Exhibit 10.40
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
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.
PARTNER AGREEMENT
GFK-ARBOR, LLC
AND
GREENFIELD ONLINE INC.
TITLE PROVISION
----- ---------
THE PARTIES
GREENFIELD ONLINE, INC. Greenfield Online, Inc., a Delaware corporation with
("GFOL, WE OR OUR") its offices at 21 River Road, Wilton, CT 06897.
GFK-ARBOR, LLC GfK-ARBOR, LLC a Delaware limited liability company
("GFK-ARBOR" YOU with its offices at One West Third Street, Media,
OR YOUR) PA 19063
THE SERVICES
PANEL BASED SERVICES GFOL has developed one of the world's leading
internet-based consumer panels (the "Panel") and will
grant GfK-ARBOR access to the Panel as described in
the Terms and Conditions attached. The GFOL panel
includes households in the US, Canada, UK, France and
Germany. The panel includes sub-panels for major
demographic groups including: auto, health &
wellness, physicians, Hispanics, B2B, IT and more.
The description of the GFOL panel and its sub-panels
is not intended to be a commitment to maintain or
increase the sub-panels described
PROGRAMMING, HOSTING GFOL's integrated survey software enables us to
AND DATA PROCESSING provide industry-leading programming capabilities.
SERVICES GFOL offers fast turnaround on even complex study
designs. GFOL's data collection systems are designed
to maximize the availability of your surveys and
speed your turnaround time. GFOL will provide
GfK-ARBOR with the Full Service and Sample Delivery
Services as described in the Terms and Conditions
attached.
Page 1 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
PROJECT TEAMS GFOL will establish a GfK-ARBOR project team (the
"ARBOR Team"), staffed at GFOL's discretion, which
will complete GfK-ARBOR projects. This Team will
become well versed in project requirements leading to
greater consistency, speed, efficiency and quality.
GFOL will maintain the Teams, subject to increases
and decreases in staffing levels, sufficient to
manage the level of project work flow while
maintaining appropriate quality levels.
ONLINE PRODUCTIVITY GFOL will provide You access to its Online
TOOLS Productivity Tools as they are available from time to
time for partners who have committed to similar
purchase levels. As of the Effective Date the
available GFOL Online Productivity Tools:
ONLINE PRICING CALCULATOR - This tool enables
GfK-ARBOR to obtain simple pricing in real time and
view GFOL panel demographics.
ONLINE PANEL COUNTS TOOL - This tool enables
GfK-ARBOR to obtain basic panel counts from the GFOL
panel.
PORTAL - This tool provides GfK-ARBOR with access to
marketing information, white papers, and relevant
GFOL information.
CONFIRMIT ONLINE REPORTING - This is the standard
Confirmit reporting tool providing near real-time
access to study counts currently provided.
These tools augment the normal work GFOL performs
with GfK-ARBOR regarding project scoping, feasibility
and pricing. They are not intended to replace it; all
final project cost and feasibility will be subject to
review by the Project Team and a written Work Order.
SALES SUPPORT JOINT SALES CALLS - At Your request, Your
sales representative will be available to conduct
joint sales calls with your account team.
SALES PRESENTATION - You will receive a GFOL-branded
PowerPoint presentation outlining our products and
services, along with the benefits your client will
receive for choosing the GFOL Panel.
SALES SUPPORT AND TRAINING - At your request, we will
provide on-site training sessions for your sales
personnel at a single location once per quarter so
they can stay up-to-date with all of the latest
capabilities that GFOL has to offer.
These sessions can be by webinar, in-person, or
conference call.
Page 2 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
MARKETING SUPPORT ONLINE MARKETING COLLATERAL - GFOL has built a
library of collateral to explain the value of online
research, the capabilities of the Greenfield Online
panel and other research products. Additionally,
Greenfield Online performs "research on research" for
the use of our partner clients. GFOL will make all of
these materials available to through a password
protected extranet through our website.
USE OF THE GREENFIELD ONLINE LOGO - We will provide
you with our logo for use in your sales and marketing
materials. Any use is subject to our prior review and
written approval.
AD HOC DISCOUNTS In consideration of GfK-ARBOR's commitment to
purchase GFOL Services exclusively during the term of
this agreement, GFOL will provide a discount of
[****]%, taken from GFOL's standard pricing levels as
they exist from time to time during the Term.
Discounts shall be applied to "Qualifying Revenue."
Qualifying Revenue shall be defined as the aggregate
of all Ad-Hoc Services purchased by GfK-ARBOR and
performed by GFOL within the calendar year, excluding
pass-through expenses such as respondent incentives
and third-party data processing costs.
TRACKING STUDY In consideration of GfK-ARBOR's commitment to
DISCOUNTS purchase Services exclusively from GFOL during the
Term of this agreement GFOL will provide discounts on
tracking work as set forth below:
Existing GfK-ARBOR Tracking Studies: All GfK-ARBOR
tracking studies being performed by GFOL as of the
Effective Date of this Agreement shall, if renewed
with the same project scope and terms, be renewed
with a [****]% discount on the current pricing.
Future Tracking Studies: You shall receive a discount
of [****]% on all new tracking studies initiated
during the Term. Discounts shall be taken from GFOL's
standard pricing levels as they exist from time to
time during the Term.
Page 3 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
REBATES In consideration of GfK-ARBOR's commitment to
purchase Services exclusively from GFOL during the
Term of this agreement, GFOL will provide a Rebate
program granting You a [****]% Rebate on all
Qualifying Revenue received by GFOL from You during
each calendar year of the Term. For the purposes of
calculating Qualifying Revenue for Rebates pursuant
to this Section, GFOL will include all revenue from
Services including ad-hoc, tracking, and template
product work. Rebates shall be given on Qualifying
Revenue after giving effect to the discounts provided
above and shall not include pass-through expenses
such as respondent incentives and third-party data
processing costs. The rebate program runs on a
calendar year basis and starts accruing on Qualifying
Revenue from the beginning in each new calendar year.
At the conclusion of 2005 there will be an additional
one-time rebate of $[****] to be paid with the rebate
earned for the 2005 calendar year.
PRICE Current GFOL pricing, before applying any discounts
for Full Services attached hereto as Exhibit A. The
prices listed on Exhibit A shall remain in effect for
one (1) year. For Services that do not meet the
pricing specifications listed on Exhibit A, GFOL will
price the Service in the ordinary course of business
and then apply the discount.
MONTHLY UPDATES GFOL will provide GfK-ARBOR with monthly updates of
Qualifying Revenue as calculated for both the
Discount program and the Rebate program.
PREMIER PARTNER [****]. This paragraph may not be construed as a
PRICING "most favored nations clause" which may be measured
on an individual project basis, as GfK-ARBOR
recognizes that there are events and circumstances at
the individual project level that may cause GFOL to
grant limited or one time discounts at a more
favorable level.
VIDEO CONFERENCING Recognizing the benefits that geographically
dispersed organizations have received from the use of
video we feel a system would have a beneficial effect
on the working relationship between GFOL and the
GfK-ARBOR Team. GFOL will reimburse ARBOR-GfK for the
purchase of a Polycom video conferencing system for
use by GfK-ARBOR at its Minneapolis office while
conducting business between our companies. The
maximum amount to be reimbursed to You will be
$[****], inclusive of tax and shipping. GFOL will not
reimburse GfK-ARBOR for any costs associated with
internet access or other services necessary to
conduct video conferencing on an ongoing basis.
Page 4 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
EXCLUSIVITY During the Term of this Agreement ARBOR will purchase
the Services exclusively from GFOL, subject to the
exceptions described below.
ARBOR shall be entitled to purchase the Services from
sources other than GFOL if:
(a) ARBOR's client or other end user specifies that
another source be utilized;
(b) GFOL is unable to satisfy the project's
requirements, including those related to price,
sample size, incidence, and/or delivery time. If the
project's requirements are subsequently changed ARBOR
must again offer the project to GFOL before offering
it to another source. In that case GFOL must notify
ARBOR that it accepts the revised requirements within
the time exigencies established by the client's
needs, or ARBOR may offer the project to another
source.
PAYMENT TERMS All invoices are due within thirty (30) days of the
invoice date. All amounts outstanding beyond thirty
(30) days of the invoice date will be subject to a
finance charge of 1.5% per month. All amounts due
under a Work Order (subject to increases as a result
of changes in specifications such as study length,
incidence, delivery time, and number of respondents)
will be invoiced upon completion of the project. In
the case of tracking studies requiring the periodic
delivery of data, GFOL will invoice a pro-rated
amount of the entire study cost with each delivery of
data. You agree that two-thirds of the total project
cost, or pro-rated part thereof will be earned by
GFOL upon the programming of the survey and its
distribution to the field. A 2% discount may be taken
if You pay the entire cost of the study 10 days from
the invoice date.
TERM The Term of this Agreement shall be one (1) year (the
"Initial Term") beginning January 1, 2005 (the
"Effective Date"). This Agreement shall automatically
renew (each such term a "Renewal Term") for
successive periods of 1 year, unless either party
gives the other written notice of its intention not
to renew at least sixty (60) days prior to the
expiration of the Initial Term or Renewal Term as the
case may be. Discounts and rebate levels will reset
at the start of each calendar year.
TERMINATION FOR This Agreement may be terminated for a material
BREACH breach upon thirty (30) days written notice from the
non-breaching party if the breach is not cured during
such notice period.
OTHER PROVISIONS This Agreement is subject to the Terms and Conditions
and Exhibits attached, which are incorporated by
reference.
Page 5 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
*****Signature Pages Follow*****
Page 6 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
IN WITNESS WHEREOF, GfK-ARBOR, Inc. and Greenfield Online, Inc. have caused
duplicate originals of this Agreement to be executed on the date(s) set forth
below:
GfK ARBOR Research, Inc. Greenfield Online, Inc.
By Joe Zoll By: Dean A. Wiltse
--------------------------------- ----------------------------------
Title: Managing Director Title: CEO
------------------------------ -----------------------------
Date: 1/14/05 Date: 1/25/05
------------------------------ -----------------------------
Page 7 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
TERMS AND CONDITIONS
1. Description of Services.
1.1. Panel Based Services
1.1.1. Full Service. GFOL will provide You access to GFOL's Panel and other
sample sources, along with a dedicated team of GFOL Client Services staff. GFOL
shall program Your research surveys and distribute invitations to the
appropriate sample source (e.g., GFOL's online panels and other sample sources
or sample sources supplied by You), gather the quantitative marketing research
data and deliver it to You in untabulated form. GFOL reserves the right to
reject any survey on the grounds that it contains profane, obscene,
discriminatory, or otherwise objectionable material. The Services shall be
subject to GFOL's Privacy Policy as published on its website from time to time.
Each individual survey will be the subject of a written Work Order which shall
incorporate the Terms of this Agreement and which will contain terms regarding
sample size, incidence, delivery time, price, and other deliverables.
1.1.2 Sample Delivery. 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 Your computer
systems and servers or on the computer systems and servers maintained by others
but under Your control (the "Sample Services"). Potential Respondents shall be
recruited from the Panel and other sample sources GFOL's obligation to direct
Sample to Your surveys is subject to its determination that it has sufficient
appropriate Sample and that it can meet the delivery and other terms established
by You as well as Your compliance with the provisions of Section 1.2. Each
instance where You order the Sample Services will be the subject of a written
Work Order which shall incorporate the Terms of this Agreement.
1.2. Performance Covenants. During the Term of this Agreement, You agree to
maintain the following guidelines and practices during the conduct of any such
survey using the Sample Services.
1.2.1. Approval of Surveys. Prior to the delivery of any Potential Respondents,
GFOL must review and approve each survey. GFOL reserves the right to reject any
survey on the grounds that it is too long or complex, contains profane, obscene,
hateful, discriminatory, or otherwise objectionable material, or otherwise fails
to meet the guidelines, rules, or regulations published by GFOL from time to
time.
1.2.2. Approval of Incentive Program. Prior to the delivery of any Potential
Respondents, GFOL must review and approve the incentive program for each survey.
GFOL reserves the right to reject any survey on the grounds that in its opinion
the incentive offered to Potential Respondents is insufficient to attract
qualified respondents. In the case of studies where Potential Respondents are
Physicians, healthcare professionals or other highly compensated respondents, or
in other circumstances at GFOL's discretion, Honoraria or incentives will be
invoiced by GFOL and paid by You prior to the start of the project. In certain
instances at GFOL discretion, Honoraria or incentive programs will be managed by
a third party contractor pursuant to a contract directly between you and that
contractor. You agree that this contractor is fully independent and is in no way
an affiliate of GFOL. GFOL assumes no responsibility for and You hereby release
and hold GFOL harmless from, any claims, failures or breaches on the part of
this third party contractor.
1.2.3. Qualification and Return of Respondents. As GFOL directs Potential
Respondents to Your surveys it will mask their email address and attach a unique
Respondent identification number. All surveys performed using the Panel Based
Service must qualify each Potential Respondent within the first ten (10)
questions. All Respondents who do not qualify will be immediately routed back to
a URL designated by GFOL. All Respondents who complete one of Your surveys must,
at the conclusion of the survey, be routed back to a URL designated by GFOL.
1.2.4. Approval of Systems - Uptime. You shall disclose the technical and
performance specifications of the 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. You will maintain uptime of
Your systems at 99.5%at all times when GFOL is directing Potential Respondents
to You, and comply in all respects with the terms and conditions of the Service
Level Agreement attached as Exhibit E. GFOL reserves the right to limit the
number of Potential Respondents sent to You based on its assessment of the
capacity of Your software and computer systems. If You experience any downtime
or technical difficulties that result in Your 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"), You shall immediately notify
GFOL so it may cease directing Sample to You. In any case where You fail to
notify GFOL of any Technical Difficulty within 15 minutes of its occurrence, You
will be liable (i) in the case of the Panel Based Sample Delivery Service for
the cost of Sample for the entire duration of the Technical Difficulty as if
eighty percent (80%) of the Potential Respondents who visited Your site during
the duration of the Technical Difficulty completed and qualified for the survey
to which they were directed, provided, however, that if the assumed incidence of
Potential Respondents for any survey affected by a Technical Difficulty is
greater than eighty percent (80%), then GFOL will charge You for Sample
delivered at such higher percentage.
1.2.5. Real-Time Reporting. You shall maintain a system of "real-time reporting"
which shall allow GFOL
Page 8 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
personnel access to Your 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 Your surveys: (i) the number of Potential Respondents that have been directed
to each survey, (ii) the number of Potential Respondents that have completed
each survey, (iii) the number of Potential Respondents that have taken each
survey and whose profile qualifies their responses as acceptable. Should Your
real-time reporting experience any downtime or technical difficulties while GFOL
is delivering Sample to any of Your surveys, that results in GFOL being unable
to access the information required by this Section 1.2.5, then GFOL shall have
the following options: (a) to discontinue the delivery of Potential Respondents
to any or all of Your surveys, or (b) to continue to deliver Potential
Respondents to Your surveys and charge You as if eighty percent (80%) of the
Potential Respondents directed to Your surveys during the duration of the
Technical Difficulty completed and qualified for the survey to which they were
directed, provided, however, that if the assumed incidence of Potential
Respondents for any survey is greater than eighty percent (80%), then GFOL will
charge You for Sample delivered at such higher percentage.
1.2.6. No Collection of Personally Identifiable Data. You will not collect or
attempt to collect any Personally Identifiable Information from any Potential
Respondent directed to Your sites and surveys by GFOL. Personally Identifiable
Information includes any information that would allow You to identify a
Potential Respondent at any time in the future, including, but not limited to,
name, address, and email address. Except as agreed to by GFOL in connection with
the delivery of incentive payments to respondents and with respect to "session
cookies," You will not append cookies or other electronic tags to the browsers
of any Potential Respondent. You shall abide by all CASRO guidelines for online
marketing research.
1.2.7. No Recruitment. You 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 You to contact, or allow any other
party to contact, any Potential Respondent at any time in the future.
1.2.8. Generic Survey Template. Prior to GFOL directing any Potential
Respondents to Your surveys, You must (i) remove any and all of Your Business
Marks and any reference to You or Your parents or 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, and (ii) remove any
similar references from the URLs of all of Your surveys.
1.2.9. Help Requests. All help requests initiated by Potential Respondents must
be directed to help@greenfieldonline.com. GFOL will give You prompt notice of
the help requests along with the nature of the service issues. You will
designate a help resource to work with Greenfield Help to address the service
issues raised by these help requests. You will work diligently to address all
help requests, and GFOL reserves the right to stop delivering Potential
Respondents to any and/or all of Your surveys until the issues which had given
rise to the help requests have been resolved to GFOL's satisfaction.
1.2.10. Privacy Policy and COPPA. During the Term of this Agreement, You shall
develop and maintain a privacy policy and comply with its terms and the
provisions of the Children's Online Privacy Protection Act and all other
applicable privacy laws, rules, and regulations.
1.3. Incentives: GFOL charges incentives in connection with each study conducted
by its clients. Incentives are designed to promote survey participation across
all studies it conducts. GFOL applies incentive payments at its discretion to
promote survey participation and to ensure the completion of all pending
studies.
2. Ownership of Sample Sources/Methodologies: You agree that the Panel and the
identities and demographic information of the panelists, the Services, software,
technology, and research methodologies (other than those supplied by You or Your
clients) used by GFOL to render the Services are and shall be solely owned by
GFOL and constitutes its confidential, proprietary and trade secret information.
You agree that You shall not acquire any interest in and to the Services or the
sample sources, software, technology, or such methodologies as a result of this
Agreement.
3. Rebate or Discount:
3.1. Rebates are determined on Qualifying Revenue achieved by GfK-ARBOR in each
year of the Term. Qualifying Revenue shall include all Services purchased by
GfK-ARBOR, and performed and delivered by GFOL within the Term Year, and shall
not include pass-through expenses such as respondent incentives and third party
data processing costs. Rebates will be paid within 60 days of the end of the
Term Year in which they are earned.
4. Trademark Usage: Should the parties agree to use each other's Business Marks,
they will enter into an addendum to this Agreement.
5. Payment Terms/Stopped Work: All invoices are due within thirty (30) days of
the invoice date. All amounts outstanding beyond thirty (30) days of the invoice
date will be subject to a finance charge of 1.5% per month. All amounts due
under the Work Order (subject to increases as a result of changes in
specifications such as study length, incidence, delivery time, and number of
respondents) will be invoiced upon completion of the project. In the case of
tracking studies requiring the periodic delivery of data, GFOL will invoice a
pro-rated amount of the entire study cost with each delivery of data. You agree
that two-thirds of the total project cost, or pro-rated part thereof will be
earned by GFOL upon the programming of the survey and its distribution to the
field. You agree to pay all taxes imposed by any jurisdiction or governmental
entity in connection with the transactions
Page 9 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
contemplated by this Agreement, whether sales, use, excise or otherwise, except
those on GFOL's income.
5.1. Stopped Work:
5.1.1. Full Service. Unless otherwise agreed to in the addendum for a specific
study, should any study be cancelled or postponed, You agree to compensate GFOL
for: (i) two-thirds of the contract price for all Services where GFOL has
programmed the survey and placed it into the field, or the reasonable value of
all work performed by GFOL through the effective date of such cancellation,
whichever is greater, or (ii) where GFOL has not programmed the survey and
placed it into the field, the reasonable value of all work performed by GFOL
through the effective date of cancellation. In the case of tracking studies that
are terminated within the first 30 days after programming is complete, You will
pay, in addition to all other fees, a termination fee equal to any unpaid
programming costs.
5.1.2. Sample Services. Unless otherwise agreed to in the addendum for a
specific study, should You desire to cancel or postpone any Sample Services, You
shall compensate GFOL for (i) in the case of Sample Services cancelled or
postponed within five (5) days of their scheduled start date, an amount equal to
twenty percent (20%) of the contract price, or (ii) for Sample Services already
underway, the cost of all qualified Respondents delivered by GFOL to a point in
time one (1) hour after receipt of a written or emailed notice of cancellation,
provided that notice of cancellation is delivered by You Monday through Friday
(excluding federal and Connecticut statutory holidays), during normal business
hours. If notice of cancellation is not delivered during normal business hours,
the notice shall be deemed to have been delivered as of the beginning of the
next succeeding business day.
6. Term of Contract and Termination:
6.1. Term. The Term of this Agreement is set forth on the cover pages.
6.2. Termination for Breach. This Agreement may be terminated for a material
breach upon thirty (30) days written notice from the non-breaching party if the
breach is not cured during such notice period.
6.3. Effect of Termination. Upon a termination as provided in Sections 6.2 by
GFOL as a result of Your Breach or by You without cause, all rights and duties
of the parties toward each other shall cease except those intended to survive
such termination (including, but not limited to, Sections 1.2, 2, 4, 5 & 7-16),
provided that You shall be obliged to pay, within thirty (30) days of the
effective date of termination, (i) all amounts owing to GFOL for unpaid and
cancelled Services as of the date of termination and (ii) the Reconciliation
Payment as defined below.
6.3.1. Reconciliation Payment. In the event of the termination of this Agreement
by GFOL pursuant to Section 6.2 GfK-ARBOR will be liable to GFOL for an amount
equal to the difference between the discounts it received under the Discount
Program in effect, and the discounts they would have received based on the
levels of Qualifying Revenue set forth in the table below.
Example: If all pricing for the year has been discounted at the [****]% level
but only $[****] of Qualifying Revenue had been received as of effective date of
termination, GfK-ARBOR would owe GFOL $[****] x [****]%.
QUALIFYING REVENUE PER DISCOUNT LEVEL
CALENDAR YEAR
- ----------------------------- -----------------------
$[****] [****]%
$[****] [****]%
$[****] [****]%
$[****] [****]%
$[****] [****]%
$[****] [****]%
6.4. Notices. All notices required or permitted under this Agreement shall be in
writing, reference this Agreement and be deemed given one (1) day after deposit
with a commercial overnight carrier for overnight delivery, with written
verification of receipt. All communications will be sent to the following
addresses:
Greenfield Online With a Copy to
Dean A. Wiltse, CEO Jonathan A. Flatow
Greenfield Online, Inc. Greenfield Online, Inc.
21 River Road 21 River Road
Wilton, CT 06897 Wilton, CT 06897
203-846-5700 T 203-846-5721
dwiltse@greenfield.com F 203-846-5749
jflatow@greenfield.com
GfK ARBOR, Inc. With a Copy to:
John Wittenbraker, President Joe Zall, CFO
GfK ARBOR, Inc. GfK ARBOR, Inc
One West Third Street One West Third Street
Media, Pennsylvania 19063 Media, Pennsylvania 19063
T 610-566-8700 T 610-566-8700
F 610-566-9189 F 610-566-9189
jwtt@arborinc.com jzoll@arborinc.com
7. NO GUARANTEES. There are no guarantees whatsoever made by GFOL as to the
results of the services GFOL will provide. 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, promises, 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.
Page 10 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
8. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, OR IN A
SEPARATE WORK ORDER, 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.
9. INDEMNIFICATION.
9.1. By GFOL. 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 GFOL or a breach by GFOL of a representation and/or
warranty made in this Agreement, and subject to the provisions of Section 11,
GFOL shall (i) indemnify You against any liability, cost, loss, or expense of
any kind; and (ii) hold You harmless and save You from any liability, cost,
loss, or expense of any kind. You 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, GFOL must
approve any settlement of any such claim, demand, or action to the extent that
such settlement imposes any restrictions on or requires GFOL to contribute
financially to such settlement.
9.2. By You. 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 You or a breach by You of a representation and/or warranty
made in this Agreement, You shall (i) indemnify GFOL against any liability,
cost, loss, or expense of any kind; and (ii) hold harmless GFOL and save it from
any liability, cost, loss, or expense of any kind. GFOL 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, You must approve any settlement of any such claim, demand, or action to
the extent that such settlement imposes any restrictions on or requires You to
contribute financially to such settlement.
10. Injunctive Relief. You agree that the breach of Your obligations under
Sections 1.2 and 4 will cause irreparable harm to GFOL. 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, GFOL
shall be entitled to specific performance and injunctive or other equitable
relief, without the necessity for the positing of any bond or security, as a
remedy for any such breach.
11. Limitation of Liability: Research data collected by GFOL will be obtained
and produced in accordance with generally accepted standards of the research
industry. GFOL shall not be liable to You for lost profits or revenues or other
economic loss, including consequential, special, or other similar damages,
arising from or related to the use by You of the data provided by GFOL to the
client. Other than as expressly stated, GFOL disclaims any other warranties,
express, implied, or otherwise, regarding the accuracy, completeness, or
performance or fitness of merchantability of the data or deliverables. Liability
of GFOL for any claim made by the client shall be limited to $10,000 or the
amount of the fees paid to GFOL, whichever is less. No action arising out of
this agreement (other than an action by GFOL for the recovery of fees owed by
the client to GFOL) may be brought more than one year after the cause of action
first arose.
12. Audit Rights; Payment for Audit; Confidentiality. INTENTIONALLY OMMITTED
13. Prevailing Party. If any legal action or other proceeding is brought in
order to enforce the Terms of this Agreement or collect monies due, 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.
14. Assignment and Transfer. 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 may assign this Agreement
to any successor corporation by merger, acquisition, or otherwise.
15. Governing Law Choice of Venue. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Connecticut 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 the District of
Connecticut.
16. Disclosure.
16.1. Definition. "Confidential Information" means all information disclosed by
a Disclosing Party, whether of a technical, business or any other nature
(including, by way of example and not limitation, trade secrets, inventions,
know-how and information relating to technology, customers, business plans,
promotional and marketing activities, finances and other business affairs), that
has been or is disclosed, whether verbally, electronically, visually or in a
written or other tangible form, which is either identified as confidential or
proprietary or should be reasonably understood to be confidential or proprietary
in nature. For the purposes of this Agreement, Confidential Information shall
also include (a) the fact that discussions or negotiations are taking place
between the Parties (b) any of the terms, conditions or other facts with respect
to any such discussions or negotiations, including the status thereof or the
cessation of discussions or negotiations between the Parties, and (c) the fact
that this Agreement exists or that Confidential Information has been or may be
made available to the Parties.
16.2. Confidentiality. A Receiving Party shall not disclose Confidential
Information in any manner to any third
Page 11 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
party, except its employees, directors, officers, and financial and legal
advisors (i) whose duties justify access to such Confidential Information, (ii)
who have a need to know such Confidential Information, and (iii) who are bound
by a non-disclosure agreement or confidentiality obligations consistent with
this Agreement. A Receiving Party shall not use, in whole or in part,
Confidential Information without the prior written consent of the Disclosing
Party except for the Purpose of this Agreement as set forth above. A Receiving
Party shall inform its employees of the limitations on disclosure and use
imposed by this Agreement. In the case of any other third party (including
consultants), disclosure is permitted only after such third party has executed a
nondisclosure or confidentiality agreement with respect to the Confidential
Information no less stringent than this Agreement. A Receiving Party shall
notify the Disclosing Party immediately in the event the Receiving Party learns
of any unauthorized possession, use or knowledge of the Confidential Information
or materials containing Confidential Information and will cooperate with the
Disclosing Party in any proceeding against any third persons necessary to
protect the Disclosing Party's rights with respect to the Confidential
Information.
16.3. Exceptions: The obligations set forth in Section 15 of this Agreement
shall not apply to information that is:
16.3.1. already known to or otherwise in the possession of the Receiving Party
at the time of receipt from the Disclosing Party and that was not so known or
received in violation of any confidentiality obligation; or
16.3.2. publicly available or otherwise in the public domain prior to disclosure
by the Receiving Party; or
16.3.3. rightfully obtained by Receiving Party from any third party who did not
acquire or disclose such information by a wrongful or tortious act; or
16.3.4. developed by the Receiving Party independent of any disclosure
hereunder, as evidenced by written records; or
16.3.5. required to be disclosed by a court, administrative body of competent
jurisdiction, government agency or by operation of law.
16.4. No Liability. Notwithstanding the foregoing, the Receiving Party shall not
be liable for the disclosure or use of Confidential Information disclosed
pursuant to the order of a court, administrative body of competent jurisdiction,
government agency or by operation of law, provided that Receiving Party shall
notify the Disclosing Party prior to such disclosure and shall cooperate with
the Disclosing Party in the event the Disclosing Party elects to legally
contest, request confidential treatment, or otherwise avoid such disclosure.
16.5. No License: Nothing in this Agreement shall be construed as granting a
Receiving Party whether expressly, by implication, estoppel, or otherwise, any
license, right, title or interest in any Confidential Information received from
the Disclosing Party, or use any patent, trademark, copyright, know-how, or
similar right now or hereafter owned or controlled by the Disclosing Party.
16.6. Return of Confidential Information: All Confidential Information in
tangible form that has been disclosed to or thereafter created, whether by copy
or reproduction, by a Receiving Party shall be and remain the property of the
Disclosing Party. All such Confidential Information and any and all copies and
reproductions thereof shall, within fifteen (15) days of written request by the
Disclosing Party, be either promptly returned to the Disclosing Party or
destroyed at the Disclosing Party's written direction. In the event of such
requested destruction, the Receiving Party shall provide to the Disclosing Party
written certification of compliance therewith within fifteen (15) days of such
written request.
17. Counterparts: This Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Page 12 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.
(GREENFIELD ONLINE LOGO) Greenfield Online, Inc.
21 River Road, Wilton, CT 06897
tel: 203.834.8585 fax: 203.834.8686
EXHIBIT A
PRICE Full Service
[****] [****]
--------
[****] [****] [****] [****]
-----------------------------------
[****] [****] [****] [****]
[****] [****] [****] [****]
[****] [****] [****] [****]
-----------------------------------------------
[****]
[****]
[****]
[****]
Sample Only
[****] [****]
--------
[****] [****] [****] [****]
-----------------------------------
[****] [****] [****] [****]
[****] [****] [****] [****]
[****] [****] [****] [****]
-----------------------------------------------
[****]
Page 13 of 13
The Terms and Conditions of this document, all attachments, and any future
amendments, Work Orders or addenda are Confidential Information and may not be
disclosed, reproduced, or reprinted by GFK-ARBOR, without the express prior
written consent of Greenfield Online, Inc.