EXHIBIT 10.33 Service Agreement - Knowledge Networks, Inc.
AGREEMENT FOR RECRUITMENT SERVICES
This Agreement for Recruitment Services (this "Agreement") is entered into as
of March 15, 2003 (the "Effective Date"), between the Datascension, Inc.,
California corporation with its principal place of business at 145 S. State
College Blvd., Suite 350, Brea CA 92821 ("Datascension"), and Knowledge
Networks, Inc., a Delaware corporation with a principal place of business at
1360 Willow Road, Menlo Park, CA 94025 ("Knowledge Networks").
WITNESSETH:
WHEREAS, Datascension represents that it is equipped and qualified to perform
the work as specified herein; and
WHEREAS, Knowledge Networks desires Datascension to provide certain survey and
household recruitment services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein it is mutually agreed by and between the respective
parties as follows:
1. SCOPE OF WORK
1.1 Datascension shall perform the Work (the `Work") as set forth in and
substantially in accordance with the statement of work, attached hereto as
Exhibit A and made part of this Agreement.
In addition to the statement of work attached as Exhibit A, the following are
explicit deliverable targets to be used for evaluation of Datascension's
performance:
a) Replicates will be released by Datascension within one day of the
case release schedule provided by Knowledge Networks.
b) Replicates will be closed within eight weeks of their fielding to
CATI, following the protocol established in Exhibit B, attached
hereto and made Part of this Agreement.
c) Datascension shall mail the "May I send you some information"
packets within two (2) business days from the date-of-request by
the respondent.
d) Datascension will ensure that all data files are delivered on or
before 11:00 AM. Pacific time each day.
e) Datascension will make every effort to obtain a 60 percent
response rate according to the AAPOR standard (Response Rate No.
3).
1.2 Datascension shall furnish the facilities, equipment, personnel,
services and all other necessary and related items for the performance of the
Work. Datascension warrants that the performance of the Work described in this
Agreement shall be done in a safe, proficient and professional manner, shall
conform to the highest standards, and shall adhere to all local, state and
federal laws and regulations applicable to the Work hereunder.
2. PERIOD OF PERFORMANCE
2.1 Datascension shall begin the Work on March 15, 2003 and continue through
May 31, 2003, unless sooner terminated as provided in Sections 4.1. or 4.2.
This Contract may be extended by mutual agreement of both Parties.
2.2 Datascension's project manager shall keep Knowledge Networks appraised
of the progress of the Work.
3. COSTS AND PAYMENTS
3.1 Knowledge Networks agrees to pay Datascension $0.00 per interviewer
hour. Datascension will refund Knowledge Networks the average cost per
recruited household for any recruited household for which no valid email
address is provided. Knowledge Networks will provide Datascension with a
"bounced e-mail report" to facilitate this process. The total cost per
interview shall not exceed $0.00 (1.5 times the hourly rate).
3.2 Two weeks after the end of a billing period, Datascension shall submit
an invoice for the total number of interviewer hours worked. The billing period
ends with the last day of each month and the 15th of each month during the
period of performance. Knowledge Networks agrees to make payment to
Datascension within sixty (60) days of receipt of a valid invoice from
Datascension; if Knowledge Networks does so, it shall be entitled to take a
five percent (5%) discount on such invoice.
4. TERM AND TERMINATION
4.1 This Agreement shall become effective as of the Effective Date and,
unless sooner terminated in accordance with Sections 4.2 or 4.3, or as
otherwise mutually agreed, shall remain effective until May 31, 2003.
4.2 This Agreement may be terminated at any time by a party, effective
immediately upon written notice, if the other party: (a) undergoes an
insolvency proceeding that is not dismissed within ninety (90) days; (b) files
a petition in bankruptcy; (c) makes an assignment for the benefit of its
creditors; or (d) breaches any of its material responsibilities or obligations
under this Agreement, which breach is not remedied within thirty (30) days from
receipt of written notice of such breach.
4.3 Knowledge Networks may terminate this Agreement upon fourteen (14) days
written notice to the other party. If this Agreement is terminated pursuant to
this Section 4.3
Datascension shall be reimbursed for all the Completed Cases earned and Refusal
Letter Conversion Fees incurred and not yet paid.
4.4 Upon expiration or termination of this Agreement: (a) each party shall
return or, at the disclosing party's request, destroy, the Confidential
Information of the other party; and (b) Section 4.4 and Articles 6, 7, 8, 10,
11, 12, 13, and 14 shall survive.
5. NOTICES AND ADDRESSES
5.1 All notices to the parties under this Agreement shall be in writing and
sent to the names and addresses as set forth below. Either party may change
such name and address by notice to the other party in accordance herewith, and
such change shall take effect immediately upon receipt of such notice.
5.2 Datascension, Inc.
Joey Harmon, Vice President
145 S. State College Bl., Suite 350
Brea, California 92821
5.3 Knowledge Networks, Inc.
Joe J. Viglianti, Vice President
Knowledge Networks, Inc.
570 South Avenue East, Suite G
Cranford, NJ 07016
6. CONFIDENTIAL INFORMATION
6.1 "Confidential Information" means any oral, written, graphic or machine-
readable information including, but not limited to, that which relates to
patents, patent applications, research, product plans, products, developments,
inventions, processes, designs, drawings, engineering, formulae, markets,
software (including source and object code), hardware configuration, computer
programs, algorithms, regulatory information, medical reports, clinical data
and analysis, reagents, cell lines, biological materials, chemical formulas,
business plans, agreements with third parties, services, customers, marketing
or finances of the disclosing party, which Confidential Information is related
to this Agreement or in furtherance of it, or, if not related to this Agreement
or in furtherance of it, is designated in writing to be confidential or
proprietary, or if given orally, is confirmed in writing as having been
disclosed as confidential or proprietary within a reasonable time (not to
exceed thirty (30) days) after the oral disclosure, or which information would,
under the circumstances, appear to a reasonable person to be confidential or
proprietary.
(a) Datascension and Knowledge Networks each agree not to use any
Confidential Information disclosed to it by the other party for its own use or
for any purpose other than to carry out discussions concerning, and the
undertaking of, the relationship and activities contemplated by this Agreement.
Neither party shall disclose or permit disclosure of any Confidential
Information of the other party to third parties or to employees of the party
receiving Confidential Information, other than directors, officers, employees,
consultants and agents who are required to have the information in order to
carry out the relationship and activities contemplated by this Agreement. Each
party agrees that it shall take all reasonable measures to protect the secrecy
of and avoid disclosure or use of Confidential Information of the other party
in order to prevent it from falling into the public domain or the possession of
persons other than those persons authorized under this Agreement to have any
such information. Such measures shall include, but not be limited to, the
highest degree of care that the receiving party utilizes to protect its own
Confidential Information of a similar nature, which shall be no less than
reasonable care. Each party agrees to notify the other in writing of any actual
or suspected misuse, misappropriation or unauthorized disclosure of
Confidential Information of the disclosing party which may come to the
receiving party's attention.
(b) Exceptions. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which the receiving parts' can prove:
(i) was in the public domain at the time it was disclosed or has
entered the public domain through no fault of the receiving party;
(ii) was known to the receiving party, without restriction, at the
time of disclosure, as demonstrated by files in existence at the time of
disclosure;
(iii) is disclosed with the prior written approval of the
disclosing party;
(iv) was independently developed by the receiving party without
any use of the Confidential Information of the disclosing party and by
employees of the receiving party who have not had access to the
Confidential Information, as demonstrated by files created at the time
of such independent development;
(v) becomes known to the receiving party, without restriction,
from a source other than the disclosing party without breach of this
Agreement by the receiving party and otherwise not in violation of the
disclosing party's rights;
(vi) is disclosed generally to third parties by the disclosing
party without restrictions similar to those contained in this Agreement;
or
(vii) is disclosed pursuant to the order or requirement of a
court, administrative agency, or other governmental body; provided,
however, that the receiving party shall provide prompt notice of such
court order or requirement to the disclosing party to enable the
disclosing party to seek a protective order or otherwise Prevent or
restrict such disclosure.
6.2 Neither the execution of this Agreement, nor the furnishing of any
confidential information by either party shall be construed as granting to the
other party expressly, by implication, by estoppel, or otherwise, any license
under any invention, patent, trademark, copyright or other proprietary right
now or hereafter owned or controlled by the party furnishing the same.
6.3 Datascension and Knowledge Networks agree that unauthorized disclosure
of Confidential information could result in irreparable harm. Accordingly, in
the event that either Datascension or Knowledge Networks breaches its
obligations with respect to Confidential Information under this Agreement, the
party injured shall be entitled to enjoin any further breach and may take such
additional action as it deems necessary and appropriate, including seeking
damages in any court of competent jurisdiction.
7. DELIVERABLES
All information on the Completed Cases developed under this contract shall be
owned by Knowledge Networks. Further, all information used and collected during
the recruitment of households including the methodology used and developed in
conjunction with Knowledge Networks shall be owned by Knowledge Networks.
Datascension shall have no right to or interest in any such information.
8. DISPUTES
8.1 The Parties will in good faith effort resolve any dispute concerning a
question of fact arising under this Agreement. If a dispute remains after good
faith negotiations between the Parties to resolve any such dispute, the Parties
agree to submit the dispute to arbitration to be conducted under the auspices
of the American Arbitration Association in San Mateo County, California. Each
Party hereto shall divide equally the fees and expenses of any arbitrator. Each
Party shall also bear its own attorneys' expenses as a result of any
arbitration under this Agreement.
8.2 Each party will defend, indemnify, save and hold harmless the other
party, the other party's affiliates, and their officers, directors, agents and
employees from any and all third-party claims, demands, liabilities, costs or
expenses, including reasonable attorneys' fees (collectively, "Liabilities"),
resulting from the indemnifying party's breach of any material duty,
representation, or warranty contained in this Agreement, except there shall be
no obligation to indemnify, defend, save or hold harmless where Liabilities
result from the gross negligence or knowing and willful misconduct of the other
party. Each party agrees to (a) promptly notify the other party in writing of
any indemnifiable claim, and (b) give the other party the opportunity to defend
or negotiate a settlement of any such claim at such party's expense and
cooperate fully with the other party, at that other party's expense, in
defending or settling such claim. Each party reserves the right, at its own
expense, to participate in the defense of any matter otherwise subject to
indemnification by the other party.
9. Datascension shall carry insurance in accordance with the marked
sections of Exhibit C.
10. This Contract shall be governed by and construed in accordance with the
laws of the State of California.
11 . This Agreement may not be assigned, in whole or in part, by either party
without the prior written consent of the other party, except to:
(a) a purchaser of all or substantially all of the assigning parties
voting stock or assets;
(b) an entity with which the assigning party consolidates or merges;
or
(c) any wholly-owned subsidiary of the assigning party;
provided that such purchaser, entity, or subsidiary agrees in writing to be
bound by the terms and conditions hereof, and is not a direct competitor of the
other party.
12. Any of the provisions of this Agreement that are determined to be
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability in such jurisdiction, without rendering
invalid or unenforceable the remaining provisions hereofor affecting the
validity or enforceability of any of the provisions of this Agreement in any
other jurisdiction.
13. This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute but one
and the same instrument.
14. This Agreement constitutes the entire agreement between the parties
hereto and supersedes all previous agreements and understandings, whether oral
or written, express or implied, with respect to the subject matter contained in
this Agreement (with the exception of previous agreements or portions of
agreements regarding Confidentiality, which shall remain in full force and
effect). This Agreement may not be altered, amended, or modified except by
written instrument signed by the duly authorized representatives of both
parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
KNOWLEDGE NETWORKS, INC. DATASCENSION INC
By: By:
Name: Name:
Title: Title:
Exhibit A
Statement of Work for Knowledge Networks Panel Recruitment Effort
This document provides a summary of the activities that encompass the household
recruitment effort. These activities include sample preparation and selection,
household recruitment, and sample member conversion efforts and are listed by
responsible firm.
Knowledge Networks will:
This information intentionally left blank
Datascension will:
This information intentionally left blank
Exhibit B
Replicate Close Down Procedures
This document describes the procedures that are to be followed to close down
replicates for the Knowledge Networks Recruitment Services.
All telephone numbers in a replicate are released and routed to interviewers by
the CATI as scheduled. Attempts to reach a sample member are made in each call
window at least once. Multiple attempts are made in the evening and weekend
time slots. For those households that are not reached, at least 9 attempts are
made before the telephone number is finalized.
Refusals
When an interviewer receives a refusal from a household, the case record is
placed on a 3-day delay. After 3 days, the number is attempted again. If, at
that time, an interviewer receives a refusal from a household, the case is
placed on 7-day delay. Within 24 hours of the refusal, a supervisor reviews
each case to determine the type of refusal and whether conversion should be
pursued. All hostile refusals are finalized immediately. Non-hostile refusals
for which we have an address are mailed a refusal conversion letter.
Refusal conversion interviewers are assigned to work the refusal cases, The
system delivers non-hostile refusal cases to the refusal converters, as they
are ready to be called. Below are the outcomes that can take place during
refusal conversion:
- - Conversion is successful, household is recruited and case is retired as
a complete.
- - Conversion fails; case is retired as a final refusal.
- - Household/telephone number is determined to be ineligible.
- - Telephone number is no longer working.
- - Re contact with the household cannot be established and after 15
attempts the case is finalized as a final refusal.
- - Privacy manager devices are considered hidden refusals. Make at least 3
attempts on telephones with privacy manager, after the 3rd attempt the
case is finalized.
Ineligibles
Eligible households must have: at least one person 18 years of age or older who
speaks English; a television; electricity; and, one person 18 years of age or
older with the mental and physical capacity to participate in the survey. Only
telephone numbers that ring at primary residences are eligible. In addition,
households in which the residents are out of the area for the entire field
period are classified as ineligible.
Ineligible cases are finalized using the following procedures:
- - Language problem. Interviewers that determine a potential language
barrier file the case as a language problem. The household is called
again to determine if there is an adult in the household that speaks
English. If the language barrier persists, the number is retired as a
final language barrier.
- - Television/electricity. A household that does not own a television, or
have electricity, is finalized appropriately (final, ineligible).
- - Physical/Mental incapacitation. When a physical impairment that will
inhibit participation (i.e. visually impaired) is determined the
interviewer files the case to supervisor review and records the problem
in the call notes. Upon supervisor review, the case is finalized. For
mental impairment, the case will be called at least one time after the
initial call to determine if there is anyone in the household who is
able to answer the survey and enroll the household. If there is no
success, the case will be finalized.
- - Not primary household. If the telephone number rings at a group
quarters, or other non-primary household, the interviewer will record
the problem and file the case for supervisor review. The supervisor
finalizes the case or determines it should be called again for further
clarification.
- - Out of country. Residents that are out of the country for the full
period in which the replicate is active will be classified as ineligible
for the survey.
Ineligible telephone numbers (not working residential phone line)
Datascension will follow standard procedures to handle the various telephone
line problems that are encountered.
- - Disconnected Numbers. If the interviewer hears a message reporting that
the phone number has been disconnected, or has been changed, it is coded
as such and the number is retired automatically.
- - Multiple ring no answers. If after 9 attempts the only outcome for a
given number is all ring no answer, the case is finalized as a Non-
Contact.
- - Businesses. Business lines are finalized as non-residential.
- - Fax, modem, fast busy signals. Telephone lines that ring to either a
fax, modem, or as a fast busy are called twice before being finalized as
ineligible.
Replicates will be considered closed after all the cases in the replicate are
finalized into one of the following dispositions:
Complete (disposition number 1 or 31)
Final refusal (disposition number 12)
Language barrier (disposition number 45)
Business (disposition number 5)
Not contacted after 9 attempts (disposition number 2)
Ineligible (disposition numbers 5,20,40,45,50,51,60,61,63,64,22)
EXHIBIT C
If insurance is required as indicated in the Agreement, the marked sections of
the following terms shall apply:
[X] (a) WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE:
Workers' Compensation insurance shall be provided as required by law or
regulation.
Employer's Liability insurance shall be provided in amount~~ not less
than $500,000 per accident for bodily injury by accident, $500,000
policy limit by disease, and $500,000 per employee for bodily injury by
disease.
Where permitted by law, such policies shall contain waivers of the
insurer's subrogation rights against Knowledge Networks.
[X] (b) GENERAL LIABILITY INSURANCE: Datascension shall carry either
Comprehensive General Liability Insurance or Commercial General
Liability Insurance with limits of liability and coverage as indicated
below:
Premises and Operations;
Products and Completed Operations;
Contractual Liability;
Broad Form Property Damage (including Completed Operations);
Explosion, collapse and Underground Hazards when Contractor will
create risk normally covered by such insurance; and
Personal Injury Liability.
Comprehensive General Liability policy limits shall be not less than a Combined
Single Limit for Bodily Injury, Property Damage, and Personal Injury Liability
and $ 1,000,000 per occurrence and $2,000,000 aggregate.
Except with respect to Products and Completed Operations coverage, the
aggregate limits shall apply separately to Contractor's services under this
agreement.
Such policies shall name Knowledge Networks, its officers, directors and
employees as "Additional Insured's" and shall stipulate that the insurance
afforded Additional Insured's shall apply as primary insurance and that no
other insurance carried by any of them shall be called upon to contribute to a
loss covered thereunder.
If "claims made" policies are provided, Datascension shall maintain such
policies, without endangering aggregate limits as the above-stated minimums,
for at least five years after the expiration of the term of the Agreement.
[ ] (c) AUTOMOBILE LIABILITY INSURANCE: Datascension shall carry bodily
injury, property damage, and automobile contractual liability coverage
for owned, hired, and non-owned automobiles with a combined single limit
of liability for each accident of not less than $1,000,000.
[ ] (d) PROFESSIONAL LIABILITY: Datascension shall carry professional
liability insurance, including errors and omissions, with limits of
coverage of no less than $1 ,000,000, with a provision for no more than
a deductible of$100,000, to remain in effect for at least one year after
completion of services provided to Knowledge Networks.
[ ] (e) CERTIFICATES OF INSURANCE: Certificates of Insurance evidencing
the required coverage's and limits shall be furnished to Knowledge
Networks before any services are commenced hereunder and shall provide
that there will be no cancellation or reduction of coverage without
thirty (30) days prior written notice to Knowledge Networks. All
insurance policies shall be written by a company authorized to do
business in California. Datascension shall furnish copies of any
endorsements subsequently issued that amend coverage's or limits.