term. In
addition, should such a closing occur during the first two years of
the Term, and should TNSI elect to terminate this Agreement during
the first two years of the Term pursuant to the provisions of this
paragraph, GFOL will pay TNSI a sum equal to $[****] multiplied by a
fraction, the numerator of which is the number of months remaining
in that two-year period from the effective date of the termination
of this Agreement, and the denominator of which is 24.
12. Term of Contract and Termination:
12.1. Term. (a) The Term of this Agreement shall be five (5) years (the
"Initial Term"), beginning January 31, 2002 (the "Effective Date").
(b) TNSI may renew this Agreement from year to year for an
indefinite number of additional one-year terms ("Renewal Terms"), on
the identical terms and conditions as provided herein, by delivering
to GFOL, in each instance between 30 and 90 days prior to the
expiration of the then current Term, notice of TNSI's intention to
renew, provided that in each such instance GFOL may deny that
renewal if TNSI will not have provided GFOL with at least [****]
in Qualifying Revenue during the 12 months immediately preceding
that notice.
(c) As used throughout this Agreement, the word "Term" standing
alone shall refer to the then-current Initial Term or Renewal Term.
12.2. Termination and Notice.
12.2.1. GFOL may terminate this Agreement for TNSI's material breach
hereof. A material breach by TNSI shall occur only if any one of the
following breaches occurs:
21
(a) The failure of TNSI (or any TNSI Affiliate) to timely make any
payments due under Sections 7 and 8 within 10 days after
receiving notice from GFOL of such delinquency more than twice
during any calendar year.
(b) Any breach of Section 10 by TNSI (or any TNSI Affiliate) that
TNSI does not cure within [****] after receiving notice from
GFOL of the breach. In order to cure such breach TNSI must pay
GFOL all reasonable recruiting fees and expenses associated
with sourcing and hiring an appropriate replacement
(c) Material and repeated breaches by TNSI of any of Sections
2.1.3, 2.1.4, 2.1.5, and 2.1.9 which, in the aggregate, cause
GFOL monetary damage for which TNSI does not fully and timely
indemnify GFOL pursuant to Section 17 below.
(d) Material breaches of any of Sections 2.1.6, 2.1.7, 2.1.8, 3, 6
and 14 that TNSI does not cure or desist from within [****]
after receiving notice from GFOL of the breach and for which
TNSI does not fully and timely indemnify GFOL pursuant to
Section 17 below, provided that TNSI may commit only [****]
breaches of the aforementioned Sections in any 12 month
period.
12.2.2. TNSI may terminate the Agreement for (a) GFOL's default of its
performance obligations set forth in Section 2.2 above, or (b)
GFOL's material breach of any other provision hereof upon [****]
written notice specifying the nature of such other breach,
if GFOL does not cure such other breach during such notice period,
or (c) GFOL's material breach of the Asset Agreement which gives
rise to an Established Loss as defined therein and which is not
timely cured pursuant to the provisions of that document or which is
not otherwise readily cured by the payment of monies through the
set-off provisions provided in Section 8.8 thereof, or (d) to the
extent permitted by law, a general assignment by GFOL for the
benefit of creditors, or the filing by or against GFOL of any
proceeding under any insolvency or bankruptcy law, unless in the
case of a proceeding filed against GFOL the same is dismissed within
[****], or the appointment of a trustee or receiver to take
possession of all or substantially all of the assets of GFOL unless
possession is restored to GFOL within [****], or any execution or
other judicially authorized seizure of all or substantially all of
GFOL's assets unless such seizure is discharged within [****].
12.3. Effect of Termination. Upon a termination as provided in Section
12.2.1 or 12.2.2, all rights and duties of the parties toward each
other shall cease except those which by their terms are clearly
intended to survive such termination, provided, that in the event of
a termination by GFOL pursuant to Section 12.2.1, TNSI shall be
obligated to pay, within [****] days after the effective date
of termination, a Termination Payment calculated by subtracting the
total amount of all revenue received by GFOL from TNSI for the sale
of the GFOL Services through the effective date of termination or
cancellation (including without limitation all Qualifying Revenue
described in Section 7.1.3 above), from $5,400,000.
22
12.4. Notices. All notices required or permitted under this Agreement
shall be in writing, reference this Agreement and be deemed given
one (1) day after deposit with a commercial overnight carrier for
overnight delivery, with written verification of receipt, or three
(3) days after dispatch via U.S. Certified Mail, return receipt
requested, or upon receipt by facsimile transmission if the sender
has proof of transmission; provided that any notices under Sections
12.2.1 or 12.2.2(b) must be sent by overnight courier or U.S.
Certified Mail. All communications will be sent to the following
addresses:
--------------------------------------------------------------------------------
Greenfield Online, Inc. TNSI
--------------------------------------------------------------------------------
Xxxx Xxxxxx Xxxxx Xxxxxxxx
Greenfield Online, Inc. Xxxxxx Xxxxxx Sofres Intersearch
00 Xxxxx Xxxx Xxxxxxxxxxx
Xxxxxx, XX 00000 000 Xxxxxxx Xxxx
000-000-0000 Xxxxxxx, XX 00000
xxxxxxx@xxxxxxxxxx.xxx 215-4429609
Fax: 000-000-0000
Fax: 000-000-0000 xxxxx.xxxxxxxx@xxxxxxxxxxx.XXXXxxxxx.xxx
--------------------------------------------------------------------------------
With a Copy to: With a Copy to:
--------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx Online, Inc. Vice President Legal
00 Xxxxx Xxxx Xxxxxx Xxxxxx Sofres Intersearch
Xxxxxx, XX 00000 Corporation
T 000-000-0000 000 Xxxxxxx Xxxx,
X 000-000-0000 Xxxxxxx, XX 00000
Xxxxxxx@xxxxxxxxxx.xxx 000-000-0000
Fax: 000-000-0000
xxxx.xxxxxxxxx@xxxxxxxxxxx.XXXXxxxxx.xxx
--------------------------------------------------------------------------------
13. Jointly Developed Panels.
Unless otherwise agreed, GFOL will hold jointly developed panels solely
for TNSI's use.
14. Confidentiality:
Each party agrees to keep confidential and (except as provided below) not
to disclose to any other person any confidential information of the other
party, both during the Term and thereafter. Confidential information will
include, without limitation, (a) the terms of this Agreement and (b) the
confidential information described in Sections 4 and 9.6 above. A party's
confidential information will exclude information that is or comes to be
in the public domain, is acquired by the other party from a third party
without apparent restriction, or is already possessed or is hereafter
23
independently developed by the other party. Each party will disclose the
other's confidential information to its employees, professional advisors
and affiliates only on a need-to-know basis, and will take the same
measures to secure the other's confidential information as it takes to
secure its own confidential information of similar type and importance.
Notwithstanding the provisions of this Section 14, a party may disclose
the other party's confidential information pursuant to a judicial or other
governmental order, upon prompt notice to the other party of the
requirements of that order.
15. NO GUARANTEES. There are no guarantees whatsoever made by either party as
to the results of its efforts in connection with marketing the services of
each other or in connection with any potential revenues which may be
received by TNSI or TNS Operations in connection with the latter's
acquisition of GFOL's Custom Business under the Asset Agreement. There are
no warranties, promises, or statements made by either party except as
specifically stated herein, or in separate Work Orders, with respect to
any matter. Neither party has made any affirmation of fact or promise
relating to the services or duties that are the subject of this Agreement
other than as stated herein, and the parties acknowledge that they have
relied on no warranties, promises, or statements other than those
expressly set forth in this Agreement. The parties acknowledge that any
estimates, projections, or forecasts provided to either of them by or on
behalf of the other party are only estimates and are not representations
that such estimates will be realized.
16. WARRANTY AND DISCLAIMER. Each party (a "Warranting Party") warrants to the
other that the use by the other of any software, data, methodologies,
trademarks or other intellectual property furnished by the Warranting
Party will not infringe on any third party's intellectual property rights,
or violate the terms of any license or covenant to which the Warrantor is
bound. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 16 AND ELSEWHERE IN
THIS AGREEMENT, OR IN SEPARATE WORK ORDERS AS DESCRIBED IN SECTION 1, THE
PARTIES MAKE NO WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIM ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
17. Indemnification.
17.1 General Indemnification by GFOL.
(a) Subject to the provisions of Section 2.2.4 above, GFOL will
protect, defend, indemnify and hold harmless TNSI, its
officers, directors, employees, agents and affiliates and
their respective successors and assigns, from, against and in
respect of any and all losses, costs, damages, charges or
expenses (including, without limitation, reasonable attorney's
fees, costs, and expenses, and the costs of investigation)
(the "Losses", and each a "Loss"), subject to the limitations
set forth in Subsection (b) below resulting from (1) any
misrepresentation, breach of any warranty or non-fulfillment
of any covenant or agreement on the part of GFOL contained in
this Agreement or any Schedules hereto, and (2) any and all
litigation, actual or threatened,
24
relating to any alleged or actual act or omission of GFOL
occurring during or after the Term.
(b) With regard to claims for Losses asserted by TNSI pursuant to
this Section 17.1 and Section 8.2(b) of the Asset Purchase
Agreement, in no event shall TNSI's right to be indemnified
exceed $2,000,000. It is the intention of the parties that
this dollar limit is and will be the total aggregate dollar
limit for indemnification by GFOL set forth in this Section 17
and Section 8.2(b) of the Asset Agreement.
17.2 General Indemnification by TNSI.
(a) TNSI agrees to protect, defend, indemnify and hold harmless
GFOL, its officers, directors, employees, agents and
affiliates and their respective heirs, personal
representatives, successors and assigns, from, against and in
respect of any and all losses, costs, damages, charges or
expenses (including, without limitation, reasonable attorney's
fees, costs, and expenses, and the costs of investigation)
resulting from (a) any misrepresentation, breach of any
warranty or non-fulfillment of any covenant or agreement on
the part of TNSI contained in this Agreement or any Schedules
hereto, and (b) any and all litigation, actual or threatened,
relating to any alleged or actual act or omission of TNSI or
its affiliates occurring during or after the Term.
(b) With regard to claims for Losses asserted by GFOL pursuant to
this Section 17.2, in no event shall GFOL's right to be
indemnified exceed $2,000,000.
17.3 Claims. GFOL and TNSI shall, in a timely manner, provide each other
notice of (a) all third party actions, suits, proceedings, claims,
demands and assessments subject to the indemnification provisions of
this Section 17 (collectively, "Third Party Claims") brought at any
time following the date hereof, and (b) all other claims or demands
for indemnification pursuant to the provisions of this Section 17.
17.4 Third Party Claims. The party against whom a Third Party Claim is
brought shall make available to the indemnifying party (at the cost
of the indemnifying party) all relevant information material to the
defense of such claim. The indemnifying party shall have the right
to control the defense of all Third Party Claims with counsel of its
choice. The indemnified party shall have the right to elect to join
in the defense of any Third Party Claim at its sole expense, and no
claim shall be settled or compromised without the consent of the
indemnified party, which consent shall not be unreasonably withheld
or delayed, unless such settlement or compromise releases the
indemnified party from any liability in respect of such claim or
results in the dismissal with prejudice of such claim such that no
further action could be brought against the indemnified party with
respect thereto, in which case the consent of the indemnifying party
is not required.
17.5 Other Claims. The party who asserts the claim for indemnification
other than a Third-Party Claim shall provide in the notice to the
indemnifying party the nature and the amount of the losses asserted.
If the indemnifying party, within a period of 30 days after the
giving of the indemnified party's notice, shall not give written
notice to the indemnified party announcing its intention to contest
such assertion of the indemnified party, such assertion of
25
the indemnified party shall be deemed accepted in the amount of the
loss, and the loss shall be deemed established. If however, the
indemnifying party contests the assertion of the loss, within the
30-day period, the indemnified party shall have the right to bring
suit to resolve the contested assertion. The indemnified party and
the indemnifying party may agree in writing, at any time, as to the
existence and the amount of the loss, and upon the execution of such
agreement, such loss shall be deemed established.
17.6 Establishment of Losses. A Loss shall be deemed established (an
"Established Loss") (a) in the case of a Third Party Claim, where
the indemnifying party fails to defend or contest such claim in
writing within 30 days after receipt of written notice of such
claim, (b) with respect to a Third Party Claim where such Loss has
been determined and established by a final, binding non-appealable
judgment of a court of competent jurisdiction, (c) with respect to
other claims, where the indemnifying party has not given written
notice of its intention to contest such claim in accordance with the
provisions of Section 17.5, (d) with respect to other claims that
are litigated pursuant to Section 17.5 when such Loss has been
established by a final, binding and non-appealable judgment of a
court of competent jurisdiction, and (e) with respect to other
claims where the parties agree in writing as to the amount of the
Loss as provided in Section 17.5.
17.7 Payments; Cross-Default. Payments of any Loss shall be paid to the
person entitled thereto within 10 business days following the
establishment of an Established Loss. In the event that GFOL is in
default under this Agreement, TNS Operations may declare GFOL to
likewise be in default under Article VIII of the Asset Agreement;
provided that no such declaration of default shall give TNS
Operations any right to the remedy of rescission with respect to the
Asset Agreement. The parties further acknowledge that TNSI may
set-off any obligations owed by GFOL to TNS Operations under Article
VIII of the Asset Agreement or to TNSI under Section 17 of this
Agreement by withholding payments due to GFOL under Sections 7 and 8
of this Agreement; and that despite any such withholding of payments
by TNSI, GFOL shall remain obligated to perform the GFOL Services
for TNSI as though TNSI had not withheld those payments; provided
that those set-offs may not exceed $[****] per month during months
[****] of the Term, $[****] per month during months [****] of the
Term, and subsequently [****]% of monies payable to GFOL by TNSI for
purchases of GFOL Services under the last sentence of Section 8.2
above (up to a maximum of $[****] per month) for the balance of the
Term. The set-offs described in this Section 17.7 are the maximum
set-offs allowed for all Established Losses whether claimed pursuant
to this Agreement or the Asset Agreement. As long as this Agreement
subsists during the Initial Term (but not thereafter), the set-off
rights described in this Section 17.7 will constitute the sole
monetary remedy of TNSI and TNS Operations to recover the first
$[****] of Established Losses under Section 17 of this Agreement and
Article VIII of the Asset Agreement; provided that nothing in this
Section 17.7 will restrict TNSI's or TNS Operations' monetary
remedies as to any Established Losses over $[****]. Each party
waives any other right of set-off which it may have by virtue of
common law, statute or otherwise.
17.8 No Consequential Damages. Notwithstanding anything else contained
within this Agreement, neither party will be liable to the other for
any special, exemplary, punitive or consequential damages, even if
the offending party had been aware of
26
the possibility that such damages could ensue from its actions.
Neither party, however, will be restricted from recovering lost
profits arising out of breaches of Sections 3, 6, 9, 10, 11 and 14
hereof, together with an accounting for any profits earned by the
breaching party in connection with any such breach, notwithstanding
any limitations on remedies contained in Section 17 above.
17.9 TNSI Liability. TNSI hereby guarantees to GFOL the obligations of
any TNSI Affiliate to pay for the GFOL Services that any such TNSI
Affiliate may order; and TNSI will be liable to GFOL for any breach
of this Agreement caused by any TNSI Affiliate. No TNSI Affiliate
will be directly bound by or liable to GFOL under this Agreement.
Notwithstanding anything else contained in this Agreement, the
rights and obligations of TNSI and the TNSI Affiliates with respect
to purchasing GFOL Services or other sample hereunder will not bind
or be binding upon any TNSI units or individuals that are managed by
TNS Group affiliates other than TNSI.
18. Injunctive Relief. The parties agree that any breach of their respective
obligations under Sections 4, 5, 9, 10, 11 and 14 may cause irreparable
harm to the other party. Each party agrees that money damages would not be
a sufficient remedy for a breach of these Sections of the Agreement and
that in addition to any other remedies available at law, the injured party
shall be entitled to specific performance and injunctive or other
equitable relief, without the necessity for the posting of any bond or
security, as a remedy for any such breach.
19. Prevailing Party. If any legal action or other proceeding is brought in
order to enforce the terms of this Agreement or collect monies due
hereunder the prevailing party shall be entitled to recover its reasonable
attorneys' fees and other costs incurred in bringing such action or
proceeding, in addition to any other relief to which such party may be
entitled.
20. Assignment and Transfer. This Agreement will be binding upon and will
inure to the benefit of the parties and respective successors and
permitted assigns. The parties shall not assign or transfer this Agreement
without the express prior written consent of the other, which consent
shall not be unreasonably withheld, provided that GFOL and TNSI may assign
this Agreement to any successor corporation by merger, acquisition, or
otherwise, subject as provided in Section 11 above. Any permitted assignee
of this Agreement must assume all of the assignor's liabilities hereunder
as a condition of the assignment, or the assignment will be void.
21. Force Majeure: Any delay or failure of either party to perform its
obligations under this Agreement shall be excused if and to the extent
that it is caused by an event or occurrence beyond that party's reasonable
control or the reasonable control of any supplier on which that party is
dependent in fulfilling its obligations under this Agreement. A "force
majeure" event may include, but is not limited to, earthquake, fire, storm
or other natural disaster, act of God, civil disturbance war, malicious
acts of computer sabotage,, and telecommunications or internet
infrastructure failure or impairment outside of the impaired party's own
premises and equipment.
22.. Governing Law; Choice of Venue. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York without
reference to its principles of conflicts of law. All actions arising out
of this Agreement shall be brought in Federal or State courts within New
York County, New York.
27
IN WITNESS WHEREOF, the parties have caused duplicate originals of this
Agreement to be executed on the date(s) set forth below:
XXXXXX XXXXXX SOFRES INTERSEARCH GREENFIELD ONLINE, INC.
CORPORATION
By: ____________________________ By: ____________________________
Xxxx Xxxxxx
Its______________________ President & CEO
Duly Authorized
Date: _______________ Date: _______________
28
FIRST AMENDMENT TO ALLIANCE, LICENSE AND SUPPLY AGREEMENT
January 31, 2003
This First Amendment amends that certain Alliance, License and Supply
Agreement (the "Agreement"), dated January 31, 2002, by and between GREENFIELD
ONLINE, INC., a Delaware corporation ("GFOL") and XXXXXX XXXXXX SOFRES
INTERSEARCH CORPORATION, a Pennsylvania corporation ("TNSI"). All capitalized
terms used herein will have the same meanings as are set forth in the main body
of the Agreement.
1. SECTION 7 OF THE AGREEMENT IS AMENDED TO READ AS FOLLOWS:
7. Fees.
7.1 Revenue Commitments:
7.1.1 Minimum Guaranteed Revenue: TNSI has committed to provide GFOL
no less than $5,400,000 in revenue arising from the purchase
of and payment for the GFOL Services as described in Section
1, during the first thirty one months of the Term (the
"Minimum Guaranteed Revenue")(the thirty one months is
referred to as the "Minimum Guarantee Period"), subject to (a)
the termination provisions of Section 12.2 below, (b) the
credits toward Qualifying Revenue described in Section 7.1.3
below, (c) the right of TNS Operations to set off against the
Minimum Guaranteed Revenue or any monthly installment thereof
any monies owed by GFOL to TNS Operations under the Asset
Agreement and (d) the shortening of the Minimum Guarantee
Period as provided for in Section 12.1. The Minimum Guaranteed
Revenue shall be paid monthly in advance, subject as set forth
in Section 8.1 below.
7.1.2 Pricing. The pricing for the GFOL Services will be the least
of:
(a) the pre-agreed listed pricing as set forth in Schedule
7.1.2, which Schedule will be reviewed and revised by
the parties to their mutual satisfaction every six
months during the Term;
(B) [****]% less than the best contract pricing offered by
GFOL to any other market research company, strategic
research company, advertising agency or consulting firm
except Custom Research Inc. and Hall & Partners; and
(C) [****]% of the average price offered to TNSI by
competitors of GFOL for a specific study or project, if
TNSI (1) obtains two or (if practicable, in view of the
technical requirements of the study or project) three
competitive bids from such competitors each of which
competitors meets the performance requirements of
Subsections 2.2.1(b)(i) and (ii) above and (2) discloses
those competitive prices to GFOL;
7.1.3 provided that Subsection 7.1.2(a) above will not pertain to
the development or maintenance of TNSI Proprietary Panels, the
pricing for which will be negotiated in good faith by the
parties ad hoc, subject to the provisions of Subsections
7.1.2(b) and (c) above. Qualifying Revenue:
29
TNSI shall receive credit against its quarterly Minimum
Guaranteed Revenue obligation for GFOL Services performed by
GFOL within the quarter, as determined on a completed Work
Order basis, or completed milestone basis (when that
accounting convention pertains), which performance is accepted
by TNSI, subject to the provisions of Section 7.1.4, and
further subject as follows. Revenue qualifying for such credit
("Qualifying Revenue") shall not include amounts paid by TNSI
as incentives for survey respondents. Qualifying Revenue shall
include, without limitation, (a) fees for GFOL Services
purchased from GFOL to fulfill TNSI's obligations to perform
Assumed Contracts under and as defined in the Asset Agreement,
(b) [****]% of the price set forth in all Work Orders that
gave rise to Improper Rejections, (c) the price of any
Defective Project that TNSI cancels pursuant to Subsection
2.2.4(b)(1) above, (d) the fees paid for services actually
rendered by GFOL pursuant to Work Orders accepted by GFOL,
Work Orders that gave rise to Conditional Acceptances by GFOL,
and stopped work as described in Section 8.3 below, and (e)
payments on account of Technical Difficulties pursuant to
Section 2.1.4.
7.1.4 Quarterly Roll Forward and reconciliation:
(a) ______ During the First 12 months of the Term: It is the
intention of the parties that in the first four (4) quarters
of this Agreement GFOL receive Qualifying Revenue of no less
than $[****]. It is also the intention of the parties that
despite the obligation for TNSI to make minimum monthly
payments, that the variations in demand for research data
experienced by TNSI be accommodated. If, at the end of the
second quarter of this Agreement, Qualifying Revenue is in
excess of the quarterly Minimum Guaranteed Revenue ($[****])
then TNSI shall pay such excess to GFOL in cash (except to the
extent that such excess is related to Qualifying Revenue
defined in Subsections 7.1.3(b) and (c)) together with the
first Monthly Prepayment of the third quarter's Minimum
Guaranteed Revenue. The entire amount of such excess shall be
known as a "Positive Roll Forward Amount". In the event that
the Qualifying Revenue received by GFOL during the second
quarter of this Agreement is less than the quarterly Minimum
Guaranteed Revenue ($[****]) that amount (a "Negative Roll
Forward Amount") may be Rolled Forward into the next
succeeding two quarters of the Agreement, provided that the
maximum Negative Roll Forward Amount that may exist at the end
of any quarter during the first four (4) quarters of the
Agreement is $[****]. Negative Roll Forward Amounts may be
used in the first four (4) quarters of this Agreement to
defray TNSI's obligation to pay Positive Roll Forward Amounts.
At the end of each of the third and fourth quarters of this
Agreement, the parties will reconcile Negative and Positive
Roll Forward Amounts so that if the cumulative cash received
by GFOL from the inception of this Agreement (the "Cumulative
Period"), plus Qualifying Revenue as defined in Subsections
7.1.3(b) and (c) in the Cumulative Period, is in excess of the
Qualifying Revenue for that Cumulative Period and the
Qualifying Revenue exceeds the Minimum Guaranteed Revenue and
is in excess of the Minimum Guaranteed Revenue for such
Cumulative Period, GFOL will refund such amount to TNSI within
15 days of the end of the quarter. If the cumulative cash
received by GFOL at the end of the Cumulative Period (plus
Qualifying Revenue as defined in Subsections 7.1.3(b) and(c))
is in excess of the cumulative Minimum Guaranteed Revenue, but
the cumulative Minimum Guaranteed Revenue has not been
achieved, GFOL will reimburse TNSI for that amount of the
cumulative cash received (plus Qualifying Revenue as defined
in Subsections
30
7.1.3(b) and (c)) in excess of the cumulative Minimum
Guaranteed Revenue amount. The intent of the preceding
mechanism is to reconcile any Positive Roll Forward Amounts
paid to GFOL above the cumulative Minimum Guaranteed Revenue
amount to the cumulative Qualifying Revenue (including
Qualifying Revenue as defined in Subsections 7.1.3(b) and (c))
in excess of the cumulative Minimum Guaranteed Revenue, and to
refund any over paid amounts above the Minimum Guaranteed
Revenue amount. If at the end of the fourth quarter and after
completion of the foregoing reconciliation there are Negative
Roll Forward Amounts of $[****] or less (the "First Year
Negative Roll Forwards"), TNSI will be entitled to apply these
amounts to any GFOL Services (including fees pursuant to
Section 2.1.4) purchased in the fifth, sixth and seventh
quarters above the Guaranteed Minimum Revenue amount (reduced
for Qualifying Revenue pursuant to Subsections 7.1.3(b) and
(c)) as provided for in Section 7.1.4 (b). All Negative Roll
Forward Amounts in excess of $[****] at the end of the fourth
quarter will be forfeited. All Positive Roll Forward amounts
(except to the extent that such excess is related to
Qualifying Revenue defined in Subsections 7.1.3(b) and (c))
existing at the end of the fourth quarter of the Agreement
will be paid to GFOL together with the first monthly Minimum
Guaranteed Revenue Pre-Payment due for the 5th quarter of the
Agreement.
(b) ______ For the Remainder of the Minimum Guarantee Period:
At the beginning of each month starting with the 5th quarter
of the Agreement ending at the expiration of the Minimum
Guarantee Period, TNSI will pay GFOL the Minimum Guaranteed
Revenue as follows: In the 5th quarter - 13th month -
$125,000; 14th month $150,000; 15th month $175,000; and
$200,000 every month thereafter. All payments will be in
advance as provided for in Section 8.1. At the end of each
month starting with the 5th Quarter and through the
thirty-first month, or the end of the Minimum Guarantee
Period, which ever is sooner, TNSI will pay GFOL all
Qualifying Revenue above the Minimum Guaranteed Revenue
(except to the extent that such excess is related to
Qualifying Revenue defined in Subsections 7.1.3(b) and (c)),
provided that any excess Qualifying Revenue amounts above
$300,000 per month may be offset by one-ninth of the First
Year Negative Roll Forward amount. For example, if during the
first month of the 5th quarter Qualifying Revenue (exclusive
of Qualifying Revenue defined in Subsections 7.1.3(b) and (c))
is $350,000, TNSI will pay GFOL $175,000 together with the
pre-payment of the Minimum Guaranteed Revenue payment for the
second month of the 5th quarter, and TNSI may apply the
remaining $50,000 to the reduction of the First Year Negative
Roll Forward Amount, if any. In the event that at the end of
the fourth quarter of the agreement there is no First Year
Negative Roll Forward, then for the remainder of the Minimum
Guarantee Period, TNSI must pay all Qualifying Revenue between
that month's Minimum Guaranteed Revenue amount and $300,000 at
the end of each month, and all Qualifying Revenue above
$300,000 for each month at the end of each quarter together
with the Minimum Guaranteed Revenue pre-payment due for the
following month.
31
(c) At the end of the 31st month of this Agreement TNSI will
either (i) forfeit all amounts paid as Guaranteed Minimum
Revenue to the extent that such payments exceeded Qualified
Revenue, or (ii) pay all Qualified Revenue in excess of the
Minimum Guaranteed Revenue to the extent not already paid. In
addition, TNSI will not be entitled to any Negative Roll
Forwards or quarterly reconciliations for the remainder of the
Term, if any.
(d) TNSI's ability to Roll Forward any amount as provided for
in this Section 7 will not relieve it of its obligation to
make the Minimum Revenue payment each month in advance.
7.1.5 Reporting. Within [****] after the end of each month, GFOL
will deliver to TNSI a report that details cumulative cash
received, cumulative Minimum Guaranteed Revenue and cumulative
Qualifying Revenue. Cumulative Qualifying Revenue will detail
on a month-to-date and contract-inception-to-date basis each
Work Order performed by GFOL for TNSI and the fee associated
with that Work Order. Within [****] after the end of each
contract quarter, TNSI will provide GFOL a detailed report of
all Qualifying Revenue claimed under Subsections 7.1.3 (b) and
(c), including the Improper Rejections and Defective Projects
to which such Qualifying Revenue relates, and in the case of
Improper Rejections a certification by TNSI's manager of its
relationship with GFOL (a) as to the identity of the
alternative contractor and (b) that the work order that was
performed by that alternative contractor (1) was substantially
identical to the Work Order submitted by TNSI to GFOL that
gave rise to the Improper Rejection, and (2) was performed at
a price no greater than [****]% of that Work Order. The
certification must be accompanied by copies of the Work Orders
and bids obtained from the alternative contractor for each
Improper Rejection, with names and logos of the alternative
contractors redacted, and all subject to any confidentiality
obligations owed by TNSI to the alternative contractors.
2. SECTION 8 IS AMENDED TO READ AS FOLLOWS:
8. Payment Terms/Stopped Work:
8.1 Monthly Pre-Payments: TNSI shall pre-pay a Minimum Guaranteed
Revenue amount for each month of the Minimum Guarantee Period of the
Agreement, between the [****] days (inclusive) of each calendar
month, in the amount of $200,000 per month in the first year and
$125,000 in the 13th month, $150,000 in the 14th month and $175,000
in the 15th month. For the remainder of the Minimum Guarantee Period
the Minimum Guaranteed Revenue amount shall be $200,000 per month.;
provided that because the parties anticipate that TNSI's clients'
demand for the GFOL Services will take several months to develop and
mature from and after the execution of this Agreement, no payment
will be due from TNSI to GFOL for GFOL Services during or with
respect to the first three months of the Term; and provided further
that on the first day of the fourth month of the Term TNSI will pay
for any GFOL Services used by TNSI in the first three months of the
Term in excess of $[****], and any excess will be considered
Qualifying
32
Revenue as well as a Positive Roll Forward Amount. No Minimum
Guarantee Revenue amount will be due after the end of the Minimum
Guarantee Period.
8.2. Other Payments. To the extent TNSI orders GFOL Services in excess of
Minimum Guaranteed Revenue amounts during the 13th through 31st
months of the Term (or through the end of the Minimum Guarantee
Period, whichever is earlier), net of any Negative Roll Forward
amount to which TNSI is entitled during those quarters, any excess
amounts due for GFOL Services, between that month's Minimum
Guaranteed Revenue amount and $[****] will be paid at the end of
each month, and all Qualifying Revenue above $[****] for each month
will be paid at the end of each quarter together with the next
month's Minimum Guaranteed Revenue pre-payment, all as provided for
in Section 7.1.4 above. After the expiration of the Minimum
Guarantee Period, the timing of TNSI's payments for GFOL Services
will be no less favorable than GFOL's standard commercial terms.
8.3 Stopped Work: In the event TNSI cancels any Work Orders, TNSI will
compensate GFOL for its panel fees or other sample fees, to the
extent of GFOL's performance of those Work Orders, such compensation
to be reasonably negotiated at the time by the parties, giving
consideration to such factors as incidence, response rates, and
number of respondents. TNSI agrees that its right to stop or cancel
work does not relieve it from the obligation to provide the Minimum
Guaranteed Revenue.
3. SECTION 9.2 (E)(I) AMENDED TO READ AS FOLLOWS:9.2 (e)(i) TNSI's failure to
provide GFOL with $300,000 of Qualifying Revenue in any calendar quarter after
the expiration of the Minimum Guarantee Period; or
4. SECTION 12.1 IS AMENDED TO READ AS FOLLOWS:
13. Term of Contract and Termination:
13.1. Term.
(a) The Term of this Agreement shall be five (5) years (the "Initial
Term"), beginning January 31, 2002, (the "Effective Date").
(b) TNSI may renew this Agreement from year to year for an
indefinite number of additional one-year terms ("Renewal Terms"), on
the identical terms and conditions as provided herein, by delivering
to GFOL, in each instance between 30 and 90 days prior to the
expiration of the then current Term, notice of TNSI's intention to
renew, provided that in each such instance GFOL may deny that
renewal if TNSI will not have provided GFOL with at least $[****] in
Qualifying Revenue during the 12 months immediately preceding that
notice.
(c) As used throughout this Agreement, the word "Term" standing
alone shall refer to the then-current Initial Term or Renewal Term.
(d) The Minimum Guarantee Period shall end prior to the 31st month
of the Term, and TNSI shall have no further obligations to make
Guaranteed
33
Minimum revenue payments in the month that the total Qualifying
Revenue received by GFOL since February 1, 2003 equals or exceeds
$[****].
5. This First Amendment may be executed in any number of duplicate
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. Any counterpart signature
delivered by facsimile transmission shall be deemed to be and have the same
force and effect as an originally executed
6. No other term or provision of the Agreement is amended hereby, and all
other terms of the Agreement as originally executed by the parties will remain
in force.
IN WITNESS WHEREOF, the parties to the Asset Agreement, intending to be
legally bound, hereby adopt the foregoing Amendment as of the 31st day of
January, 2003.
GREENFIELD ONLINE, INC. XXXXXX XXXXXX SOFRES INTERSEARCH
CORPORATION
By: ______________________________ By: ______________________________
Title: __________________________ Title: __________________________
34
SECOND AMENDMENT TO
ALLIANCE, LICENSE AND SUPPLY AGREEMENT
November 26, 2003
This Second Amendment amends that certain Alliance, License and Supply
Agreement, dated January 31, 2002, as previously amended by that certain First
Amendment to Alliance, License and Supply Agreement dated as of January 31, 2003
(as so amended, the "Agreement"), by and between GREENFIELD ONLINE, INC., a
Delaware corporation ("GFOL") and XXXXXX XXXXXX SOFRES INTERSEARCH CORPORATION,
a Pennsylvania corporation (`TNSI"). All capitalized terms used herein will have
the same meanings as are set forth in the main body of the Agreement.
1. Term. The Term of the Agreement as set forth in Section 12 of the
Agreement is amended to expire on December 31, 2006. All renewal options are
terminated.
2. Alliance Modifications.
(a) Immediately upon the execution hereof, all of the parties' obligations
under Sections 1.3, 1.4, 1.5, 2.2.1(e), 2.2.6, 6, 9 (except for 9.5(a)), 10, 11
and 13 of the Agreement are terminated, except that any warranties contained
therein will survive, and except as may be otherwise expressly provided in this
Second Amendment to the contrary. The fifth sentence of Section 17.7 ("As long
as ... over $1,000,000") is also deleted.
(b) During the Term, GFOL, on its Web sites and promotional materials,
will identify "TNS" coequally with other custom research partners, except to the
extent that GFOL may hereafter agree to a special partnership arrangement with
one or more of those other partners.
(c) During the Term, and subject to Section 9.2(a)(5) of the Agreement,
GFOL agrees that it will not directly provide custom research design and
analysis services to End Users, or hold itself out as doing so.
(d) During the Term, TNSI and NFO Worldgroup, Inc., a Delaware corporation
(together with the various subsidiaries of NFO Worldgroup, Inc., "NFO"), and all
future business units, divisions and subsidiaries of TNSI and NFO, with respect
to all of their sales and performance of custom market research services that
are both (i) originated from or run through their US offices and (ii) directed
to US online consumer sample (collectively, "TNSUS"), will give GFOL an
opportunity to bid on supplying their third party online consumer sample (i.e.,
whenever TNSUS is seeking a sample source outside of TNSUS), ad hoc with respect
to each such bid, except as to types of studies, sectors or other categories of
sample needs as to which TNSUS will have determined reasonably and in good faith
that (I) GFOL does not have the capability or capacity at the time of such bid
to fulfill TNSUS's orders or (II) awarding the bid to GFOL would disadvantage
TNSUS. If GFOL responds to such bidding opportunities, time will be of the
essence
35
with respect to that response. TNSUS may nevertheless seek bids from other third
party sample suppliers contemporaneously with seeking GFOL's bids. Should the
commercial terms of GFOL's bid be equal to or more favorable, in terms of price
and delivery time, than other bids received by TNSUS, and should TNSUS at the
intended time of the award of the bid continue to believe reasonably and in good
faith both (1) that GFOL has the capability and capacity to fulfill TNSUS's
orders and (2) that awarding the bid to GFOL will not otherwise disadvantage
TNSUS, then TNSUS will award the contract to GFOL. Otherwise, TNSUS may purchase
sample from the bidder(s) of TNSUS's choice. GFOL agrees that it will not
exploit those bidding opportunities (or TNSUS's underlying business
opportunities) for its own advantage, except to render bids to TNSUS; and GFOL
will in all ways treat those bidding opportunities (and the underlying business
opportunities) as Confidential Information of TNSI and its affiliates as
provided in Section 14 of the Agreement. TNSUS agrees to treat GFOL's price and
delivery terms as contained in its bids as Confidential Information of GFOL as
provided for in Section 14 of the Agreement. As used in this paragraph, TNSUS
may consider that awarding a bid to GFOL could "disadvantage TNSUS" if, among
other things, (x) TNSUS's client prefers that TNSUS not engage GFOL, or (y)
TNSUS reasonably believes in good faith that GFOL is or since the date of this
Amendment has been competing directly against TNSUS to win the project or
similar projects from TNSUS's client. Subsection (y) only applies to situations
where GFOL and TNSUS are bidding directly on the same project, or GFOL since the
date of this Amendment has bid directly on similar projects, and not to
situations where GFOL is providing bids to multiple marketing research companies
for online sample in connection with the same marketing research project.
(e) During the Term, TNSI will not enter into any strategic relationship
with another third party online source of US consumer sample without first
giving GFOL the opportunity to bid on or otherwise negotiate such a
relationship.
(f) TNSI represents and warrants to GFOL that TNSI (including without
limitation in its capacity as the manager of certain assets of Xxxxxx Xxxxxx
Sofres Operations, Inc.) and NFO (together with various subsidiaries of NFO) are
presently the only US-based companies owned by TNSI's ultimate parent, Xxxxxx
Xxxxxx Sofres, plc., that provide custom market research services. NFO joins in
this Second Amendment for the sole purpose of confirming its obligations under
Paragraph (d) above in this Section 2.
(g) The provisions of Paragraphs (d) through (f) above in this Section 2
do not apply to activities of TNSUS or its affiliates in the health care sector.
(h) The provisions of Paragraphs 7.1(a) through 7.1(e) of that certain
Asset Purchase Agreement between GFOL and Xxxxxx Xxxxxx Sofres Operations, Inc.
("TNSO"), dated January 30, 2002 and amended January 31, 2002, are hereby
further amended to conform to the provisions of paragraphs (a) through (c) above
in this Section 2. TNSO joins in this Second Amendment for the sole purpose of
amending the Asset Purchase Agreement as stated. No other provisions of the
Asset Purchase Agreement are amended hereby.
36
3. Purchase and Sale Obligations. Immediately upon the execution hereof,
all of the provisions of Sections 5, 8.1 and 8.2 of the Agreement are
terminated, except for the third sentence of Paragraph 5(a) of the Agreement,
and subject to the continuing provisions of Section 7 of the Agreement, which
are amended as follows. TNSI must satisfy the Minimum Guaranteed Revenue
obligation established in Section 7 of the Agreement by March 31, 2004.
Thereafter TNSI will have no guaranteed revenue commitment; the pricing for the
GFOL Services as set forth in Section 7.1.2 will terminate; GFOL will not be
obligated to agree to fulfill any particular TNSI order for online sample; the
provisions of Subsections 2.2.1(a), 2.2.2, 2.2.3, 2.2.4, 2.2.5 and any remaining
provisions of Section 5(a) will terminate; and the parties will be free to
negotiate pricing for subsequent online sample purchases ad hoc. The parties
agree that $[****] of the Minimum Guaranteed Revenue obligation remains
unsatisfied as of October 31, 2003 (not giving effect to the pre-payment of
$[****] made by TNSI on November 10, 2003). Between the execution hereof and
March 31, 2004, TNSI will not be obligated to purchase any monthly minimum
amount of sample or pay any guaranteed monthly minimum amount. In the event that
the entire Minimum Guaranteed Revenue has not been paid by TNSI as of March 31,
2004, TNSI will immediately pay the difference.
4. Release. Each party hereby releases the other from any and all claims
and liabilities known to it through the date of this Second Amendment (including
without limitation any claims or liabilities relating to the acquisition of NFO
by TNS plc. and TNSI's use of sample provided and to be provided by NFO from and
after that acquisition), except for (a) accrued but unpaid payment obligations
for purchase of online sample by TNSI from GFOL to date, (b) obligations that
may hereafter accrue under the Agreement, as amended hereby, and (c) obligations
arising pursuant to the Asset Purchase Agreement by and among GFOL and TNSO,
dated January 30, 2002, as amended.
5. Execution. This Second Amendment may be executed in any number of
duplicate counterparts, each of which shall be deemed an original and all of
which together shall constitute one and the same instrument. Any counterpart
signature delivered by facsimile transmission shall be deemed to be and have the
same force and effect as an originally executed document.
6. Surviving Provisions. No other term or provision of the Agreement is
amended hereby, and all other terms of the Agreement as originally executed by
the parties and as amended by the First Amendment will remain in force. For the
avoidance of doubt, the following Sections of the Agreement (as previously
amended by the First Amendment), among others, will remain unchanged during the
Term, except as may be expressly provided in this Second Amendment to the
contrary: 1, 2.1, 2.2.1(b), (c), (d) and (f), 3, 4, 7, 8.3, 9.5(a), 12, 14, 15,
16, 17, 18, 19, 20, 21 and 22. Without limiting the generality of the foregoing,
the confidentiality provisions of Section 14 of the Agreement will extend to the
terms of this Second
37
Amendment, and neither party will publicly announce the terms or substance
hereof.
IN WITNESS WHEREOF, the parties have executed this Second Amendment on the
date first written above.
GREENFIELD ONLINE, INC. XXXXXX XXXXXX SOFRES
INTERSEARCH CORPORATION
By: _______________________________ By: ____________________________
Title: ____________________________ Title: _________________________
JOINED IN FOR PURPOSES OF PARAGRAPH 2(f) ONLY:
NFO WORLDGROUP, INC.
By: _______________________________
Title: ____________________________
JOINED IN FOR PURPOSES OF PARAGRAPH 2(h) ONLY:
XXXXXX XXXXXX SOFRES OPERATIONS, INC.
By: _______________________________
Title: ____________________________
38
