1
EXHIBIT 10.33
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
JUPITER COMMUNICATIONS
000 XXXXXXXX
XXX XXXX, XX 00000
PHONE: 000-000-0000
STRATEGIC PLANNING SERVICES (SPS) AGREEMENT FAX: 000-000-0000
IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN, THE PARTIES AGREE AS FOLLOWS:
CONTRACT TERM / NUMBER OF MONTHS [*****] MONTHS START DATE [*****] END DATE
[*****] INVESTMENT [*****] PAYMENT TERMS: UPON RECEIPT
THIS CONTRACTS PRICING AND DETAILS ARE CONTINGENT UPON EXECUTION OF THE JUPITER
MINDSHARE CONTRACT OF THE SAME DATE
===========================================================================================================================
CLIENT INFORMATION: XXXX TO:
Primary Contact: Xxxx Xxxxxx Primary Contact:
----------------------------------- --------------------------------
Company/Organization: Vitamin Shoppe Company/Organization:
--------------------------------- ------------------------------
Address: 0000 Xxxxxxxx Xxx. Address:
---------------------------------------------- ---------------------------------------
City, State and Zip: Xxxxx Xxxxxx, XX 00000 Xxxx, Xxxxx and Zip:
---------------------------------- ---------------------------
Phone: 000-000-0000 Fax: 000-000-0000
-------------------- ------------------------
Phone: Fax:
------------------- --------------
E-mail: xxxxxxx@xxxxxxxxxxxxx.xxx E-mail:
---------------------------------------------- --------------------------------------------
# OF POWER USERS: [*****] # OF ONLINE USERS: [*****] # OF FORUM PASSES: [*****]
------- ------- -------
# OF PRACTICES: [*****] # OF MODULES: [*****]
------- -------
Research Practices [ ] CONSUMER CONTENT STRATEGIES [ ] ONLINE ADVERTISING STRATEGIES [ ] SITE OPERATIONS STRATEGIES
[ ] DIGITAL COMMERCE STRATEGIES Market Modules [ ] SHOPPING [ ] HEALTH
============================================================================================================================
SPS DELIVERABLES: THE RESEARCH PRACTICES AND MARKET MODULES YOU'VE SELECTED ARE
INDICATED ABOVE
Jupiter Communications, LLC ("Jupiter") agrees to provide Vitamin Shoppe ("The
Client") with the following deliverables:
1. Unlimited access to Jupiter's research online and one hardcopy per SPS Power
User. Jupiter's research schedule is outlined as follows:
- Practices - (MONTHLY ANALYST REPORTS, WEEKLY ANALYST NOTES, MONTHLY
JUP-TELS)
- Market Modules - (BI-ANNUAL ANALYST REPORTS, MONTHLY ANALYST NOTES)
2. Unlimited number of ANALYST INQUIRY sessions for the designated SPS POWER
USER only. Analyst Inquiry session is a 30-minute discussion relevant to the
Practice or Module's competency areas.
3. FORUM PASSES - (QUANTITY IS INDICATED ABOVE) Up to TWO of the client's
allotment of passes may be used per forum. Last minute registrations will be
accepted if space if available. Additional passes may be purchased at a
[*****] discount.
4. PARTICIPATION IN MONTHLY TELECONFERENCES for the designated SPS Power User
only. Power users may participate in the monthly "JupTel" for their selected
practices(s). A JupTel is a telephone conference call that outlines the key
findings from a recent Analyst Report. Participants are invited to ask
questions at the end of the presentation.
5. The JUPITER/NFO CONSUMER SURVEY on the behavior, attitudes and spending
habits of consumers delivered twice a year.
CONFIDENTIALITY AGREEMENT
6. Jupiter has a policy of protecting its clients' information from disclosure
to third parties. Jupiter will take reasonable steps to protect from
disclosure materials marked "confidential", provided such materials are kept
proprietary by Client, not generally available to the public, or
independently developed by others.
7. Intellectual Property Rights - Jupiter retains exclusive rights to its
research, analysts and other copyrighted works, which may not be used or
distributed contrary to the terms of this agreement. Jupiter also retains
exclusive rights to its trademarks, including but not limited to JUPITER(R),
Jupiter Communications(R), and SPS(TM).Jupiter Communications may use the
Client's name and logo in promotional materials.
BREACH AND LIABILITY OF JUPITER AND THE CLIENT
8. If either party commits a material breach of any term or provision of this
Agreement, the non-breaching party must provide the breaching party with
written notice of the breach. The breaching party then must remedy the
breach within 30-days following receipt of the written notice. If the
breaching party does not remedy the breach within the 30-day period, the
non-breaching party may terminate this Agreement reserving all rights in law
and equity. Any outstanding balance shall be paid within thirty days of
execution of this agreement. In the event that all fees are not collected by
Jupiter as specified, Jupiter may at its sole discretion, terminate this
agreement and seek damages, including interest, costs and reasonable
attorneys' fees.
9. The liability for any acts or omissions, arising out of or related to this
agreement and the Deliverables, by Jupiter Communications, and its
employees, subsidiaries licensees and assigns, is limited to the fees paid
by the client for deliverables in the most recent subscription period. Non
performance shall be excused to the extent that performance is rendered
impossible by strike, fire, flood, governmental acts, orders or restrictions
or any other reason where failure to perform is beyond the control and not
caused by the negligence of the non-performing party.
10. The Client understands that access to Jupiter's research is only available
to the designated Power or Online Users. Power or Online Users are
prohibited from sharing passwords, copying, reprinting, or otherwise
distributing Jupiter research to unauthorized persons. This includes sharing
Jupiter research with other employees at the Client who are not authorized
Power or Online users . Any type of sharing of Jupiter research without the
express consent of Jupiter Communications is a violation of Jupiter's
Copyright, constitutes a material breach of this agreement and is expressly
forbidden.
11. In the event that this agreement, by either party, in whole or in part, is
sold, assigned, pledged, or otherwise transferred or assumed by a third
party, the other party will agree to be bound by the terms and conditions of
the agreement and the other party will guarantee such third party's
compliance with the terms and conditions of this agreement. This guarantee
will survive termination.
12. This Agreement shall be deemed to have been executed in the City and State
of New York, U.S.A. and shall be interpreted in accordance with and governed
by the Federal Arbitration Act and the laws of the State of New York and the
Commercial Rules of the American Arbitration Association (Notice for
purposes of arbitration will be deemed effected when served in a manner
proscribed by the Commercial Rules of the American Arbitration Association.
Any controversy or dispute concerning any act relating to or arising out of
this Agreement, shall be finally settled by binding arbitration under the
Commercial Rules of the American Arbitration Association then in effect.
Parties to this Agreement, for purposes of arbitration, include but are not
limited to (i) signatories; (ii) guarantors; (iii) assigns; and (iv)
subsidiaries, divisions, and agents of parties.
JUPITER COMMUNICATIONS LLC VITAMIN SHOPPE
-------------------------- --------------
Signed: [SIG] Signed: [SIG]
-------------------------------------- -------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx X. Xxxxxx
---------------------------------------- --------------------------------
Title: SPS Account Manager Title: CFO
--------------------------------------- --------------------------------
Date: 4/29/1999 Date: 4/29/99
---------------------------------------- ---------------------------------
2
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
ASTERISKS DENOTE OMISSIONS.
JUPITER COMMUNICATIONS
000 XXXXXXXX
XXX XXXX, XX 00000
MINDSHARE: THE JUPITER EXECUTIVE PROGRAM PHONE: 000-000-0000
STRATEGIC PLANNING SERVICES (SPS) AGREEMENT FAX: 000-000-0000
IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN, THE PARTIES AGREE AS FOLLOWS:
CONTRACT TERM / NUMBER OF MONTHS [*****] MONTHS START DATE [*****] END DATE
[*****] INVESTMENT [*****] PAYMENT TERMS: UPON RECEIPT
THIS CONTRACTS PRICING AND DETAILS ARE CONTINGENT UPON EXECUTION OF THE JUPITER
SPS CONTRACT OF THE SAME DATE
===========================================================================================================
CLIENT INFORMATION: XXXX TO:
Primary Contact: Xxxx Xxxxxx Primary Contact:
------------------------------- --------------------------------
Company/Organization: Vitamin Shoppe Company/Organization:
--------------------------- ----------------------------
Address: 0000 Xxxxxxxx Xxx. Address:
----------------------------------------- -----------------------------------------
City, State and Zip: Xxxxx Xxxxxx, XX 00000 Xxxx, Xxxxx and Zip:
----------------------------- -----------------------------
Phone: 000-000-0000 Fax: 000-000-0000
------------------- --------------------
Phone: Fax:
------------- --------------
E-mail: xxxxxxx@xxxxxxxxxxxxx.xxx E-mail:
-------------------------------------------- ------------------------------------------
===========================================================================================================
MINDSHARE DELIVERABLES:
Jupiter Communications, LLC ("Jupiter") agrees to provide Vitamin Shoppe ("The
Client") with the following deliverables:
1. Unlimited access to Jupiter's Executive Research online and one hardcopy for
the MINDSHARE EXECUTIVE USER. Jupiter's research schedule is outlined as
follows:
- Quarterly Analyst Reports
- Monthly Analyst Notes
2. TWO MINDSHARE STRATEGY sessions presented at the client's site by a Jupiter
Mindshare Analyst. Strategy sessions are 3 to 4 hours in length and must be
scheduled at least one month in advance. Client will receive a summary of
the session as well as a follow up phone call from the presenting Jupiter
Mindshare Analyst two weeks after the Strategy Session. Two sessions may be
scheduled in one day. Travel and accommodation expenses for the sessions are
included in the contract price.
3. ONE PASS TO THE JUPITER EXECUTIVE FORUM - The Executive Forum pass is not
transferable without prior permission from Jupiter Communications.
CONFIDENTIALITY AGREEMENT
4. Jupiter has a policy of protecting its clients' information from disclosure
to third parties. Jupiter will take reasonable steps to protect from
disclosure materials marked "confidential", provided such materials are kept
proprietary by Client, not generally available to the public, or
independently developed by others.
5. Intellectual Property Rights - Jupiter retains exclusive rights to its
research, analysts and other copyrighted works, which may not be used or
distributed contrary to the terms of this agreement. Jupiter also retains
exclusive rights to its trademarks, including but not limited to JUPITER(R),
Jupiter Communications(R), and SPS(TM). Jupiter Communications may use the
Client's name and logo in promotional materials.
BREACH AND LIABILITY OF JUPITER AND THE CLIENT
6. If either party commits a material breach of any term or provision of this
Agreement, the non-breaching party must provide the breaching party with
written notice of the breach. The breaching party then must remedy the
breach within 30-days following receipt of the written notice. If the
breaching party does not remedy the breach within the 30-day period, the
non-breaching party may terminate this Agreement reserving all rights in law
and equity. Any outstanding balance shall be paid within thirty days of
execution of this agreement. In the event that all fees are not collected by
Jupiter as specified, Jupiter may at its sole discretion, terminate this
agreement and seek damages, including interest, costs and reasonable
attorneys' fees.
7. The liability for any acts or omissions, arising out of or related to this
agreement and the Deliverables, by Jupiter Communications, and its
employees, subsidiaries licensees and assigns, is limited to the fees paid
by the client for deliverables in the most recent subscription period. Non
performance shall be excused to the extent that performance is rendered
impossible by strike, fire, flood, governmental acts, orders or restrictions
or any other reason where failure to perform is beyond the control and not
caused by the negligence of the non-performing party.
8. The Client understands that access to Jupiter's research is only available
to the designated Mindshare Executive User. Clients are prohibited from
sharing passwords, copying, reprinting, or otherwise distributing Jupiter
research to unauthorized persons. This includes sharing Jupiter research
with other employees at the Client who are not authorized Mindshare
Executive users. Any type of sharing of Jupiter research without the express
consent of Jupiter Communications is a violation of Jupiter's Copyright,
constitutes a material breach of this agreement and is expressly forbidden.
9. In the event that this agreement, by either party, in whole or in part, is
sold, assigned, pledged, or otherwise transferred to or assumed by a third
party, the other party will agree to be bound by the terms and conditions of
the agreement and the other party will guarantee such third party's
compliance with the terms and conditions of this agreement. This guarantee
will survive termination.
10. This Agreement shall be deemed to have been executed in the City and State
of New York, U.S.A. and shall be interpreted in accordance with and governed
by the Federal Arbitration Act and the laws of the State of New York and the
Commercial Rules of the American Arbitration Association (Notice for
purposes of arbitration will be deemed effected when served in a manner
proscribed by the Commercial Rules of the American Arbitration Association.
Any controversy or dispute concerning any act relating to or arising out of
this Agreement, shall be finally settled by binding arbitration under the
Commercial Rules of the American Arbitration Association then in effect.
Parties to this Agreement, for purposes of arbitration, include but are not
limited to (i) signatories; (ii) guarantors; (iii) assigns; and (iv)
subsidiaries, divisions, and agents of parties.
JUPITER COMMUNICATIONS LLC VITAMIN SHOPPE
-------------------------- --------------
Signed: [SIG] Signed: [SIG]
------------------------------------------------- -----------------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx X. Xxxxxx
--------------------------------------------------- -------------------------------------------
Title: SPS Account Manager Title: CFO
-------------------------------------------------- ------------------------------------------
Date: 4/29/1999 Date: 4/29/1999
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