1
EXHIBIT 10.11
AGREEMENT
THIS AGREEMENT is made and entered into as of the 17 day of March, 1997 by
and between AUDITS & SURVEYS WORLDWIDE, INC., a Delaware corporation ("ASW"),
with its principal business address of 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000, and CYBERGOLD, INC., a California corporation ("CyberGold"), with its
principal business address of 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, XX 00000.
RECITALS:
A. CyberGold has developed and owns the rights to a site on the World
Wide Web of the Internet (the "Web") known as the CyberGold Site and having the
domain name of "XxxxxXxxx.xxx" (the "CyberGold Site"), and CyberGold owns or is
authorized to use certain proprietary computer software for on-line real-time
access through the CyberGold Site to advertisements and other types of
incentive and informational products on the CyberGold Site or on other sites on
the Web, all as described in CyberGold's promotional materials (collectively
with the CyberGold Site, the "CyberGold System").
B. In connection with the CyberGold System, CyberGold utilizes a direct
compensation program which encourages Internet users to establish CyberGold
accounts (whereupon they become "CyberGold Members") and to read the
advertisements and other incentive and informational products available on or
through the CyberGold Site.
C. CyberGold compensates CyberGold Members for reading those
advertisements and products by "paying" to those CyberGold Members an
intangible, non-legal currency referred to as "cybergold" which is deposited in
the respective CyberGold Member's on-line account with CyberGold.
D. CyberGold intends to create and own a database (the "CyberGold
Database") containing profile information regarding each CyberGold Member,
including such CyberGold Member's name and address, demographic information,
product preferences (as provided by such CyberGold Member), as well as
historical data regarding that CyberGold Member's exposure to particular
advertisements and other products.
E. ASW is a full service marketing research firm offering leading
commercial, technological, financial and institutional clients a wide variety
of custom and syndicated research services designed to provide solutions to
complex marketing, strategy and policy problems (the "ASW Business").
F. ASW desires to provide to CyberGold certain survey and audit research
services regarding the CyberGold Members and certain analysis regarding the
data comprising the CyberGold Database, and CyberGold desires to obtain such
services from ASW, all in accordance with the terms and conditions set forth in
this Agreement.
G. ASW desires to use the CyberGold Site and have access to the
CyberGold Database to better enable ASW to conduct on the Internet the ASW
Business.
2
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties, intending to be legally
bound hereby, agree as follows:
1. Recitals: The foregoing recitals are incorporated herein by reference
thereto.
2. Term: The term of this Agreement shall commence on the date hereof and
shall continue until February 1, 2001. Thereafter, the term of this Agreement
shall automatically renew for consecutive renewal terms of one year each unless
and until either party gives to the other at least 180 days' prior written
notice that the term of this Agreement shall not so renew. Any amounts accruing
prior to the expiration or termination of the term of this Agreement and
remaining unpaid as of such expiration or termination shall remain due and
owning until fully paid.
3. Development of the CyberGold Database.
3.1 On or before August 1, 1997, CyberGold will create or cause to be
created the initial CyberGold Database after consultation with ASW. From and
after the creation of the CyberGold Database, CyberGold hereby grants to ASW,
for the term of this Agreement, a non-exclusive, nontransferable license to use,
without payment of any fee or royalty whatsoever for such right, the CyberGold
Database, but only to the extent expressly contemplated in this Agreement, most
particularly as provided for in section 5 hereof, and necessary for ASW to
conduct the ASW Business on the Internet and to carry out its obligations under
this Agreement and to obtain for itself the benefits to it contemplated in this
Agreement.
3.2 ASW acknowledges that the CyberGold Database represents and will
continue to represent the valuable, confidential and proprietary property of
CyberGold and the CyberGold Site represents the valuable property of CyberGold.
CyberGold is not by this Agreement conveying to ASW any exclusive proprietary
or other rights in the CyberGold Database or the CyberGold Site, including, but
not limited to, any patent, copyright, trademark, service xxxx, trade secret,
trade name or other intellectual property rights (collectively, the "CyberGold
Proprietary Rights"), except that ASW will have the limited rights expressly set
forth in this Agreement. Accordingly, ASW acknowledges that, except as expressly
provided for in this Agreement, ASW possesses no title to or ownership of the
CyberGold Database or the CyberGold Site or any portion thereof. ASW will use
reasonable efforts to protect the CyberGold Proprietary Rights and will not
sell, license, transfer or otherwise dispose of any of the CyberGold Proprietary
Rights.
3.3 The parties recognize the importance of accurate, complete and timely
data on the CyberGold Database. Accordingly, as an initial matter, the parties
will work together in good faith to develop a plan to "clean" the data on the
CyberGold and to maintain as an on-going matter the data on the CyberGold
Database. All manipulation of such data in connection with such "cleaning" and
maintenance will be performed solely by CyberGold or its agents.
4. Creation of the ASW Site and Establishment of a Link From the
CyberGold Site to the ASW Site and vice versa.
-2-
3
4.1 On or before August 1, 1997, ASW will create and establish its own
site on the Web with a domain name of its choosing (the "ASW Site"). The ASW
Site will be designed in a manner as consistent as is reasonable possible in
quality and user impression with the CyberGold Site, with the intent that the
ASW Site will appear to CyberGold Members as an extension of the CyberGold
Site. CyberGold will provide to ASW, at no cost to ASW, creative and technical
assistance in connection with the design and development of the ASW Site, but
ASW will undertake the creation of the ASW Site itself, at its own cost and
expense.
4.2 CyberGold acknowledges that the ASW Site will represent the valuable
property of ASW. ASW is not by this Agreement conveying to CyberGold any
proprietary or other rights in the ASW Site, including, but not limited to, any
patent, copyright, trademark, service xxxx, trade secret, trade name or other
intellectual property rights (collectively, the "ASW Proprietary Rights").
Accordingly, CyberGold acknowledges that, except as expressly provided for in
this Agreement, CyberGold possesses no title to or ownership of the ASW Site or
any portion thereof. CyberGold will use reasonable efforts to protect the ASW
Proprietary Rights and will not sell, transfer or otherwise dispose of any of
the ASW Proprietary Rights.
4.3 Within thirty days after the creation of the ASW Site, CyberGold will
establish on the CyberGold Site home an exclusive "surveys" link to the ASW
Site, and ASW will establish on the ASW Site home page an exclusive link to the
CyberGold Site, with each such link accompanied by prominent descriptive and/or
persuasive text. The parties will jointly develop, and will jointly own, the
interface between the CyberGold Site and the ASW Site and any other interface
required to accomplish the purposes of this Agreement.
5. Surveys, Audits and Analysis.
5.1 ASW will have the exclusive right to use the CyberGold Database for
the survey and analytical purposes contemplated in this Agreement; provided,
however, that ASW's access to the CyberGold Database will be electronic (i.e.,
no hard copy will be provided) and such access shall be restricted to "read
only". CyberGold shall make the CyberGold Database reasonably available to ASW
as necessary to facilitate ASW's timely performance of its obligations
hereunder and to obtain for itself the benefits contemplated under this
Agreement, subject always to the security provisions set forth elsewhere in
this Agreement.
5.2 During the term of this Agreement, ASW will perform, from time to
time and at its own cost and expense unless otherwise agreed by the parties,
surveys and audit research among the CyberGold Members and analysis of the
CyberGold Database for the benefit of CyberGold. Among the goals of such
surveys, audits and analysis by ASW will be the development of profiles and
other aggregate-level analysis of the CyberGold Members. The frequency and
extent of the services to be provided hereunder by ASW shall be determined by
the mutual agreement of the parties from time to time during the term of this
Agreement.
5.3 In connection with ASW's performance of its obligations under this
section 5, ASW will at the request of CyberGold design the research to be
undertaken, develop appropriate questionnaires to be completed by CyberGold
Members, undertake such research, question the CyberGold Members and tabulate
and analyze the results thereof. ASW will conduct all such activities in
accordance with a plan or plans theretofore prepared by ASW and
-3-
4
submitted to CyberGold. At ASW's request, CyberGold will (i) conduct some or all
of the planned surveys of CyberGold Members, if deemed appropriate in any
particular instance by CyberGold, and (ii) provide at its own cost and expense,
or that of any sponsor it may obtain, incentive compensation for responding
CyberGold Members.
CyberGold will maintain a separate redacted database containing all data
accumulated with respect to each member except identifiers for individual
members and information which may be deemed proprietary by CyberGold, if any.
Each member in the redacted database will be identified by a unique associated
ID# also associated with the members records in the main database. This database
will be made available to ASW to analyze the characteristics of CyberGold's
database for research purposes only. To the extent ASW research requires member
contact, CyberGold will match the ID#'s ASW chooses from the redacted database
and deliver the information previously withheld from the main database, for the
purpose of research only, if authorized in advance by the member directly to
CyberGold or through ASW at its site, satisfactory evidence of which is
delivered to CyberGold. CyberGold will then, at the expense of ASW, send e-mails
to the other prospective panel members requesting their approval, forwarding
information ASW requires where approval is obtained. ASW may continue the
process until it fills its panel. No research reports based on the provision of
information aforesaid will contain identifiers of any CyberGold member.
Notwithstanding anything to the contrary in this section 5.3 or elsewhere
in this Agreement, ASW will not directly or indirectly contact any CyberGold
Member without, as to each program it proposes to undertake for the creation of
Panels or otherwise (but not as to each individual contact pursuant to such
program), the prior written consent of CyberGold, which consent will not
unreasonably be withheld.
5.4 ASW shall deliver to CyberGold, at no cost or expense to CyberGold,
copies of all reports prepared by ASW for CyberGold pursuant to its obligations
herein set forth, which reports shall be reasonably acceptable as to form and
substance to CyberGold. CyberGold and ASW will jointly own all such reports, but
CyberGold shall have the use thereof without cost. The parties intend that such
reports shall be appropriately prepared for presentation to a professional
advertising industry audience. The parties contemplate that ASW will provide
such services to CyberGold at no cost to CyberGold; provided, however, that if,
in ASW's reasonable opinion, the frequency and/or complexities of such services
create an undue and unanticipated financial burden on ASW, the parties will
negotiate in good faith the equitable allocation of such costs between them.
5.5 Subject to the last sentence 5.3 above, ASW shall, from time to time,
create panels ("Panels") comprised of individuals, both CyberGold Members and
individuals who are not CyberGold Members, who voluntarily agree to serve
thereon and who express a willingness to participate occasionally in surveys.
The individuals shall have a separate and distinct contractual relationship with
ASW in respect of any such Panel, and CyberGold will not be a party thereto. In
respect of each Panel, ASW will, at its own costs and expense, conduct
enrollment surveys, build a database that includes detailed information
regarding each member of the Panel, maintain regular contact with each member of
the Panel, and otherwise maintain the Panel. When Panel members are paid
incentive compensation for participation in a survey, compensation shall be
offered, in the form of CyberGold currency, subject always to the respondent's
right to refuse it as an incentive. To the extent the members of a Panel are
-4-
5
not CyberGold Members, ASW will encourage such Panel members to become
CyberGold Members. All Panel information, survey data, databases or other
information created, collected or assembled by ASW from any such Panel will
remain the property of ASW, regardless of the future relationship between, or
status of, ASW, CyberGold, or any other parties to or agents of the CyberGold
business.
5.6 ASW may also provide research and strategic marketing services to
third parties, including without limitation advertisers on and through the
CyberGold Site, and will recruit, through CyberGold, CyberGold Members for the
Panels. CyberGold shall refer to ASW any CyberGold advertisers or content
providers requesting surveys, reporting and analysis pertaining to the
CyberGold Database, but such advertisers or content providers shall not be
required to use or retain ASW. All surveys, reporting and analysis conducted by
ASW, whether for third parties (including CyberGold clients), for publicity, or
for other ASW uses, will be conducted by ASW at no cost or expense to
CyberGold. In all of these instances, as between CyberGold and ASW, ASW shall
bear the cost of CyberGold electronic "cybergold" paid to any CyberGold Member
when that cybergold is used for respondent incentives.
5.7 ASW may create databases that combine data for reporting on an
aggregate basis only (i.e., no CyberGold Member-specific data) from the
CyberGold Database with demographic or other information lawfully available to
ASW for research, analytic, publicity or other purposes. ASW may also use the
CyberGold Database to conduct surveys for CyberGold clients at the request of
CyberGold or any CyberGold client, and to conduct surveys for other clients and
for other ASW purposes. Unless the parties agree otherwise, all such surveys
will be conducted by ASW on the ASW Site. Even if respondents to such surveys
are not then CyberGold Members, ASW will offer cybergold currency as respondent
incentive in any cases in which ASW offers financial incentives to respondents
subject to respondent's refusal. Any respondent who is not then a CyberGold
Member who accepts cybergold as an incentive will be required by ASW, as a
condition to such response, to (i) provide directly to CyberGold (or to ASW who
will transfer it to CyberGold) the information necessary to establish a
CyberGold account in such respondent's name and (ii) enter the CyberGold Site
to acquire a CyberGold password and PIN number.
5.8 Notwithstanding anything to the contrary elsewhere in this Agreement,
custom surveys or analysis based on the CyberGold Database may be conducted by
third parties, but any samples or other data drawn for this purpose from the
CyberGold Database will be drawn by ASW, which may charge such third party a
fee for drawing such data, which fee, if any, will be shared by ASW with
CyberGold as agreed. CyberGold will consult with ASW on each such request.
During the term of this Agreement, CyberGold will not sell individual
registration, transaction or other data from the CyberGold Database to
advertisers or their agents, or to any party for research or analytical
purposes, without the prior written consent of ASW, which consent shall not
unreasonably be withheld, but nothing in this section 5.8 shall be interpreted
so as to, or shall be deemed to, restrict in any way the right of CyberGold to
prepare and to deliver to third parties detailed aggregated reports based upon
or developed from the data on the CyberGold Database relating to the activity
they sponsor.
5.9 Notwithstanding anything to the contrary elsewhere in this Agreement,
CyberGold acknowledges and agrees that ASW shall not be required under this
Agreement to provide any measurement or validation analysis of traffic or
"hits" on the CyberGold Site.
-5-
6
5.10 CyberGold will be paid its cost of managing any CyberGold credit
transaction interaction on behalf of ASW or its clients, currently estimated at
approximately [***]*.
6. Reciprocal Promotion.
6.1 During the term of this Agreement, (i) CyberGold will prominently
feature ASW and its services in appropriate CyberGold public relations,
marketing and promotional materials, subject in each instance to ASW's prior
approval thereof; and ASW will prominently feature CyberGold and its services in
appropriate ASW public relations, marketing and promotional materials, subject
in each instance to CyberGold's prior approval thereof.
6.2 During the term of this Agreement, the parties will work together in
good faith to aggressively and consistently market their own and the other's
services to selected CyberGold and ASW clients and potential clients. In
connection therewith, either party may, from time to time, convene a meeting of
the parties upon 15 business days' prior notice to discuss marketing strategy,
which meeting may, at the request of either party, be telephonic. Upon any such
request, each party shall cause its representative to participate in such
meeting. Beyond such participation, neither party shall have any obligation in
respect of any such meeting.
7. Confidentiality. ASW agrees that it will maintain in confidence the
identity of, and any other information relating specifically to, any individual
CyberGold Member. Under no circumstances will ASW release or use, or suffer the
releasing or using of, any name or other information relating specifically to
any individual CyberGold Member that is obtained by ASW from CyberGold or
through its access hereunder to the CyberGold Database; provided that nothing
herein should limit ASW's contractual relationship and/or agreements with
CyberGold Members who are also members of any Panel created by ASW. ASW will
inform its employees, agents and other representatives of the restrictions set
forth in this section 7, and ASW will be responsible for any unauthorized
disclosures of information by any such employee, agent or representative.
8. Security Measures Regarding the CyberGold Database. ASW acknowledges
the importance to CyberGold and its members of maintaining the maximum security
of the content of the CyberGold Database and agrees to take all steps and
implement all procedures internally required to do so as recommended from time
to time by CyberGold.
9. Joint Participation in Product Planning, Development Marketing and
Operations.
During the term of this Agreement, CyberGold and ASW will cooperate in planning,
implementing and operating the research aspect of CyberGold's operations;
provided, however, that the foregoing shall not be construed to entitle ASW to
control or direct in any manner whatsoever the conduct by CyberGold of its
business or operations or vice versa. This cooperative effort will encompass,
among other things as may, from time to time, be agreed to between the parties,
the following:
(i) joint participation in the development of marketing and promotional
materials;
--------------
* Confidential Treatment Requested. Confidential portion
has been filed with the Securities and Exchange Commission.
-6-
7
(ii) joint participation in "co-selling" CyberGold and the ASW Business
and research programs relating thereto, including without limitation
introductions to and common sales calls on, and joint presentations to, ASW and
CyberGold clients and prospects;
(iii) the active participation of CyberGold's and ASW's technology staffs
in integrating the CyberGold Site, the CyberGold Database and other technology
with the ASW Site and any other requirements of ASW, for survey research and
analytical purposes; and
(iv) designing and implementing ASW Site pages and applications which may
from time to time be developed by ASW at its own cost and expense, whether they
are to be run on the ASW Site or the CyberGold Site, to be used for research
purposes in conjunction with the CyberGold Site.
10. Representation of Parties in Publicly Released Materials.
CyberGold and ASW will cooperate in good faith in an attempt to reach mutual
agreement on the following:
(i) how ASW and its participation under this Agreement with CyberGold will
be represented to third parties, and on where such references are to be
positioned, in materials, including promotional documents and news releases, to
be released to clients, prospects and/or the public by CyberGold; and
(ii) how and when CyberGold will be represented in reports, surveys, etc.
issued by ASW based on Internet research.
11. Note on Early Stages.
During the initial period of approximately six months, in which the "Popup"
version of the CyberGold Site will be in use, the ASW/CyberGold relationship
under this Agreement will be in an early state. ASW activities under this
Agreement during such six-month period are anticipated to include the following:
(i) Implementing interviewing software and web site;
(ii) Pilot studies & database analysis for CyberGold for purposes of
measuring the effectiveness of the advertising on the CyberGold Site,
the effect of such advertising on product awareness and the
demographics of people who read the ads;
(iii) Review of academic study;
(iv) Research product development; and
(v) Early panelist recruiting.
Links to surveys, probably hosted on the CyberGold Site at first, might be
appropriate in at least four places: following CyberGold signup, following
refusal of CyberGold signup, after
-7-
8
login of existing member, and after completion of other CyberGold business.
12. Confidentiality.
Each party acknowledges that its violation of its confidentiality or
nondisclosure obligations under this Agreement may cause irreparable damage to
the other that cannot be fully remedied by money damages. Accordingly, in the
event of any such violation or threatened violation, the injured party will be
entitled, in addition to pursuing any other remedy available to it under this
Agreement or at law, to obtain injunctive or other equitable relief from any
court of competent jurisdiction as may be necessary or appropriate to prevent
any further violations thereof.
13. Infringement.
The parties each agree that as to its respective Web site and other
intellectual property that is the subject of, or that becomes the subject of,
litigation it will defend, at its own expense, any action brought against the
other party to the extent that such action is based solely on a claim that use
of its Web site or other intellectual property, infringes a United States
patent or copyright or the trade secret or other proprietary right of a third
party, and the indemnifying party will hold the other party harmless from any
resulting losses, liabilities, damages, costs and expenses, including, without
limitation, reasonable attorneys' fees, provided that the other party provides
it with prompt written notice of such actions.
14. General Provisions.
A. Notices. Any and all notices given under this Agreement will be
in writing and will be effective (a) when mailed to the address set forth
herein (or such substitute address provided in writing) by certified or
registered mail bearing proper postage, or (b) if by other means when received.
Notices will be sent to the following addresses:
If to ASW:
Audits & Surveys Worldwide, Inc.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: H. Xxxxxx Xxxxxxx, Xx., President
If to CyberGold:
CyberGold, Inc.
0000 Xxxxxxx Xxxxxx
-0-
0
Xxxxxxxx, XX 00000
Attn: A. Xxxxxxxxx Xxxxxxxxx, President
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx
0000 Xxxxxx Xx., Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
B. Binding Effect. This Agreement will inure to the benefit of and
be binding upon ASW and CyberGold and their respective successors and permitted
assigns.
C. Non-Waiver. No delay or omission or failure to exercise any
right or remedy provided for herein will be deemed to be a waiver thereof or
acquiescence to the event giving rise to such right or remedy, but every such
right and remedy may be exercised from time to time and so often as may be
deemed expedient by the party exercising such right or remedy.
D. Captions. The captions of the sections herein are for
convenience only and do not affect in any way the scope, intent or meaning of
the provisions to which they refer.
E. Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
its conflicts of laws provisions.
F. Severability. In the event that any provision of this Agreement
is held to be illegal, invalid or unenforceable under present or future laws by
any court of competent jurisdiction, then such provision will be fully
severable and this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision were not a part hereof.
G. Attorney Fees and Costs. In the event that this Agreement is
placed with an attorney to enforce any of its material provisions, then the
prevailing party will be entitled to recover its attorneys' fees and related
costs from the other party.
H. Entire Agreement and Modification. This Agreement constitutes
the full and complete understanding and agreement of ASW and CyberGold and
supersedes all prior negotiations, understandings and agreements between the
parties related to the subject matter hereof. Except as expressly stated in
this Agreement, any waiver, modification or amendment of any provision of this
Agreement will be effective only if in a writing signed by ASW and CyberGold.
IN WITNESS WHEREOF, each party has caused its duly authorized
representative to execute this Agreement as of the day and year first above
written.
-9-
10
AUDITS & SURVEYS WORLDWIDE, INC.
By: /s/ AUDITS & SURVEYS WORLDWIDE, INC.
------------------------------------
Its: President
-----------------------------------
CYBERGOLD, INC.
By: /s/ A. XXXXXXXXX XXXXXXXXX
------------------------------------
Its: President
-----------------------------------
