Exhibit 99.1
CONFIDENTIAL
STRATEGIC ONLINE RESEARCH SERVICES AGREEMENT
This Strategic Online Research Services Agreement (the "Agreement"),
dated as of October 22, 2001 (the "Effective Date"), is entered into by and
between America Online, Inc. ("AOL") a Delaware corporation, with offices
located at ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and SPSS, Inc. ("SPSS"), a
Delaware corporation, with offices located at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. AOL and SPSS may be referred to herein individually as
a "Party" and collectively as the "Parties." To the extent this Agreement
requires performance by a subsidiary of AOL, AOL (in its capacity as stockholder
of such subsidiary) shall cause such subsidiary to perform in accordance with
the requirements of this Agreement. Defined terms used but not defined in the
body of the Agreement shall be as defined on Exhibit A attached hereto.
WHEREAS, AOL's wholly-owned subsidiary Digital Marketing Services, Inc.
("DMS") currently operates an online market research business that conducts
online market research on behalf of third party custom research partners, AOL
and its partners;
WHEREAS, SPSS is a software solutions and infrastructure company
serving social science (marketing research) industry and related users; and
WHEREAS, AOL and SPSS desire to enter a strategic agreement pursuant to
which AOL will (i) provide SPSS with access to AOL Members and other Internet
users that visit AOL's Opinion Place(R) market research portal(s) for the
purpose of participating in online surveys (collectively, "OP Users") and (ii)
make SPSS AOL's exclusive distributor of AOL Sample to approved third parties in
the market research industry.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
SALE OF LANDSCAPE SOFTWARE; TRANSITION
1.1 SALE OF LANDSCAPE SOFTWARE. Subject to the terms and conditions set
forth in this Agreement, AOL hereby sells, assigns, and transfers title
to the Landscape Software and any copyright therein (excluding the DMS
River Methodology and all related Intellectual Property Rights), as
such Landscape Software is described in Exhibit E, to SPSS. Within five
(5) days of the Effective Date, AOL shall deliver or otherwise make
available to SPSS a copy of the Landscape Software. Following the
delivery of the Landscape Software to SPSS, AOL shall have no further
obligation to maintain, modify, or enhance the Landscape Software. AOL
shall retain full ownership of the DMS River Methodology and all
related Intellectual Property Rights. Notwithstanding the foregoing,
the Parties acknowledge that the DMS River Methodology is implemented
in the Landscape Software and agree that SPSS may utilize the DMS River
Methodology solely in connection therewith.
1.1.1 AOL Representations and Warranties. AOL hereby represents that (a) it
has no current obligation that requires payment, now or in the future,
of royalties to any third party with respect to AOL's use of the
Landscape Software and (b) there are no liens or other encumbrances on
the Landscape Software. The Landscape Software is provided on an "AS
IS" basis only. AOL hereby warrants that (i) the Landscape Software is
the proprietary software used by AOL in connection with the creation
and administration of surveys through Opinion Place; (ii) it is the
owner of the Landscape Software and the DMS River Methodology; (iii) to
AOL's knowledge, no Person has challenged AOL's ownership interest in
the Landscape Software and (iv) to AOL's knowledge no Person has
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infringed upon AOL's rights in the Landscape Software or the DMS River
Methodology. AOL further warrants that it is creating documentation for
SPSS that establishes how SPSS should use the Landscape Software and
how the Landscape Software should function ("Documentation"), as set
forth in Exhibit E. If there is a material inconsistency between the
Documentation and the Landscape Software (as such software was
delivered to SPSS), which arises within a period of one (1) year from
the Effective Date and is not caused by SPSS, AOL shall use
commercially reasonable efforts to work with SPSS to correct such
inconsistencies. NO OTHER WARRANTY IS PROVIDED TO SPSS REGARDING THE
LANDSCAPE SOFTWARE DELIVERED HEREUNDER. AOL EXPRESSLY DISCLAIMS ANY AND
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. AOL
DOES NOT WARRANT THAT THE LANDSCAPE SOFTWARE WILL MEET SPSS'
REQUIREMENTS, THAT THE OPERATION OF THE LANDSCAPE SOFTWARE WILL BE
UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LANDSCAPE SOFTWARE
WILL BE CORRECTED.
1.1.2 Indemnification. Subject to Section 9.3 of Exhibit B, (i) AOL
will defend, indemnify, save and hold harmless SPSS from any
and all third party claims, demands, liabilities, costs or
expenses, including reasonable attorney's fees arising out of
AOL's (or its agents') use of the Landscape Software and AOL
Derivative Works (as defined below) during the Term and (ii)
SPSS will defend, indemnify, save and hold harmless AOL from
any and all third party claims, demands, liabilities, costs or
expenses, including reasonable attorney's fees arising out of
SPSS' (or its agents') use of the Landscape Software and the
SPSS Derivative Works.
1.2 LICENSE OF LANDSCAPE SOFTWARE. SPSS hereby grants AOL and AOL accepts a
nonexclusive, royalty-free, irrevocable right and license to use,
execute, display, copy, perform and make derivative works based upon
the Landscape Software (including all updates, enhancements or
modifications thereto made by SPSS, or its agents), in object code and
source code form in connection with AOL's online market research
activities as provided herein (the "License"). In addition, SPSS hereby
grants AOL a license to all derivative works produced or created by
SPSS or its agents based on the Landscape Software ("SPSS Derivative
Works") on the same terms as the License contemplated in the foregoing
sentence; provided, however that AOL may not sublicense or otherwise
make available the Landscape Software or the SPSS Derivative Works to
any New Exclusive Distributor (as defined below). AOL shall own all
right, title and interest in and to all derivative works produced or
created by AOL or its agents based on the Landscape Software ("AOL
Derivative Works"), and AOL shall make such AOL Derivative Works
available to SPSS during the Term for use by SPSS solely in connection
with SPSS' rights as Exclusive Distributor of AOL Sample.
1.2.1 Sublicensing Rights. AOL may sublicense the rights granted
herein to AOL's contractors, AOLTW Partners, or their
designated contractors (collectively, "Sublicensees"), solely
and exclusively for the purpose of facilitating such
Sublicensees' support of an AOLTW Project; provided, however
that such Sublicensees shall have no right to sublicense,
assign or otherwise transfer the use of the Landscape Software
or the SPSS Derivative Works to any third party and shall not
be permitted to utilize the Landscape Software or SPSS
Derivative Works for any other purpose, including client work
other than AOLTW Projects.
1.3 LANDSCAPE SOFTWARE RESTRICTIONS. During any period in which SPSS is the
Exclusive Distributor of AOL Sample ("Exclusivity Period"), and unless
otherwise mutually agreed by the Parties, SPSS shall not (i) sell,
license, assign or otherwise make available the Landscape Software,
SPSS Derivative Works or related intellectual property to any AOLTW
Competitor or (ii) utilize the Landscape Software or DMS River
Methodology in connection with sample provided by any AOLTW Competitor
(the "SPSS Landscape Restrictions"). In the event that AOL (pursuant to
it rights under Section 8.6) enters into a New Exclusive
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Distributor Agreement, the SPSS Landscape Restrictions shall have no
further force or effect. During the Exclusivity Period and subject to
Section 1.2.1, AOL shall not sublicense, assign or otherwise make
available the Landscape Software, SPSS Derivative Works or related
intellectual property, including the DMS River Methodology, to any
direct competitor of SPSS ("Sublicensing Restriction"). Notwithstanding
anything contained in this Agreement to the contrary, in the event that
AOL terminates this Agreement pursuant to its rights under Sections
8.2, 8.3, 8.4 or if SPSS terminates this Agreement pursuant to Section
8.5, the Sublicensing Restriction shall have no further force or
effect, including with respect to AOL's ability to provide a New
Exclusive Distributor with access to and use of the Landscape Software.
The Parties acknowledge that SPSS shall retain its ownership rights in
and to the Landscape Software and any related intellectual property
(excluding the DMS River Methodology, which shall continue to be the
sole property of AOL) following the expiration or termination of this
Agreement.
1.4 TRANSITION PERIOD. During the period beginning on Effective Date and
ending on the Launch Date ("Transition Period"), which Transition
Period shall end no later than December 4, 2001, AOL will work with
SPSS in order to certify SPSS for receipt of AOL Sample. During the
Transition Period, AOL will provide SPSS with the names of and details
about each DMS Partner and the Parties will work together in servicing
AOL's existing obligations under its DMS Partner contracts. As
consideration for this assistance, AOL shall direct such DMS Partners
to pay SPSS for services rendered under any such DMS Partner contracts
during the Transition Period. Additionally, AOL and SPSS shall fully
cooperate in good faith during the Transition Period in order to
smoothly transition current DMS Partner relationships from AOL to SPSS
on substantially similar terms and conditions as contained in current
agreements between DMS and such DMS Partners. Such efforts by AOL shall
include setting up introductions and meetings between SPSS and DMS
Partners and assigning DMS Partner contracts to SPSS where possible;
provided, however, that the Parties understand that it is SPSS'
responsibility to ultimately enter into contracts with DMS Partners and
that this Agreement shall in no way be contingent upon SPSS
successfully assuming any DMS Partner contracts or executing agreements
with current DMS Partners. SPSS shall have the right to interview and
hire certain DMS employees or former employees that have or are
currently servicing DMS Partners ("Available Employees"). SPSS shall
use good faith efforts to offer Available Employees (a list of such
employees shall be provided by AOL within ten (10) business days after
the Effective Date) the opportunity to interview with SPSS for
employment.
ARTICLE 2
ACCESS TO OPINION PLACE USERS
2.1 TRANSFER OF OP USERS, SPSS ACCESS RIGHT. Beginning on a mutually agreed
upon date after the Effective Date ("Launch Date"), AOL shall provide
SPSS with access to OP Users from Opinion Place as set forth herein for
the sole purpose of allowing such OP Users to participate in online
surveys being hosted by SPSS on behalf of its customers. The flow of OP
Users from Opinion Place to SPSS is depicted in Exhibit G-1.
Furthermore, SPSS shall have a perpetual right to host OP Users as long
as Opinion Place is operational ("SPSS Access Right"), provided,
however, that (i) SPSS must remain in compliance with the Certification
Guidelines and (ii) this Agreement (or any successor agreement) is not
terminated pursuant to either Party's rights as set forth in Sections
8.2, 8.3, 8.4 or 8.5. Notwithstanding the SPSS Access Right, the
Parties acknowledge that SPSS and AOL (or its successor with respect to
Opinion Place) must mutually agree on any future level of access to,
and pricing for, SPSS' receipt of OP Users following the term of this
Agreement.
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2.2 CAPACITY PLANNING. Promptly following the Effective Date, the Parties
shall establish and implement a capacity planning team ("CPT") that
shall act as a unified body responsible for closely monitoring,
anticipating, determining and communicating SPSS' AOL Sample needs to
AOL, so as to enable both Parties to plan prospectively for the
provision of adequate quantities of AOL Sample to SPSS as reasonably
needed for SPSS projects from time to time during the Term. Without
limiting the generality of the foregoing, AOL shall allocate not less
than forty-five percent (45%) of the annual number of Level 1 Screened
OP Users for distribution to SPSS for Level 2 Screening and project
assignment in accordance with the agreements made by the CPT ("Capacity
Allocation"). The Parties acknowledge and agree that AOL shall use
commercially reasonable best efforts to provide a volume of AOL Sample
necessary to fully satisfy SPSS' project execution needs on a project
by project basis; provided, that AOL shall not be in breach of this
Agreement if it (i) is unable to provide SPSS with a volume of AOL
Sample in excess of the Capacity Allocation, (ii) does not provide the
full Capacity Allocation to SPSS during any Agreement Year in which
SPSS' project needs fall below the Capacity Allocation, or (iii) is
unable to satisfy any request for AOL Sample by SPSS that does not meet
the Reasonable Project Guidelines (as defined below). The Parties
understand that (a) the exact number of OP Users will fluctuate by day,
week and month, thereby making the role of the CPT essential to AOL's
ability to satisfy SPSS' AOL Sample needs, (b) AOL shall be entitled to
retain the volume of AOL Sample not allocated to SPSS (the 55% of Level
1 Screened OP Users not allocated for use by SPSS), for use in
connection with internal projects and AOLTW Partner project needs; and
(c) AOL may, as determined in its sole discretion, make use of any
unused portion of the Capacity Allocation without paying SPSS for such
use, unless AOL makes use of SPSS' market research services in
connection with the use of such unused portion of the Capacity
Allocation.
2.2.1 Composition of CPT. Each Party shall have two (2) seats on the
CPT, which shall be filled by such Party with senior level
employees (i.e., Director level or above) from AOL and SPSS,
respectively (each a "CPT Member"). Each Party may change its
respective CPT Members in its sole discretion from time to
time; provided that both AOL and SPSS must have two CPT
Members each at all times.
2.2.2 Meetings. The CPT shall convene its first meeting in person no
more than ten (10) days following the Effective Date, unless
otherwise mutually agreed to by the Parties ("Initial
Meetings"). Following the Initial Meeting, the CPT shall meet
in person or via conference call (i) weekly for short term
planning purposes ("Weekly Meetings") and (ii) quarterly for
mid to long term planning purposes ("Quarterly Meetings"),
unless otherwise unanimously agreed to by the CPT Members.
(a) The purpose of the Initial Meetings shall be to:
(i) Report on current Opinion Place traffic levels
and productivity;
(ii) Set guidelines for project base sizes,
incidence levels and timing based on historical
patterns at DMS;
(iii) Set guidelines for "Reasonable Projects" in
terms of base size and incidence ("Reasonable
Project Guidelines"); "Reasonable Projects"
means projects for which, given the timing,
duration, volume of AOL Sample required, and
incidence for a particular project, AOL should
as a matter of course, and barring any
"unforeseeable circumstances", be able to
satisfy SPSS' AOL Sample needs ("unforeseeable
circumstances" means any causes or conditions
which are beyond AOL's reasonable control and
which AOL is unable to overcome by the exercise
of reasonable diligence);
(iv) Summarize and assess ability to meet AOL Sample
needs on specific, approved projects either in
the field or starting within two weeks;
(v) Summarize and assess ability to meet
prospective projects specified for estimate or
exploration that may be starting within one
month;
(vi) Determine short term Opinion Place traffic
needs and make appropriate recommendations in
project scheduling and traffic management; and
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(vii) Establish the official schedule of projects and
related status of such projects ("Master CPT
Project Status Report").
(b) The purpose of the Weekly Meetings shall be to:
(i) Summarize current Opinion Place traffic levels
and productivity;
(ii) Monitor incidence levels and impact on AOL
Sample needs and timing;
(iii) Summarize and assess ability to meet AOL Sample
needs on specific, approved projects either in
the field or starting within two weeks;
(iv) Summarize and assess ability to meet
prospective projects specified for estimate or
exploration that may be starting within one
month;
(v) Determine short term Opinion Place traffic
needs and make appropriate recommendations in
project scheduling and traffic management;
(vi) Update Master CPT Project Status Report; and
(vii) Establish weekly SPSS AOL Sample needs.
(c) The purpose of the Quarterly Meetings shall be to:
(i) Summarize project and overall partnership
performance of each Party; AOL shall evaluate
SPSS and SPSS shall evaluate AOL;
(ii) Review any persistent problems and determine
actions needed to resolve problems in the
coming quarter;
(iii) Determine trends affecting the business and
anticipate ways to meet needs and opportunities
in a changing market environment;
(iv) Assess work processes and make recommendations
to improve operating efficiency and utilization
of AOL Sample; and
(v) Summarize and assess ability to meet major
prospective projects specified for estimate or
exploration that may be starting within the
quarter.
2.2.3 Conflict Resolution. If a conflict arises with respect to
meeting SPSS AOL Sample needs during any two week window, the
CPT shall make all reasonable efforts to resolve the supply
and demand issue by taking the following steps:
(a) STEP 1: Assess the reasonableness of the project(s)
opportunity on the basis of AOL Sample quantity and
incidence relative to project trends over past
quarter. The CPT must objectively agree about whether
the project is reasonable or not based on the
Reasonable Project Guidelines before proceeding to
Step 2.
(b) (b) STEP 2: Agree to design modifications or
elimination of the prospective project before
proceeding to Step 3.
(c) STEP 3: If the CPT deems the project a Reasonable
Project, each Party (SPSS first; AOL second) assess
the ability to delay or reschedule its existing
projects in order to allow this project to proceed
before proceeding to Step 4.
(d) STEP 4: Explore exceptional opportunities to promote
Opinion Place on the AOL Network or other Internet
properties to assist in meeting the project's AOL
Sample needs ("Exceptional Promotion"); provided that
SPSS must make all commercially reasonable efforts to
adjust project timing to accommodate Exceptional
Promotion. SPSS acknowledges that such Exceptional
Promotion could result in Exceptional Costs which
SPSS would be responsible for paying to AOL and that
AOL is not
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bound to perform Exceptional Promotion to meet SPSS
AOL Sample needs; however, this alternative must be
explored before proceeding to Step 5.
(e) STEP 5: The CPT will assess AOL's progress towards
providing SPSS with the Capacity Allocation based on
AOL Sample provided to SPSS within the past twelve
(12) months or, if necessary, since Effective Date.
If at that time SPSS has received less than
forty-five percent (45%) of Level 1 Screened OP
Users, then AOL must take all commercially reasonable
measures required to provide SPSS with an amount of
AOL Sample in connection with the subject project
that brings the total percentage of AOL Sample
received by SPSS to 45% of the available AOL Sample;
provided, however, that AOL shall not be obligated to
provide SPSS with any more than 45% of the aggregate
amount of available AOL Sample. If at that time SPSS
has received 45% or more of the available AOL Sample,
then AOL shall have no obligation to provide SPSS
with a higher percentage of available AOL Sample
specifically for the subject project. Such
examination and steps must be taken before proceeding
to Step 6.
(f) STEP 6: Escalation of the Dispute to the Management
Committee in accordance with the provisions contained
in Exhibit B.
2.3 OPERATION OF OPINION PLACE. AOL shall continue to operate Opinion Place
as the sole Interactive Site(s) to which Internet users are directed
for the purpose of participating in online surveys in connection with
AOL's and its Exclusive Distributor's (or Distributors') custom market
research efforts; provided, however, that AOL may (outside of Opinion
Place) conduct online promotional surveys on various areas throughout
the AOL Network which surveys do not rely upon the DMS River
Methodology or an approach that is substantially similar to that which
is used on Opinion Place and are therefore not subject to the terms of
this Agreement. In connection with its delivery of OP Users to SPSS,
AOL shall operate Opinion Place as set forth below:
2.3.1 Management, Promotion. During the Term, AOL shall be
responsible for the hosting and management of Opinion Place
and shall maintain Opinion Place in a timely and professional
manner as set forth herein. AOL shall ensure that Opinion
Place is promoted across the AOL Network in a manner that is
sufficient, as determined by AOL in its reasonable discretion,
to fulfill AOL's obligations to supply AOL Sample to SPSS as
determined by the CPT. In the event that AOL launches any new
domestic Opinion Place Interactive Sites during the Term, such
new Opinion Place Interactive Sites shall be subject to this
Agreement.
2.3.2 ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇ responsible for hosting and
executing on Opinion Place the initial set of questions posed
to OP Users, which questions, unless otherwise mutually agreed
to by the Parties, shall be limited to gender, age, and
household composition of each OP User ("Level 1 Screening").
Once an OP User has been Level 1 Screened by AOL, AOL shall
execute real-time transfers to SPSS of a number of Level 1
Screened OP Users as determined by the CPT for Level 2
Screening and assignment to specific surveys by SPSS. AOL
shall use commercially reasonable efforts not to deliver a
number of Level 1 Screened OP Users to SPSS in excess of the
SPSS weekly AOL Sample needs as determined (before and/or
during a specific project) by the CPT in any given week. In
the event that AOL delivers to SPSS an amount of AOL Sample
that exceeds the amount requested by the CPT, the excess
amount of AOL Sample shall not be counted against the OP User
Threshold for the then current Agreement Year. The Parties
acknowledge that SPSS shall have the right to request, through
the CPT, modifications to the AOL Sample levels previously set
by the CPT, or request, through the CPT, that all flow of AOL
Sample to SPSS be temporarily suspended, provided, however,
that SPSS shall provide the CPT with no less than twenty-four
(24) hours notice of any such changes if such changes are to
be implemented by AOL. The
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Parties further acknowledge that it is SPSS' expectation that
it will request more than the OP User Threshold in each
Agreement Year ("Excess Demand"), and that it is AOL's
expectation that it will be able to (fully or partially) meet
such Excess Demand, provided that any such Excess Demand is
reasonable as determined by the CPT. Notwithstanding the
foregoing, AOL shall only be obligated to use commercially
reasonable efforts to meet the Excess Demand, subject to the
terms and conditions of this Agreement (specifically Section
2.2). "Level 2 Screening" means the process by which SPSS
poses a second set of questions to each OP User, which
questions are intended to further identify specific
qualifications of each OP User for assignment to a specific
survey. In addition, AOL shall cooperate with SPSS to make
SPSS aware of the online research market's currently accepted
methods and DMS' current practices with respect to Level 2
Screening and assignment of OP Users to specific surveys.
2.3.3 Incentive Platform. AOL shall be exclusively responsible,
including paying all standard costs, for operating and
maintaining the Incentive Platform to be integrated into the
market research arrangement set forth in this Agreement;
provided, however, that SPSS shall be responsible for paying
AOL for all "Exceptional Costs" related to the execution of an
SPSS project. AOL shall determine in its reasonable discretion
all aspects of the Incentive Platform and the process for
distributing Incentive Awards to OP Users for participating in
certain online activities, including, without limitation, the
qualifications and requirements that must be met by OP Users
in order to receive Incentive Awards; the quantity of the
Incentive Awards provided for various activities; the rules
and restrictions governing the receipt, expiration, and
disposition of Incentive Awards. The Parties acknowledge and
agree that the Incentive Platform, may be modified, altered or
changed by AOL in its reasonable discretion from time to time,
(including, without limitation, the currency used by AOL for
Incentive Awards); provided, however, that AOL shall provide
reasonable prior written notice to SPSS before instituting a
material change to the Incentive Platform. In the event that
SPSS desires to utilize another incentive platform or currency
in connection with its use of AOL Sample, SPSS shall obtain
AOL's prior written consent, which consent shall not be
unreasonably withheld. Exceptional Costs means costs directly
related to (i) AOL's provision of Incentive Awards to OP Users
in connection with any survey for an SPSS project which
requires more than the Standard Incentive (150 AOL Advantage
Miles/100 ClickMiles for 15 minute survey) as set forth in the
Certification Guidelines or (ii) AOL's purchase of promotions
for Opinion Place on an Interactive Site outside of the AOL
Network which promotions are specifically intended to raise
the incidence of a particular OP User demographic for purposes
of completing such survey.
2.3.4 Transfer of Opinion Place. In the event that AOL decides, in
its sole discretion, to sell, assign or otherwise transfer the
rights to operate and maintain Opinion Place to a third party,
SPSS shall have a "First Right of Negotiation" to acquire the
rights to operate Opinion Place during the term of this
Agreement and any succeeding agreement between the Parties in
which SPSS is the Exclusive Distributor (as defined below) of
AOL Sample. In the event that AOL transfers the right to
operate Opinion Place to a third party during the term of this
Agreement (or any extension hereof), AOL shall assign and such
third party shall assume AOL's obligations under this
Agreement (or any extension hereof), including the SPSS Access
Right. It is explicitly understood by SPSS and AOL that SPSS
and such third party shall be responsible for reaching mutual
agreement on the terms of any extension or renewal agreement
between such parties. For purposes of this Section 2.3.4,
"First Right of Negotiation" means that AOL shall provide SPSS
with written notice of its intention to transfer to an
unaffiliated party the operation of Opinion Place, such notice
shall include the key terms (e.g., economics, service levels,
security requirements, protection of OP User privacy, etc.)
upon which any such transfer of Opinion Place shall occur
("Key Terms"). SPSS shall have fifteen (15) days from its
receipt of such notice to respond in
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writing indicating SPSS' willingness to enter into an
agreement to acquire the rights to operate Opinion Place based
on its acceptance of the Key Terms ("Acceptance"); provided,
however, that if SPSS does not deliver its Acceptance to AOL
as set forth herein, AOL shall be entitled to negotiate with
any third party willing to accept the Key Terms. In the event
that SPSS does deliver its Acceptance to AOL, promptly
following AOL's receipt of such Acceptance, the Parties shall
enter into good faith negotiations with respect to AOL's
transfer of the right to operate Opinion Place to SPSS. If the
Parties are unable to execute a definitive agreement within
sixty (60) days after beginning good faith negotiations, AOL
shall have the right to negotiate with any party it chooses;
provided that any agreement reached between AOL and such third
party shall include the Key Terms or terms that when
considered in their totality are reasonably equivalent to the
Key Terms in their relative effect on AOL and the third party.
For the avoidance of doubt, SPSS' First Right of Negotiation
relates solely to the domestic Opinion Place Interactive
Sites.
ARTICLE 3
CERTIFICATION
3.1 CERTIFICATION PROCESS. All parties, including SPSS, that desire to host
OP Users must be certified by AOL pursuant to the Certification
Guidelines set forth in Exhibit C of this Agreement (each a "Certified
Partner") prior to the delivery by AOL or SPSS of any OP User to such
party. It shall be AOL's responsibility to oversee the certification
process. The Certification Guidelines may be modified by AOL from time
to time as determined by AOL in its reasonable discretion, provided,
however that SPSS shall receive reasonable prior written notification
of any change to such Certification Guidelines. SPSS shall (i) inform
all prospective SPSS Customers of the AOL certification requirement,
(ii) confirm with AOL that any SPSS Customer that desires to host OP
Users has been certified by AOL before SPSS provides AOL Sample to any
such SPSS Customer, and (iii) promptly inform AOL of any noncompliance
with the Certification Guidelines by SPSS Customers, which comes to the
attention of SPSS. In situations where SPSS will host OP Users on
behalf of SPSS Customers, SPSS shall be required to abide by the
Certification Guidelines with respect to that particular project and
such SPSS Customers shall not be required to be Certified Partners. It
is understood that AOL may certify third parties in its sole discretion
based on the Certification Guidelines, including without limitation,
third parties identified by SPSS as potential customers or third
parties identified by AOLTW or AOLTW Partners as further described in
Section 4.1 below. In the event that AOL determines that a Certified
Partner is in material breach of the Certification Guidelines, AOL may
require that SPSS immediately cease providing AOL Sample to such
Certified Partner until such time as AOL reasonably determines that the
breach has been cured.
ARTICLE 4
EXCLUSIVITY
4.1 EXCLUSIVE DISTRIBUTOR RIGHTS. In addition to receiving access to OP
Users for use by SPSS in connection with projects hosted by SPSS on
behalf of SPSS Customers, SPSS shall be the exclusive distributor of
AOL Sample to Certified Partners ("Exclusive Distributor"). With
respect to any contractual obligations of SPSS to provide AOL Sample to
any SPSS Customer, any such SPSS obligations shall be coterminous with
this Agreement or shall expire prior to the end of the term of this
Agreement.
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4.1.1 Restrictions on SPSS Distribution of AOL Sample. For so long
as SPSS is the Exclusive Distributor of AOL Sample, SPSS (i)
shall not distribute Internet sample provided to it by any
source other than Opinion Place, unless otherwise mutually
agreed to by the Parties in writing and (ii) shall not operate
in an anti-competitive fashion with respect to its provision
of AOL Sample to Certified Partners (i.e., unreasonably deny,
delay, limit or hinder the receipt and/or use by Certified
Partners of AOL Sample for the sole benefit of SPSS'
interests, including by way of unreasonable pricing for AOL
Sample).
4.1.2 Exceptions to Exclusive Distributor Rights. Notwithstanding
anything contained in this Agreement to the contrary
(including SPSS' Exclusive Distributor rights set forth in
Section 4.1 above), AOL shall at all times continue to have
the right to distribute AOL Sample directly to third parties
who are conducting research projects for (i) AOLTW and/or (ii)
"AOLTW Partners" or prospective AOLTW Partners (collectively,
"AOLTW Projects"); provided that no such third parties are
permitted to resell the AOL Sample provided by AOL pursuant to
this Section 4.1.2. For purposes of this Agreement, "AOLTW
Partners" means any party that has a commercial relationship
with AOLTW that is not solely intended to provide for AOL's
distribution of AOL --- Sample to such party or such party's
affiliate, but includes a broader relationship between the
parties involving the provision of goods or services other
than AOL Sample (e.g., advertising, software, consulting
services, etc.); provided that any AOL Sample being delivered
to such AOLTW Partner or its agent is intended to be used in
furtherance of a broader commercial arrangement between AOLTW
and such party. AOL shall, however, refer to SPSS any third
parties that seek to purchase AOL Sample on a stand-alone
basis (i.e., not as part of a broader commercial arrangement
with AOLTW). By way of example, without limiting the
generality of the foregoing, AOL may directly distribute AOL
Sample to a market research company designated by General
Motors ("GM") if the AOL Sample being provided to such market
research company is intended to be used in furtherance of a
broader commercial arrangement between GM and AOLTW.
ARTICLE 5
PERFORMANCE
5.1 RECEIPT OF AOL SAMPLE, LEVEL 2 SCREENING. SPSS shall be solely
responsible for the administrating and hosting of all Level 2 Screening
of OP Users received in real time from AOL for assignment to particular
surveys and projects; including, at AOL's option, the administration
and hosting of Level 2 Screening for AOLTW Projects. All Level 2
Screening of OP Users distributed to SPSS shall take place on the SPSS
customized survey engine and hosting platform as set forth in the
Certification Guidelines. In the event that SPSS administers and hosts
the Level 2 Screening for any AOLTW Project ("SPSS Services"), AOL
shall be responsible for the costs of such SPSS Services and the AOL
Sample utilized for such purposes shall not be counted as part of the
Capacity Allocation. At all times during the Term, SPSS shall be in
compliance with the Certification Guidelines. In addition to its
compliance with the Certification Guidelines, SPSS shall ensure that:
(i) Level 2 Screening and transfer of AOL Sample occurs in a
prompt fashion with a user interface consistent with the
Opinion Place look and feel as determined by AOL;
(ii) Level 2 Screening shall consist of no more than three (3)
screens of question(s) for project assignment determination,
and any further screening must take place within the survey
project itself; and
(iii) Level 2 Screening and project assignment will be executed in
the same fashion as currently executed by DMS.
9
For the avoidance of doubt, it is understood that all surveys presented
to OP Users shall be hosted either by AOL, SPSS or a Certified Partner,
subject, however, to AOL and SPSS' Level 1 and Level 2 Screening
obligations, respectively.
5.2 SPSS USE OF AOL SAMPLE. During the Term, each Party shall be
responsible for maintaining all infrastructure, systems and other
resources necessary to comply with the terms and conditions of this
Agreement, and in SPSS' case specifically including the Certification
Guidelines.
5.2.1 No Repetitive Use. SPSS shall ensure that all AOL Sample
provided hereunder to SPSS, including that which is passed
along to and hosted by a Certified Partner, shall not be used
more than once by SPSS or such Certified Partner for a
specific project occurrence, unless specifically agreed to by
AOL in writing.
5.2.2 Certified Partners. SPSS shall use best efforts to support all
Certified Partners in a timely and efficient manner and to
ensure effective system integration and project sample
hand-off in cases where SPSS does not program or host the
project interview.
5.2.3 Communication with AOL Sample. Unless otherwise agreed to by
AOL, OP Users may not be re-contacted and no personally
identifiable information relating to OP Users will be retained
by SPSS or any third party. Furthermore, neither SPSS nor any
SPSS Customer may request from any OP User the email address
or any other information which would allow SPSS or a SPSS
Customer to contact an OP User without AOL's express written
permission.
5.2.4 Restricted Projects. SPSS shall not, without AOL's prior
written consent, accept or execute any project using AOL
Sample if such project is (i) intended to target or identify
AOL Members or AOL membership (provided, however, that this
restriction shall not apply to AOLTW internal projects) or
(ii) is on behalf of an AOLTW Competitor.
5.2.5 Integration of Systems. SPSS shall be responsible for: (i)
effectuating the efficient and complete transfer to AOL of
completed AOL Sample information, including, without
limitation, all information provided in handoff, AOL Sample
transaction/survey project code, Incentive Award code, or
other data as required or requested by AOL in cases where SPSS
programs or hosts the project interview and (ii) facilitating
same transfer in cases where a Certified Partner to whom SPSS
has provided AOL Sample programs or hosts the project
interview. SPSS shall maintain best-in-class technology and
hosting strength capable of providing acceptable performance
to all constituents.
5.3 AOL FULFILLMENT OF SPSS PROJECT NEEDS. The Parties acknowledge and
agree that the goal of the relationship set forth herein is for AOL to
provide SPSS with a consistent and reliable source of sample with which
SPSS can satisfy its contractual obligations with respect to projects
for SPSS Customers; therefore a failure by AOL to provide SPSS with the
exact Capacity Allocation shall not, independently, be deemed a breach
of this Agreement by AOL. If, however, AOL fails to meet SPSS' AOL
Sample needs (as determined by the CPT and communicated to AOL) for any
specific SPSS project, such failure shall be deemed a breach by AOL;
provided, however, that SPSS' sole remedy for such a breach shall be
the right to increase, on a one-for-one basis, the OP Users Threshold
applicable for the Agreement Year in which the breach occurs or, at
SPSS' discretion, the next Agreement Year.
10
5.4 SPSS PROJECT SUPPORT OF AOLTW. AOL shall, within a period of not less
than twelve (12) months from the Launch Date, use good faith efforts to
provide SPSS with significant opportunities to provide survey
programming and hosting services to AOLTW and AOLTW Partners. In the
event that AOLTW hires SPSS to provide research services to AOLTW,
AOLTW shall receive the most favorable pricing offered by SPSS for all
software, hosting and support for SPSS' work on behalf of AOLTW. In the
event that the Parties mutually agree to use part of the Capacity
Allocation for AOLTW project work, then AOLTW shall pay SPSS for the
use of such Capacity Allocation, subject to the foregoing sentence.
5.5 GLOBAL SUPPORT SERVICES. AOL shall determine in its sole discretion how
AOL will address and meet AOL Sample needs that exist and may arise
outside North America. However, the Parties agree to use good faith
efforts during the Term to reach an agreement with respect to AOL's
distribution of sample which is drawn from international versions of
the Opinion Place Interactive Site(s). The Parties acknowledge and
agree that SPSS' right to receive AOL Sample as contemplated herein,
relates to sample to be provided by AOL from its domestic Opinion Place
Interactive Site(s). Notwithstanding the foregoing, SPSS shall not be
precluded from receiving AOL Sample provided by AOL from international
Opinion Place Interactive Sites if the parties mutually agree to such
an arrangement.
ARTICLE 6
INTELLECTUAL PROPERTY; DATA OWNERSHIP
6.1 OPINION PLACE LOOK AND FEEL. SPSS acknowledges and agrees that AOL owns
all right, title and interest in and to the elements of graphics,
design, organization, presentation, layout, user interface, navigation
and stylistic convention (including the digital implementations
thereof) which are generally associated with Opinion Place or any other
online areas contained within the AOL Network, subject to SPSS'
ownership rights in any SPSS Content within Opinion Place. SPSS
acknowledges and agrees that AOL owns all right, title, and interest in
and to the frame (and any other visible elements of client software)
appearing around Opinion Place when an OP User is viewing such site.
6.2 OP USER INFORMATION. Notwithstanding anything to the contrary in this
Agreement, AOL shall own any and all information collected from OP
Users in connection with (i) any AOLTW Project and (ii) all ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, including, without limitation, all
information relating to OP User screen names, names, passwords, email
addresses, addresses or other identifying information (collectively,
"Member Information"). SPSS shall ensure that its collection, use and
disclosure of Member Information complies with (a) all applicable laws
and regulations and (b) the Certification Guidelines. SPSS will not use
any Member Information for any purpose or disclose any such information
to any third party without the prior written consent of AOL, which
consent may be granted or withheld in AOL' sole and absolute
discretion.
6.3 OWNERSHIP RIGHTS OF AOL. Subject to Section 1.1, SPSS acknowledges and
agrees that all copyright, patent, trade secret, and other proprietary
rights in and to any methodologies, software, specifications,
documentation, reports, data, ideas, concepts, know-how, inventions and
other information or materials that are developed by AOL, or otherwise
become the property of AOL prior to, during or after the Term of this
Agreement shall be owned by and remain the exclusive property of AOL
and its licensors and shall not be retained by nor copied by SPSS
unless expressly agreed to in writing by AOL prior to such retention or
copying. SPSS acknowledges and agrees that all branding and associated
URL rights related to Opinion Place are the exclusive property AOL.
6.4 OWNERSHIP RIGHTS OF SPSS. AOL acknowledges and agrees that all
copyright, patent, trade secret, and other proprietary rights in and to
any methodologies, software, specifications, documentation, reports,
data, ideas, concepts, know-how, inventions and other information or
materials that are developed by SPSS, or otherwise
11
become the property of SPSS prior to, during or after the Term of this
Agreement, shall be owned by and remain the exclusive property of SPSS
and its licensors and shall not be retained by nor copied by AOL unless
expressly agreed to in writing by SPSS prior to such retention or
copying. SPSS and/or the applicable SPSS Customer shall own the OP User
responses to Level 2 Screening and survey questions for non-AOLTW
Projects.
ARTICLE 7
PAYMENTS AND REPORTING
7.1 SERVICE FEES. SPSS shall pay AOL a total of Forty-Two Million Dollars
($42,000,000) payable in cash and SPSS common stock as set forth below:
7.1.1 Common Stock. Simultaneously herewith, and as a condition
precedent to AOL's obligations hereunder, SPSS and AOL shall
enter into that certain Stock Purchase Agreement of even date
herewith (the "SPA"), pursuant to which SPSS shall issue and
deliver SPSS common stock to AOL in accordance with terms and
conditions of such SPA.
7.1.2 Cash Payments. SPSS shall pay AOL the sum of Thirty Million
Dollars ($30,000,000) and the Gap Amount, if applicable, in
installments payable in advance ("Guaranteed Payments"). The
first Guaranteed Payment shall be in the amount of Two Million
Eight Hundred Twelve Thousand Five Hundred Dollars
($2,812,500) and shall be paid by SPSS to AOL on the Effective
Date. Thereafter, SPSS shall make quarterly payments in an
amount equal to the sum of One Million Eight Hundred Twelve
Thousand Five Hundred Dollars ($1,812,500) and any applicable
Gap Amount, which payments shall be received by AOL no later
than thirty (30) days after the first day of each quarter
during the Term.
7.2 ADDITIONAL OP USER FEES. Immediately following the last day of each
Agreement Year, the Parties shall determine the aggregate number of OP
Users provided by AOL to SPSS in that Agreement Year. If in any
Agreement Year, AOL provides to SPSS a number of OP Users in excess of
the OP User Threshold, SPSS shall pay to AOL the Additional OP User
Cost for each OP User provided to SPSS above the OP User Threshold in
the applicable Agreement Year. Any amounts due under this Section 7.2,
shall be paid by SPSS to AOL, in immediately available funds, within
thirty (30) days following the first day of the Agreement Year
succeeding the Agreement Year in which the OP User Threshold was
exceeded.
7.3 WIRED PAYMENTS; PAYMENT CONTACT. All payments required hereunder shall
be paid in immediately available, non-refundable U.S. funds wired to
the "America Online" account, [ * .] In the
event of any questions regarding a payment made (or expected to be
made) by SPSS to AOL, AOL may contact ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇;
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇; ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
7.4 REPORTING. The Parties shall each maintain complete, clear and accurate
records of activity and performance in connection with the performance
of this Agreement. The Parties, through the CPT, shall mutually agree
on the exact reports and the format of such reports, necessary to
properly monitor each Parties respective performance hereunder.
* Confidential information has been omitted from this sentence and
such confidential information has been separately filed with the
Securities and Exchange Commission.
12
ARTICLE 8
TERM; RENEWAL; TERMINATION
8.1 TERM. Unless earlier terminated as set forth herein, the term of this
Agreement will be four (4) years from the Effective Date (the "Term").
8.2 TERMINATION FOR BREACH. Either Party may terminate this Agreement at
any time in the event of a material breach of the Agreement by the
other Party which remains uncured after thirty (30) days written notice
thereof to the other Party (or such shorter period as may be specified
elsewhere in this Agreement); provided that the cure period with
respect to any scheduled payment shall be fifteen (15) days from the
date for such payment provided for herein ("Payment Cure Period"). If
SPSS fails to make a scheduled payment prior to the end of the Payment
Cure Period, the SPSS Renewal Right shall immediately be void, shall
have no further force or effect and AOL shall have the right, in its
sole discretion, to immediately terminate this Agreement.
Notwithstanding the foregoing, in the event of a material breach of a
provision that expressly requires action to be completed within an
express period shorter than thirty (30) days, either Party may
terminate this Agreement if the breach remains uncured after written
notice thereof to the other Party and expiration of such express
period.
8.3 TERMINATION FOR BANKRUPTCY/INSOLVENCY. Either Party may terminate this
Agreement immediately following written notice to the other Party if
the other Party (i) ceases to do business in the normal course, (ii)
becomes or is declared insolvent or bankrupt, (iii) is the subject of
any proceeding related to its liquidation or insolvency (whether
voluntary or involuntary) which is not dismissed within ninety (90)
calendar days or (iv) makes an assignment for the benefit of creditors.
8.4 TERMINATION ON CHANGE OF CONTROL. In the event of a Change of Control
of SPSS resulting in control of SPSS by an AOLTW Competitor or the
acquisition by SPSS of a controlling interest in an Interactive
Service, AOL may terminate this Agreement by providing thirty (30) days
written notice.
8.5 TERMINATION FOR CHANGE OF BUSINESS. Either Party may terminate this
Agreement upon one hundred eighty (180) days written notice to the
other Party of such Party's decision to exit the business contemplated
hereunder ("Notification Period"). If AOL terminates under this
Section, AOL shall not make AOL Sample available to third parties,
excluding, however, for AOLTW Projects, for a period of one (1) year
from the date of termination. If SPSS terminates under this Section,
SPSS shall not enter into any agreement with any third party provider
of Internet sample for purpose of resale to market research
organizations for a period of one (1) year from the date of
termination. If AOL is the terminating party under this Section 8.5,
AOL shall refund to SPSS any pro-rata portion of the quarterly cash
payments (made pursuant to Section 7.1.2) made for the then-current
quarter within the then-current Agreement Year. If SPSS is the
terminating party, SPSS shall pay to AOL all payments due to AOL
hereunder, including, without limitation, payments due during the
Notification Period (pro-rated as applicable based on the date of
termination) and AOL shall be entitled to retain all payments made by
SPSS to AOL hereunder.
8.6 RENEWAL. In the event that SPSS has satisfied the Performance Metrics
set forth in Exhibit F and provided that neither Party has terminated
this Agreement pursuant to its rights set forth in Sections 8.2, 8.3,
8.4, or 8.5, SPSS shall have the right to notify AOL of its desire to
negotiate in good faith the terms of a renewal of this Agreement for a
new two (2) year term ("Renewal Right"). Such Renewal Right shall be
subject to the terms and conditions of this Section 8.6 as set forth
below:
(i) SPSS must exercise its Renewal Right by providing
written notice to AOL that is received by AOL on or
before the date that is one hundred eighty (180) days
prior to the end of the Term (or any renewal term, as
applicable) ("Renewal Notification").
(ii) Unless otherwise agreed to by the Parties, any such
renewal must include the following terms: (a)
Exclusive Distributor rights for SPSS, (b)
substantially similar terms, in all material
respects, as this Agreement; specifically including
delivery by AOL of a volume of AOL Sample to SPSS
which is comparable to the levels delivered in
Agreement Year 4 and annual payments by SPSS
13
to AOL, in cash, of no less than Ten Million Five
Hundred Thousand Dollars ($10,500,000) (a "Renewal
Agreement").
(iii) No later than thirty-one (31) days following its
receipt of the Renewal Notification, AOL shall inform
SPSS of its desire to (a) enter into negotiations
with SPSS regarding a Renewal Agreement, (b) enter
into a New Exclusive Distributor Agreement, (c) enter
into Distributor Agreements with multiple parties or
(d) exit the business of providing AOL Sample for
distribution by unaffiliated parties. If the Parties
are unable to execute a definitive Renewal Agreement
within thirty (30) days after beginning negotiations,
AOL shall have the right to negotiate with and
execute an New Exclusive Distributor Agreement or
Distributor Agreement with any party it chooses,
subject to the Renewal Buyout Payment (as defined
below).
(iv) If the Parties enter into a Renewal Agreement and
provided that (a) SPSS satisfies the applicable
performance metrics set forth in such Renewal
Agreement and (b) such Renewal Agreement is not
terminated by either Party pursuant to its rights
thereunder, SPSS shall have a second Renewal Right
which shall be governed by the same terms and
conditions as set forth above with respect to any
second renewal agreement.
8.6.1 New Exclusive Distributor Agreement. AOL may, in its sole
discretion, enter into an agreement with any third party
pursuant to which AOL provides that third party with Exclusive
Distributor rights ("New Exclusive Distributor"); provided,
however, that no such agreement ("New Exclusive Distributor
Agreement") shall extinguish or terminate the SPSS Access
Right. Any such New Exclusive Distributor Agreement shall
require that such New Exclusive Distributor shall not operate
in an anti-competitive fashion with respect to its provision
of AOL Sample to Certified Partners (i.e., unreasonably deny,
delay, limit or hinder the receipt and/or use by Certified
Partners of AOL Sample for the sole benefit of its interests,
including by way of unreasonable pricing for AOL Sample).
8.6.2 Multiple Distributor Model. AOL may, in its sole discretion,
enter into agreements with multiple parties (each a
"Distributor Agreement"), pursuant to which AOL agrees to
provide such parties (each, a "Distributor") with AOL Sample
and the right to redistribute such AOL Sample to Certified
Partners (collectively, a "Multiple Distributor Model"). In
the event that AOL decides to implement a Multiple Distributor
Model and AOL and SPSS enter into a Distributor Agreement,
such agreement shall provide SPSS with pricing for AOL Sample
that is equal to or better than the AOL Sample pricing charged
to other Distributors ("MFN Pricing"); provided that any such
MFN Pricing shall be coterminous with the term of the
Distributor Agreement between AOL and SPSS.
8.6.3 Renewal Buyout Payment. AOL shall pay SPSS [ * ]
(the "Renewal Buyout Payment"), if and only if (i) AOL and
SPSS do not enter into a Renewal Agreement or Distributor
Agreement AND (ii) AOL (a) enters into a New Exclusive
Distributor Agreement, (b) enters into Distributor Agreements
with multiple parties, excluding SPSS, under a Multiple
Distributor Model, or (c) resumes its role as a "Major
Distributor," all within the period beginning on the
expiration date of this Agreement and ending twelve (12)
months thereafter ("Renegotiation Period"). AOL shall be
deemed a "Major Distributor" if during the Renegotiation
Period AOL (x) enters into agreements with more than ten (10)
separate market research companies pursuant to which AOL
provides AOL Sample directly to such market research companies
(each a "Retail Distribution Agreement") or (y) places
advertisements in any market research industry trade press
promoting AOL's direct distribution of AOL Sample ("Retail
Distribution Ads"). Notwithstanding the foregoing, any
agreements between AOL and market research companies which
provide for AOL to distribute AOL Sample to such market
research companies in connection AOLTW Projects shall not be
counted as Retail Distribution Agreements in determining
whether AOL has resumed it role as a Major Distributor during
the Renegotiation Period. For the avoidance of doubt, AOL
shall have no obligation to make the Renewal Buyout Payment to
SPSS in the
* Confidential information has been omitted from this
sentence and such confidential information has been
separately filed with the Securities and Exchange
Commission.
14
event that (a) SPSS notifies AOL that it has no interest in
entering into a Renewal Agreement or a Distributor Agreement
within a Multiple Distributor Model, (b) SPSS is no longer
conducting business in the ordinary course at the time when
the Parties are to negotiate the terms of any Renewal
Agreement, (c) SPSS failed to satisfy the Performance Metrics
and deliver the Renewal Notice as called for in Section
8.6(i), or (d) this Agreement has been terminated by either
Party.
8.6.3.1 Payment. In the event that the Renewal Buyout Payment is
triggered as set forth above, AOL shall make such Renewal
Buyout Payment to SPSS no later than thirty (30) days
following:
(i) AOL's execution of the New Exclusive Distributor
Agreement;
(ii) AOL's execution of the Distributor Agreements under a
Multiple Distributor Model which excludes SPSS;
(iii) AOL's execution of the eleventh Retail Distribution
Agreement; or
(iv) the date upon which the first Retail Distribution Ad
is published.
ARTICLE 9
MISCELLANEOUS
9.1 PURCHASE OF SPSS SOFTWARE. AOL and SPSS shall negotiate and enter into
an agreement on mutually agreeable terms, pursuant to which AOL shall
purchase One Million Dollars ($1,000,000) of SPSS software and related
services, of AOL's choosing, by December 31, 2001.
9.2 OVERHEAD ACCOUNTS. To the extent AOL has granted SPSS any overhead
accounts on the AOL Service, SPSS will not be liable for charges
incurred by any overhead account relating to AOL's standard monthly
usage fees and standard hourly charges, which charges AOL will bear;
provided that SPSS will be responsible for the actions taken under or
through its overhead accounts, which actions are subject to AOL's
applicable Terms of Service and for any surcharges, including, without
limitation, all premium charges, transaction charges, and any
applicable communication surcharges incurred by any overhead Account
issued to SPSS. Upon the termination of this Agreement, all overhead
accounts, related screen names and any associated usage credits or
similar rights, will automatically terminate. AOL will have no
liability for loss of any data or content related to the proper
termination of any overhead account.
9.3 PERSONNEL. During the Term and for a period of twelve (12) months
thereafter, neither Party shall directly or indirectly, solicit,
induce, or in any manner attempt to influence any Restricted Employee
to terminate his or her employment with the other Party, provided,
however, that either Party may employ any person who (a) initially
contacts such Party without solicitation, directly or indirectly, by
such Party or (b) responds to any general media solicitation of
employment or engagement by such Party or to any solicitation or
inquiry from a recruiter retained by such Party provided that such
person is not specifically identified or targeted by such Party for
such solicitation or inquiry. "Restricted Employee" shall mean any
person employed by either Party who is or was involved in the
negotiation, implementation, or administration of this Agreement.
9.4 PRESS RELEASES. Each Party shall submit to the other Party, for its
prior written approval, which shall not be unreasonably denied or
delayed, any press release or similar public statement ("Press
Release") regarding the transactions contemplated hereunder, provided
that, subsequent to the initial Press Release, factual references by
either Party to the existence of a business relationship between the
Parties shall not require approval of the other
15
Party. Notwithstanding the foregoing, either Party may issue Press
Releases and other disclosures as required by law without the consent
of the other Party and in such event, the disclosing Party shall
provide at least five (5) business days prior written notice of such
disclosure. The failure by one Party to obtain the prior written
approval of the other Party prior to issuing a Press Release (except as
required by law) shall be deemed a material breach of this Agreement.
9.5 INDEPENDENT CONTRACTORS. Notwithstanding anything contained in this
Agreement to the contrary, the Parties to this Agreement are
independent contractors. Neither Party is an agent, representative or
employee of the other Party. Neither Party will have any right, power
or authority to enter into any agreement for or on behalf of, or incur
any obligation or liability of, or to otherwise bind, the other Party.
This Agreement will not be interpreted or construed to create an
association, agency, joint venture or partnership between the Parties
or to impose any liability attributable to such a relationship upon
either Party.
9.6 STANDARD TERMS. All Exhibits and Schedules hereto (including the
Standard Legal Terms & Conditions set forth on Exhibit B attached
hereto are each hereby made a part of this Agreement).
16
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
Effective Date.
AMERICA ONLINE, INC. SPSS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Sr. Vice President Title: President and
Business Affairs Chief Executive Officer
& Development Date: October 22, 2001
Date: October 22, 2001
17