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EXHIBIT 10.13
RESEARCH SERVICES AGREEMENT
This AGREEMENT is made and entered as of August ___, 1999, by and
between The Gallup Organization, Inc. ("Gallup") and @xxxx.xxx ("@plan").
WHEREAS, Gallup has historically provided @plan with certain research
services for profiling the United States population of adults who use the World
Wide Web (the "Web"); and
WHEREAS, @plan desires to engage Gallup and Gallup desires to be engaged
to provide similar research services to @plan for profiling the U.S. population
of adults who use the Web or the Internet (as defined below) for retail
transactions.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and other good and valuable consideration the receipt and
sufficiency of which is acknowledged by this Agreement, Gallup and @plan agree
as follows:
1. Research Services. In cooperation with @plan, Gallup shall prepare a
system of survey research designed to provide @plan with statistically reliable
data for profiling the United States population of adults who use the Web or any
other global telecommunications network facilities or applications now known or
developed in the future as the parties may jointly agree to study (collectively
the "Internet"), for retail transactions (the "Retail Transaction Vertical").
Gallup shall provide all necessary data collection and survey research services
that the parties shall jointly deem necessary for the Retail Transaction
Vertical from time to time during the term hereof (the "Research Services"). The
scope of the Research Services to be performed under this Agreement and the
descriptions and schedule of deliverables are set forth in the attached Exhibit
A. Modifications to the scope of the Research Services or deliverables shall
require a signed Letter of Authorization. A form Letter of Authorization is
attached as Exhibit B.
2. Fees. @plan shall pay to Gallup for the services rendered under this
Agreement, fees in the amounts as set forth on Exhibit C attached hereto,
subject to adjustment during the term hereof as mutually agreed to by the
parties; provided, however, that the fees (not including incentive payments) for
providing quarterly surveys during the term of this Agreement shall not increase
by more than the annual percentage increase during the immediately preceding
year in the Consumer Price Index-All Consumers (All Items)-United States City
Average, as compiled by the United States Department of Labor. For each
quarterly survey, 50% of the fees shall be due and payable by @plan prior to the
commencement of that quarter's survey and the balance shall be due and payable
within 30 days of completion of 50% of the total number of interviews to be
completed during that quarterly survey. @plan shall also pay to Gallup all
amounts that Gallup commits to provide, as estimated on Exhibit C, to survey
respondents it recruits as incentives for completing the surveys. The moneys
paid for any incentives shall be paid by @plan before the letters to the
recruited respondents are sent. Any increase in the amount committed by Gallup
as incentives which in the aggregate exceeds 10% of either the estimate set
forth on Exhibit C or the amount paid in incentives in the course of the
immediately preceding quarterly survey, as applicable, shall only be made with
the prior written consent of @plan.
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3. Term and Termination. Gallup shall provide the Research Services for
a term ending August __, 2009, provided @plan shall have the right to terminate
this Agreement on any anniversary date of the date hereof (an "Anniversary
Date") prior to August __, 2009 by delivering written notice of termination to
Gallup 90 days prior to such Anniversary Date. Either party may terminate this
Agreement if the other makes an assignment for the benefit of creditors, files a
voluntary petition in bankruptcy or seeks or consents to any reorganization or
similar relief under any present or future bankruptcy act or similar law, or is
adjudicated bankrupt or insolvent, or if a third party commences any bankruptcy,
insolvency, reorganization or similar proceeding involving the other.
4. Exclusivity. During the term of this Agreement, Gallup shall conduct
Exclusive Research Services (as hereinafter defined) exclusively on behalf of
and for the benefit of @plan. For purposes of this section, "Exclusive Research
Services" shall be defined as any and all services including and related to the
telephone recruitment of a survey population of Internet users and the
collection of data from such population in any form, including by means of an
online survey, for use in syndicated marketing research or database products
related to retail transactions on the Internet. Exclusive Research Services
shall not include online or Internet research for clients who do not incorporate
the research in a syndicated database product.
In the event that the payments received by Gallup from @plan for
Research Services pursuant to this Agreement in any calendar year is less than
90% of the payments received in the prior calendar year pursuant to this
Agreement (excluding any start up costs, including, without limitation, any
pre-test, base wave or initial survey costs), the exclusivity provisions of this
paragraph 4 shall terminate with respect to the Retail Transaction Vertical.
5. Ownership. Gallup agrees that all research and any other work Gallup
has performed or may perform, and any and all resulting work product and data,
in connection with the Research Services provided pursuant to this Agreement
shall be the exclusive property of @plan.
6. Confidential Information.
a. Each party acknowledges that it may be exposed to confidential
and proprietary information belonging to the other party or relating to its
affairs, including, without limitation, customer lists, business plans,
marketing plans and strategies, financial information, product or service
information and other materials expressly designated or marked as confidential
("Confidential Information"). Confidential Information does not include (i)
information already known or independently developed by the recipient; (ii)
information in the public domain through no wrongful act of the party, or (iii)
information received by a party from a third party who was free to disclose it.
b. Each party agrees that during the term of this Agreement and
at all times thereafter it shall not use, commercialize or disclose the other
party's Confidential Information to any person or entity, except to its own
employees having a "need to know". Each party shall use at least
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the same degree of care in safeguarding the other party's Confidential
Information as it uses in safeguarding its own Confidential Information, but in
no event shall a party use less than due diligence and care.
7. Injunctive Relief. The parties acknowledge that violation by one
party of the provisions of Section 4, Section 5 or Section 6 would cause
irreparable harm to the other party not adequately compensable by monetary
damages. In addition to other relief, it is agreed that preliminary and
permanent injunctive relief shall be available without necessity of posting bond
to prevent any actual or threatened violation of such provisions.
8. Approval of Use of Gallup Name. The parties agree that the Gallup
name may not be used in any advertising or promotional materials in support of a
particular product, service, or point of view other than for the purpose of
informing the recipient that Gallup conducted the survey research portion of the
Retail Transaction Vertical database. Public references to Gallup research
findings that support a particular product, service, or point of view are
similarly prohibited. Both parties agree that @plan may put the following
statement in advertising and promotional materials: "The survey research
component of this database was conducted by The Gallup Organization."
9. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Connecticut applicable to agreements entered into
and wholly performed in Connecticut.
10. Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other party.
11. Entire Agreement; Severability. This Agreement sets forth the entire
understanding between the parties with respect to the Research Services. In the
event of any conflict between the terms and conditions which appear in this
Agreement and any purchase order or other document under this Agreement, the
terms and conditions of this Agreement shall control. The invalidity, illegality
or unenforceability of any one or more provisions of this Agreement shall in no
way affect or impair the validity, legality or enforceability of the remaining
provisions, which shall remain in full force and effect. No waiver by either
party of any breach, default or violation of any term, warranty, representation,
agreement, covenant, condition or provision of this Agreement shall constitute a
waiver of any subsequent breach, default or violation of the same or other term,
warranty, representation, agreement, covenant, condition or provision.
12. Amendments. No amendment, modification, termination or waiver of any
provision of the Agreement shall be effective unless that same shall be in
writing and signed on behalf of the nonrequesting party , and then such consent
shall be effective only in the specific instance and for the specific purpose
for which it is given.
13. Notices. All notices and other communications from either party to
the other under this Agreement shall be in writing and shall be deemed given
when delivered personally, by courier
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service or when deposited in the U.S. Mail, certified or registered mail, return
receipt requested, postage prepaid and properly addressed to:
Gallup: The Gallup Organization
000 Xxxxx 00xx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. X'Xxxxx
@plan: @xxxx.xxx
Three Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
14. No Third Party Beneficiaries. This Agreement shall not be deemed to
give any right or remedy to any third party whatsoever unless that right or
remedy is specifically granted to the third party by the express terms of this
Agreement.
IN WITNESS WHEREOF, Gallup and @plan have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
THE GALLUP ORGANIZATION, INC:
By: /s/ Xxxxxx X. X'Xxxxx
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Title: General Counsel and Corporation Secretary
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@XXXX.XXX
By: /s/ Xxxx X. Xxxxxx
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Title: CEO
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EXHIBIT A
PROJECT DETAIL
The Gallup Organization will supply @plan with approximately 15,000
cases of data each quarter based on an internet survey running approximately 45
minutes. The data will be based on a random digit dial telephone survey that
screens for qualified internet users. Data import will include various data
checking procedures to ensure that accurate data is provided to @plan. All
respondent- identifying information will be removed from the data provided to
@plan in the normal course of providing the Research Services under this
Agreement. Notwithstanding the foregoing, @plan shall have access to
respondent-identifying information of those respondents who agree to be
recontacted at all times and upon request shall take delivery of all such
respondent-identifying information; provided, however, @plan agrees to use this
information only in furtherance of its operations and, therefore, will not sell
or otherwise transfer ownership of the respondent data to any third party.
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EXHIBIT B
LETTER OF AUTHORIZATION
This Letter of Authorization adds to, modifies, or otherwise amends that
certain Research Services Agreement between @plan and Gallup, dated , with
regard to the following Research Services set forth below to be provided for the
Retail Transaction Vertical.
1. The following constitutes the Research Services or deliverables under
this Research Services Agreement ("Additional Services"):
2. The pricing for the Additional Services, exclusive of expenses and
costs otherwise payable under the Research Services Agreement, shall be as
follows:
3. Gallup will xxxx for Additional Services as follows:
4. Except as specifically amended by this Letter of Authorization, all
the terms and conditions of the Research Services Agreement shall remain in full
force and effect. This Letter of Authorization shall be effective upon complete
execution and receipt by Gallup's Contracting Officer. Gallup shall have no
obligations to initiate work on the Additional Services, nor shall it be
responsible for any project timeliness for the Additional Services, until this
Letter of Authorization becomes effective.
If the foregoing terms and conditions meet with your understanding and
approval, please indicate Client's acceptance and agreement by signing this
Letter in duplicate and returning one original to the undersigned.
THE GALLUP ORGANIZATION @XXXX.XXX
By: By:
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PRINT NAME: PRINT NAME:
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TITLE: TITLE:
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DATE: DATE:
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