AGREEMENT
This is an Agreement ("Agreement") between CommonPlaces LLC ("CP") and
Greenfield Online, Inc. ("Greenfield") known together as "the parties" to this
Agreement.
WHEREAS, Pulsefinder ("PF"), a joint effort between CP and Greenfield, is
an internet site that features non-scientific online public opinion polls of
interest to college students in order to build a database populated by students
from which market research can be conducted and sold to clients interested in
the college market;
WHEREAS, CP has one or more internet sites from which to recruit opt-in
Pulsefinder participants;
WHEREAS, Greenfield performs the design and execution of online qualitative
and quantitative market research and the sale of such research to clients;
WHEREAS, CP desires to have a relationship with Greenfield whose expertise
is the design and execution and sale of online qualitative and quantitative
market research and Greenfield desires to have a relationship with CPs who have
unique reach and presence in the college market;
WHEREAS, the parties desire to enter into an agreement whereby CP shall
recruit opt-in panel participants to the PulseFinder Database and Greenfield
shall perform and sell market research services to third parties;
NOW, THEREFORE, in consideration of the above circumstances and of the
mutual promises and conditions contained herein, the parties agree as follows:
1. Term. Unless terminated as permitted herein, this Agreement shall be
effective as of the 20th day of January 1998 and shall continue for three (3)
years. The Agreement shall automatically renew for successive two (2) year
periods unless either party within ninety (90) days of the expiration of the
then current term, gives the other party written notice of its intention not to
renew.
2. CP Internet Sites. CP shall provide one or more sites on the world wide
web portion of the Internet (the "CP Internet Sites") offering Internet hub
service for select audiences and in particular, college students and shall be
responsible for recruiting opt-in participants to joint the PF Database.
Recruiting will consist of but not be limited to the following:
a. Registration offer to participate in PF Database shall be in the form
of an opt-in box to be manually checked by the user if the user desires to
become a participant.
b. At CP's discretion, message and/or solicitation via e-mail/newsletter
shall be in the form of a reminder to participate appearing on user's personal
calendar and/or a button
on pages of xxxxxxx.xxx promoting participation in PF Database. The parties
shall meet to establish targets for recruitment efforts.
3. Pulsefinder Overview. Pulsefinder is the name of a market research
service and an internet site(s) owned by CP that targets college students
allowing them to participate in non-scientific polls and to opt-in via
registration into the PulseFinder Database ("PF Database") from which market
research can be conducted and the results sold to clients interested in this
market. The PF Database will be part of CP's database of users tagged with a
Pulsefinder opt-in participation flag.
4. Greenfield Service. Greenfield shall be responsible for the design and
execution of on-line market research using the opt-in participants in the PF
Database and the sale of such research to clients (the "Service"). The Service
shall consist of two components: a core group of non-changing questions (the
"Syndicated Research") and research done on demand for third parties which
features highly specific questions (the "Custom Research"). Greenfield shall
establish the rates to be charged for the Syndicated Research and shall notify
CP of such rates. All rates are subject to change at Greenfield's discretion
only. If CP sells any of the Services, it must use Greenfield's Syndicated
Research Rates then in effect or obtain Greenfield's prior written approval with
respect to rates for Custom Research.
5. Revenue. Revenue is generated by (1) the sales of the Service conducted
periodically (i.e., quarterly or monthly) to clients by Greenfield interested in
market research services and (2) through CP's media sponsorship and is payable
to the parties as follows:
a. Syndicated Research. Revenue generated from selling Syndicated
Research will first be applied toward the payment of each party's Expenses (as
defined in Section 6); any remaining revenue will be divided equally between the
parties.
b. Custom Research Revenue. CP will be paid a flat fee of ten percent
(10%) of gross revenue received by Greenfield for any Custom Research projects
utilizing the PF Database ("Custom Research Revenue") for a client sold the
Customer Research services by Greenfield. CP will be paid a flat fee of fifteen
percent (15%) of gross revenue received by Greenfield for any Custom Research
projects utilizing the PF Database ("Custom Research Revenue") for a client sold
the Custom Research services by CP.
c. CP Sales Revenue. Greenfield shall invoice and use all reasonable
commercial efforts to collect all amounts due for sales of Syndicated and Custom
Research sold by CP. On a quarterly basis Greenfield will provide CP with a
statement of revenues collected and outstanding. CP will render all appropriate
assistance in collecting these revenues.
6. Expenses. The Expenses of each party to be recognized for payment
pursuant to Section 5 (a) and (b) will be limited to direct third-party vendor
expenses as they relate to the development and maintenance of the Pulsefinder
internet site. And which shall be paid back to each party on a pro-rata basis
based on each party's expenses. Neither party will charge the other for any
internal overhead or staffing costs. No party shall incur Expenses without
informing the other party, and each party will keep a record of Expenses and
review once a
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quarter. CP will submit the Expenses eligible for payment under this Agreement
within 10 days of the end of each calendar quarter.
7. Payments. Payments pursuant to this Agreement shall be made within
thirty (30) days of the end of each calendar quarter in which such revenue is
received by the party owing such payment in accordance with Section 5. All
payments shall be made in U.S. dollars. Each party shall be responsible for any
income and other taxes required under applicable laws arising out of monies
received by each of them pursuant to this Agreement and Greenfield shall be
responsible for the collection, accounting and payment of sales taxes in
connection with the sale of any Services. Each party shall submit with each
payment made pursuant to this Section a detailed report of the calculation of
each such payment.
8. Records and Audit. Each party shall keep and maintain true and complete
records relating to Expenses payable pursuant to this Agreement and payments due
pursuant to this Agreement in sufficient detail to enable the amounts payable to
either party to be accurately determined. Such books and records shall be made
available upon reasonable notice, at reasonable times during regular business
hours, for inspection by each party, or its designated representative. The
parties shall maintain such books and records for at least one (1) year after
the expiration or termination of this Agreement. Each party shall bear its own
expenses in conducting an audit unless the other party has underpaid by more
than five percent (5%) of the total amount due for the period of the audit, in
which case the party being audited shall bear the reasonable cost of the audit.
9. Joint Marketing. The parties agree to work together and to use
reasonable commercial efforts to market Pulsefinder's service as set forth in
this Agreement. When offering Internet market research services to a client CP
shall refer such client to Greenfield to perform market research services on an
exclusive basis. Revenues received from client for market research services
shall be remitted to the parties as set forth in Section 7.
10. Additional Business. It is envisioned that as the PF Database grows
Greenfield and CP may create additional research products beyond those outlined
by this Agreement (e.g., Syndicated Research and household panel cells within
Pulsefinder). Depending on the type of research products the additional business
encompasses, revenue will be allocated using the formula for either the
Syndicated Revenue or Custom Revenue in either case to be mutually agreed upon
by the parties.
11. The Joint Service. CP shall publicize the Pulsefinder site through its
media, sign up students through on campus events to the PF Database, secure
prizes from marketers for PF Database registrants, and implement winner
selection and prize fulfillment. CP shall also be able to market Pulsefinder
research to its clients in accordance with the provisions of Section 5. CP shall
forward client leads to Greenfield and assist in the creation of research as
required. Greenfield's primary responsibility shall be the design and execution
of market research and the sale of such research to clients. Greenfield shall
advise CP in the development of Pulsefinder as requested from time to time by
CP.
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12. User Information. All user information is CP's confidential information
and the property of CP. Greenfield and Pulsefinder shall not use (including but
not limited to collect, gather, compile, retain, store, sell, lease, disclose,
publish) any information about or relating to users except in the normal and
proper course of performing pursuant to this Agreement, or with CP's express
prior written consent. Greenfield and Pulsefinder shall not use user information
for marketing, advertising, promotion or selling purposes except as expressly
permitted by this Agreement or with CP's express prior written consent.
Greenfield and Pulsefinder shall turn over all user information it gathers to
CP. Greenfield and Pulsefinder may retain such user information as may be
necessary to perform its obligations pursuant to this Agreement and for user
customer service purposes and official record keeping (such as sales tax
records).
13. Exclusivity.
a. During the term of this Agreement, Greenfield shall not engage the
services of another provider of one or more sites on the Internet offering
services similar to those provided by the CP Internet Sites as of the date of
this Agreement. Should Greenfield desire to work with Internet sites offering
services similar to those provided by XX Xxxxxxxxxx shall obtain prior written
approval of CP.
b. During the term of this Agreement, Greenfield shall have exclusive
access, marketing and sales rights to the PF Database (and any expansions
thereof as contemplated by Section 10) for the purpose of performing Syndicated
and Custom Market Research.
14. Limitations on Service. The parties shall not place or cause to be
placed on or in connection with the Pulsefinder internet site or database
anything which is obscene, threatening, malicious, or which infringes on or
violates any applicable law or regulation or any proprietary, contract, moral,
privacy or other third party right, or which otherwise exposes itself and/or the
other party to civil or criminal liability. A breach of this provision by either
party shall be a material breach of this Agreement.
15. Compliance with Laws. The parties shall comply with all applicable
laws, rules and regulations, including any Internet regulations or policies and
applicable export laws, of the United States in connection with their
performance pursuant to this Agreement.
16. Proprietary Rights.
a. As between Greenfield and CP, the Internet market research service
analysis shall remain the sole and exclusive property of Greenfield and/or its
suppliers, including, without limitation, all copyrights, trademarks, patents,
trade secrets, and any other proprietary rights. Nothing in this Agreement shall
be construed to xxxxx XX any ownership right in, or license to, Greenfield's
Internet market research service analysis.
b. As between Greenfield and CP, CP's Internet sites, user data and the
content and services featured therein and thereon shall remain the sole and
exclusive property of CP and/or its suppliers, including, without limitation,
all copyrights, trademarks, patents, trade secrets, and any other proprietary
rights. Nothing in this Agreement shall be construed to grant
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Greenfield any ownership right in, or license to, CP's Internet sites and the
content and service featured therein and thereon.
17. Trademark Usage.
x. Xxxxxxxxxx Marks. Greenfield hereby grants to CP during the term of
this Agreement a worldwide, nonexclusive, nontransferable non-assignable right
to use Greenfield's trademarks as specified in this Agreement in connection with
the Service featured on CP's Internet sites. All such use of Greenfield's
trademarks shall inure to the benefit of Greenfield. Nothing in this Agreement
shall create any further right, title or interest for CP in Greenfield's
trademarks or in any of Greenfield's other names, trademarks, service marks,
design marks, symbols and/or other indicia of origin and no use of such will be
made by CP for any purpose without the prior written approval of Greenfield. CP
shall use Greenfield's trademarks in accordance with such reasonable guidelines
as Greenfield may provide to CP from time to time. CP agrees to cooperate with
Greenfield in facilitating the monitoring and control of the use of Greenfield's
trademarks, and to supply Greenfield with samples of use upon written request.
All uses of Greenfield's trademarks shall be subject to Greenfield's prior
written approval. CP shall not modify any of Greenfield's trademarks without
Greenfield's prior written approval. CP shall not use any name or xxxx
substantially similar to a Greenfield name or xxxx as such to cause confusion in
the mind of a reasonable person as part of any domain name without prior written
approval of Greenfield. This shall not apply to any name or marks commercially
used by CP prior to the execution date of this Agreement.
b. XX Xxxxx. CP shall be the sole owner of the Pulsefinder
trademark(s). CP hereby grants to Greenfield during the term of this Agreement a
worldwide, nonexclusive, nontransferable non-assignable right to use CP's and
the Pulsefinder trademarks as specified in this Agreement in connection with the
Service featured on CP's Internet sites (together "CP Trademarks"). All such use
of the CP Trademarks shall inure to the benefit of CP. Nothing in this Agreement
shall create any further right, title or interest for Greenfield in CP's
Trademarks or in any of CP's other names, trademarks, service marks, design
marks, symbols and/or other indicia or origin and no use of such will be made by
Greenfield for any purpose without the prior written approval of CP. Greenfield
shall use CP's Trademarks in accordance with such reasonable guidelines as CP
may provide to Greenfield from time to time. Greenfield agrees to cooperate with
CP in facilitating the monitoring and control of the use of CP's Trademarks and
to supply CP with samples of use upon written request. All uses of CP's
Trademarks shall be subject to CP's prior written approval. Greenfield shall not
use any name or xxxx substantially similar to a CP name or xxxx as such to cause
confusion in the mind of a reasonable person as part of any domain name without
prior written approval of CP. This shall not apply to any name or marks
commercially used by Greenfield prior to the execution date of this Agreement.
c. The parties shall, upon the expiration or termination of this
Agreement, cease and desist from all use of all other party's marks.
18. Ownership of Pulsefinder Database Records. CP shall be the sole owner
of all records related to Pulsefinder participants. Any members of the PF
Database who also join Greenfield's database will not be considered exclusive
property of Pulsefinder. Greenfield
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agrees it shall not knowingly solicit members of the PF Database for
participation in Greenfield's proprietary database without the prior approval
from CP. CP will make best efforts to continue the relationship with Pulsefinder
participants beyond the college time period. Together Greenfield and CP will
work to develop additional research projects to field to the "beyond college" PF
participants. CP agrees that Greenfield will have the exclusive rights to
conduct all market research on this "beyond college" PF database. In the event
that this Agreement is terminated pursuant to Sections 35, 36 or 37 Greenfield
shall immediately deliver to CP the computer records containing all current and
historical PF Database records, including all current and prior students. Once
such records have been delivered to CP and CP has confirmed the contents of such
records, Greenfield shall purge the records from their hardware and software
systems.
19. Availability of CP's Internet Sites. CP's Internet sites provided in
connection with a joint service shall be accessible to registered users of such
sites via the WWW portion of the Intern twenty-four (24) hours a day, seven (7)
days a week, except for scheduled maintenance and/or required repairs, and
except for any loss or interruption due to causes beyond the control of CP or
which are not reasonably foreseeable by CP, including, but not limited to,
interruption or failure of telecommunication or digital transmission links and
Internet slow-downs or failures.
20. Availability of Pulsefinder's Internet Access Service. Pulsefinder's
Internet access service provided in connection with a joint service shall be
accessible to registered users of such service via the WWW portion of the
Internet twenty-four (24) hours a day, seven (7) days a week, except for
scheduled maintenance and/or required repairs, and except for any loss or
interruption due to causes beyond the control of Pulsefinder or which are not
reasonably foreseeable by Pulsefinder, including, but not limited to,
interruption or failure of telecommunication or digital transmission links and
Internet slow-downs or failures.
21. Confidentiality. In connection with performing pursuant to this
Agreement, the parties acknowledge that they may disclose and/or receive
confidential information proprietary to the other party.
a. "Confidential information" includes, but is not limited to, all
information proprietary to CP or to Greenfield, whether or not reduced to
writing or other tangible medium of expression, and whether or not patented,
patentable, capable of trade secret protection, or protected as an unpublished
or published work under the United States Copyright Act of 1976 as amended.
Confidential information also includes information relating to the intellectual
property and business practices of CP or Greenfield. Confidential Information
also includes comparable information that CP or Greenfield may receive or has
received from others they do business with.
b. "Intellectual Property" includes information relating to research
and development, inventions, discoveries, developments, improvements, methods
and processes, know-how, drawings, blueprints, specifications, product briefs,
algorithms, computer programs and software, compositions, works, concepts,
designs, ideas, prototypes, models, samples, screens, molds, patents,
copyrights, trademarks, trade names, trade secrets, formulate, writings, notes,
and patent, trademark, and copyright applications.
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c. "Business practices" includes information relating to intellectual
property, business plans, financial information, products, services,
manufacturing processes and methods, costs, sources of supply, advertising and
marketing plans, customer lists, sales, profits, pricing methods, personnel, and
business relationships.
d. This Agreement and the terms thereof shall be confidential
information.
e. Confidential information does not include information which (i) was
already known to the other party, (ii) becomes generally available to the public
other than through a breach of this Agreement, (iii) is furnished to the other
party by a third party who is lawfully in possession of such information and who
lawfully conveys that information, or (iv) is subsequently developed by the
receiving party independently of the information received from the disclosing
party of (v) is required to be disclosed pursuant to judicial or administrative
process or order.
22. Treatment and Protection of Confidential Information. The parties agree
to take reasonable steps to protect the other's confidential information. The
parties agree not to: (a) use, except as required by the normal and proper
course of performing under this Agreement, (b) disclose, (c) copy, or (d) allow
access to, the other's confidential information without express prior written
consent or as may be required by law or by action of a competent government
authority subject to the party compelled to disclose good faith efforts to meet
such requirement subject to a confidentiality agreement or protective order.
These restrictions will continue to apply as long as the confidential nature of
the information is maintained and shall survive the expiration or termination of
this Agreement for a period of three (3) years.
23. 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 the services each will provide for joint
service. There are no warranties, promises or statements made by either party
except as specifically stated herein with respect to any matter. Neither party
has made any affirmation of fact or promise relating to the services or duties
that have become any basis of this Agreement other than as stated herein, and
the parties acknowledge that they have relied on no warranties, promise or
statements other than those expressly set forth in this Agreement. The parties
acknowledge that any estimates, projections, or forecasts provided to it by or
on behalf of the other party are only estimates and are not representations that
such estimates will be realized.
24. No Recruitment. During the term of this Agreement and for a period of
one year after the completion and/or termination of this Agreement, CP and
Greenfield shall not without the express written permission of the other party:
(a) hire or assist anyone else in hiring any employee of the other party; (b)
seek to persuade any employee of the other party to discontinue employment or to
become engaged or employed in any business which is (directly or indirectly) in
competition with the other party; or (c) seek to persuade any independent
contractor to discontinue a relationship with the other party.
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25. Publicity. Except in the course of performing pursuant to this
Agreement, the parties will not publicize this Agreement, the terms hereof or
the efforts to be or made in connection with performing pursuant to this
Agreement without the express prior written permission of the other party.
26. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
THE PARTIES MAKE NO WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIM ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
27. LIABILITY LIMITATION. EXCEPT AS SET FORTH WITH RESPECT TO THE
INDEMNIFICATION SECTION BELOW, THE PARTIES SHALL HAVE NO LIABILITY TO EACH OTHER
FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE SERVICE
AND/OR ANY INTERNET SITE OR AREA FEATURING THE SERVICE, OR OTHERWISE FOR
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
28. Indemnification.
a. By Greenfield. With respect to claims or actions against one or both
parties by third parties insofar as such claim, demand or action is attributable
to the acts or omissions of Greenfield or a breach by Greenfield of a
representation and/or warranty made in this Agreement, Greenfield shall (i)
indemnify CP against any liability, cost, loss, or expense of any kind; and (ii)
hold harmless CP and save it from any liability, cost, loss, or expense of any
kind. CP shall have the right to select and control legal counsel for the
defense of any such claim, demand or action; however, Greenfield must approve
any settlement of any such claim, demand or action to the extent that such
settlement imposes any restrictions on or requires Greenfield to contribute
financially to such settlement.
b. By CP. With respect to claims or actions against one or both parties
by third parties insofar as such claim, demand or action is attributable to the
acts or omissions of CP or a breach by CP of a representation and/or warranty
made in this Agreement, CP shall (i) indemnify Greenfield against any liability,
cost, loss, or expense of any kind; and (ii) hold harmless Greenfield and save
it from any liability, cost, loss, or expense of any kind. Greenfield shall have
the right to select and control legal counsel for the defense of any such claim,
demand or action and for any negotiations relating to any such claim, demand or
action; however, CP must approve any settlement of any such claim, demand or
action to the extent that such settlement imposes any restrictions on or
requires CP to contribute financially to such settlement.
29. Dispute Resolution. If any dispute arises under this Agreement, the
parties shall make a good faith effort to resolve the dispute before taking any
action. The parties shall meet to discuss the dispute no later than thirty (30)
days after either party gives written notice to the other party that such a
dispute exists. Such meeting may be held telephonically if travel is impractical
for either party. At such meeting, Greenfield and an officer of CP who has
authority
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to resolve the dispute shall be in attendance. No action, suit, arbitration or
other proceeding may be commenced before the parties have met pursuant to this
provision unless immediate injunctive relief is being sought, in which case the
noted meeting shall take place at the earliest opportunity after such immediate
injunctive relief is sought.
30. Waiver of Jury Trial. The parties hereby agree to waive their
respective rights to a jury trial of any claim or cause of action related to or
arising out of this Agreement. The scope of the waiver is intended to be all
encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter herein, including without limitation, contract
claims, tort claims, breach of duty claims, and all other common law and
statutory claims. The parties each acknowledge that the waiver is a material
inducement for each party to enter into a business relationship, that each party
has already relied on the waiver in entering into this Agreement and that each
will continue to rely on the waiver in their related future dealings. Each party
further warrants and represents that each has had the opportunity to have legal
counsel review the waiver. The waiver is irrevocable, meaning that it may not be
modified either orally or in writing, and the waiver shall apply to any
subsequent amendments, renewals, supplements or modifications to this Agreement.
In the event of litigation, this Agreement may be filed as written consent to a
trial by court.
31. Prevailing Party. If any legal action or other proceeding is brought
for a breach of this Agreement or any of the warranties herein, 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.
32. Independent Contractor. The parties, CP and Greenfield, are and have
been contracted with each other as independent contractors. Neither party
undertakes by this Agreement, or otherwise, to perform any of the obligations of
the other. In no way is one party to be construed as an agent, or acting as an
agent of the other in any respect.
33. Prior Obligations. CP and Greenfield represent and warrant that
entering into and performing under this Agreement does not conflict with any
prior obligations to third parties.
34. Taxes. Each party shall be responsible for any income and other taxes
required under applicable laws arising out of the monies received by each of
them pursuant to this Agreement.
35. Termination in the Event of a Material Breach. In addition to the
specific termination provisions of this Agreement, either party may terminate
this Agreement at any time in the event of a material breach of the terms herein
by the other party, if such party shall fail to cure such material breach within
fifteen (15) days of written notice of such breach.
36. Termination Due to Insolvency. If either party: (a) commences or
becomes the subject of any case or proceeding under the bankruptcy, insolvency
or equivalent laws of any country in the Territory; (b) has appointed for it or
for any substantial part of its property a court-appointed receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official; (c) makes
an assignment for the benefit of its creditors; (d) defaults on any secured
obligation;
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(e) fails generally to pay its debts as they become due; or (f) takes corporate
action in furtherance of any of the foregoing (collectively, herein referred to
as "Events of Insolvency"), then, in each case, the party experiencing such an
Event of Insolvency shall immediately give notice of such event to the other
party. Whether or not such notice is given, the other party shall have the
right, to the fullest extent permitted under applicable law, following the
occurrence of any Event of Insolvency and without prejudice to any other rights
it may have, at any time thereafter to terminate this Agreement, effective
immediately upon giving notice to party experiencing such an Event of
Insolvency.
37. Termination upon Change of Business. If either party, either in a
single transaction or in a series of related transactions, and either directly
or indirectly: (a) sells, or otherwise disposes of, all or substantially all of
its business or assets; or (b) transfers effective voting or other business
control of itself (a "triggering transaction"), then the other party shall have
the right, without prejudice to any other rights it may have, to terminate this
Agreement, effective immediately upon giving notice to the other party, provided
that such notice is given not later than sixty (60) days following the date of
the triggering transaction. A public offering by either or both parties and/or
the merger of CP and Network Event Theater, Inc. shall not be considered a
triggering transaction pursuant to this Section.
38. Termination in the Event of a Material Breach. In addition to the
specific termination provisions of this Agreement, either party may terminate
this Agreement at any time in the event of a material breach of the terms herein
by the other party, if such party shall fail to cure such material breach within
fifteen (15) days of notice of such breach.
39. Waiver of Breach. A breach of any provision of this Agreement may only
be waived in writing and the waiver of such breach shall not operate or be
construed as a waiver of any subsequent breach.
40. Severability. If any provision of this Agreement should, for any
reason, be held invalid or unenforceable in any respect, the remainder of this
Agreement shall be enforced to the full extent permitted by law. A court of
competent jurisdiction is hereby empowered to modify the invalid or
unenforceable provision to make it valid and enforceable.
41. Performance Excused. The parties shall be excused from delays in
performing or from any failure to perform hereunder to the extent that such
delay or failure result from causes such as war or natural disaster or strike
which are beyond the reasonable control of the party, provided that, in order to
be excused from delay or failure to perform, the party must act diligently to
remedy such delay or failure. In the event such delay continues for five (5)
consecutive days, either party shall have the right to terminate this Agreement.
42. Separation. In the event that this Agreement is terminated, Greenfield
shall immediately deliver to CP computer records containing all current and
historical PF Database records for all Pulsefinder participants. These computer
records shall include all current and historical database records, but
Greenfield will have the right to purchase the names of graduates for a price
equal the market rate for recruiting a qualified respondent at that time to
Greenfield's greater research database. Therefore Greenfield must create and
maintain its database in such a
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manner as to facilitate the transfer of records to CP and the purging of records
as described above.
43. Assignment and Transfer. The parties shall not assign or transfer this
Agreement without the express prior written consent of the other.
44. Bind and Benefit. This Agreement shall bind and benefit the successors
and assigns of the parties.
45. Notice and Delivery. Under this Agreement, if one party is required to
deliver or submit something to the other, or give notice, such delivery and such
notice shall be receivable on business days only by next day courier (such as
Federal Express, DHL, UPS or the like) addressed as set forth below or as may
otherwise be agreed to in writing. Notice shall be deemed given upon receipt.
For CP: Counsel For Greenfield: President
CommonPlaces LLC Greenfield Online, Inc.
000 Xxxxxxxx Xxxxx 00 Xxxxx Xxxx
Xxxxxxxxx, XX 00000 Wilton, CT
with a copy to:
Xxxxxxxx X. Xxxxxx, Esq.
Wake, See, Diems & Bryniczka
00 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
46. Entire Agreement. This Agreement contains the entire agreement between
the parties as to the subject hereof. This Agreement supersedes all prior oral
and written agreements between the parties as to the subject hereof. This
Agreement may not be modified or amended except by writing signed by an officer
of CP and an officer of Greenfield.
47. Headings. Headings in this Agreement are for the purpose of convenience
only. They are not intended to be a material part of the Agreement, and in the
event of any conflict between the heading and the text, the text shall govern.
48. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the Commonwealth of Massachusetts, United States of
America without reference to its principles of conflicts of law. The parties
consent to the federal and state courts of the Commonwealth of Massachusetts
having jurisdiction over them.
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IN WITNESS WHEREOF, Greenfield and CP have caused duplicate originals of
this Agreement to be executed on the date(s) set forth below:
COMMONPLACES LLC Greenfield Online, Inc.
/s/ /s/
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Xxxxxxxx Xxxxx printed name: Xxxx Xxxxxx
President & Chief Executive Officer title: President & CEO
Date: Date: 1/28/00
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