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 s 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 each survey if TNSI
proposes that the incentive deviate from that
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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
xxxx@xxxxxxxxxxxxxxxx.xxx. 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 in manners
expressly permitted by independent arrangements between TNSI and any of
those companies, or by the common law.
11
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 paid for services
actually rendered by GFOL pursuant to Work Orders
accepted by GFOL, Work Orders that gave rise to
Conditional Acceptances
12
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 the
sixth, seventh and eighth quarters above the
Guaranteed Minimum Revenue amount (reduced for
Qualifying Revenue pursuant to Subsections
13
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 quarter.
After the first two years of the Term, the timing of TNSI's
payments
14
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.
(3) Sales of sample and/or of programming or
hosting services to consulting firms for the
benefit of those firms' clients, but not
15
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.
(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
16
[****] 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.
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
17
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" 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
18
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 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
19
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 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
20
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:
(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
21
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
[****] 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.
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
22
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 independently developed by the other
party. Each party will disclose the other's confidential information to
its employees, professional advisors and affiliates only on
23
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,
relating to any alleged or actual act or omission of
GFOL occurring during or after the Term.
24
(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 the
indemnified party shall be deemed accepted in the amount of
the loss, and the loss shall be deemed established. If
25
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 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
26
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.
IN WITNESS WHEREOF, the parties have caused duplicate originals of this
Agreement to be executed on the date(s) set forth below:
27
XXXXXX XXXXXX SOFRES INTERSEARCH GREENFIELD ONLINE, INC.
CORPORATION
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx
----------------------- ---------------------------
Xxxx Xxxxxx
Its President + CEO President & CEO
Duly Authorized
Date: 1/31/02 Date: 1/31/02
28
SCHEDULE 1.6(b)
GFOL systems and technologies to which TNSI employees will have access
1. QMS.asp (frequency reports)
2. HP Panel Tools (Currently in final stages of development)
3. Frito Database reporting tools
4. FocusChat (Moderator and Client level access)
5. Mindstorm (Moderator level access)
6. Xxxxxxxxxx.xxx data (but not free xxxxxxxxxx.xxx seats or licenses)
SCHEDULE 9.2(a)(1)
Strategic Research Companies
Xxxxxxxxx Research
AMR
Gartner
Meta Group
Giga Group
The Xxxxx Group
Net Ratings
Jupiter Communications
XX Xxxxxxx
VNU
JD Power & Associates
Pulsefinder
IDC
The Yankee Group
Flacket and Associates
Xxxxxx
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
30
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 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: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxx
------------------------ -------------------------------
Title: CEO, President Title: CFO
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: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------------ -----------------------------
Title: CEO Title: President/CEO
JOINED IN FOR PURPOSES OF PARAGRAPH 2(f) ONLY:
NFO WORLDGROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Title: President NFO North America
JOINED IN FOR PURPOSES OF PARAGRAPH 2(h) ONLY:
XXXXXX XXXXXX SOFRES OPERATIONS, INC.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Title: President/CEO
38
