EXHIBIT 10.45
CONFIDENTIAL
AMENDED AND RESTATED STRATEGIC ONLINE RESEARCH SERVICES AGREEMENT
This Amended and Restated Strategic Online Research Services Agreement
(this "Agreement"), dated as of October 1, 2003 (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;
WHEREAS, AOL and SPSS entered into a prior strategic online research
services agreement, dated October 22, 2001 (the "Prior Agreement") in which AOL
(i) provided SPSS with access to AOL Members and other Internet users that
visited AOL's Opinion Place(R) market research portal(s) for the purpose of
participating in online surveys (collectively, "OP Users") and (ii) made SPSS
AOL's exclusive domestic distributor of AOL Sample to approved third parties in
the market research industry in exchange for Forty-Two Million Dollars
($42,000,000) payable in cash and SPSS common stock par value $0.01 per share
(the "SPSS Common Stock");
WHEREAS, as of the Effective Date, SPSS has paid AOL the sum of Fifteen
Million Five Hundred Thousand Dollars ($15,500,000) in cash, as well as Six
Million Dollars ($6,000,000) in SPSS Common Stock, as consideration under the
Prior Agreement, representing a portion of the total amount due by SPSS to AOL
under the terms of the Prior Agreement; and
WHEREAS, AOL and SPSS now desire to amend and restate the terms and
conditions of the Prior Agreement and enter into a revised strategic agreement
that shall terminate and replace the Prior Agreement as of the Effective Date
and govern the relationship between the Parties regarding the subject matter
herein.
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 intellectual property rights directly
associated therewith (excluding the OP River Methodology and all
related intellectual property rights), as such Landscape Software is
described in Exhibit D, to SPSS. SPSS acknowledges that AOL has
previously delivered or otherwise made available to SPSS a copy of the
Landscape Software (as it existed on October 22, 2001) and that AOL
shall have no further obligation to make a copy of such original
version of the Landscape Software available to SPSS.
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In addition, AOL shall have no further obligation to maintain, modify,
or enhance the Landscape Software. AOL shall retain full ownership of
the OP River Methodology and all related Intellectual Property Rights.
Notwithstanding the foregoing, the Parties acknowledge that the OP
River Methodology is implemented in the Landscape Software and agree
that SPSS may utilize the OP 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 OP 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
infringed upon AOL's rights in the Landscape Software or the OP 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. The representations and warranties made by AOL
pursuant to this Section relate solely to the version of the Landscape
Software delivered on October 22, 2001 and do not extend to any
modifications or updates made after such delivery. 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. In addition to the indemnities contained in
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
perpetual, nonexclusive, royalty-free, fully paid-up, irrevocable right
and license to use, execute, display, copy, perform, modify 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
on-line market research activities provided herein, including without
limitation loyalty marketing programs (the "License"). In addition,
SPSS hereby grants AOL and AOL accepts a perpetual, nonexclusive,
royalty-free, fully paid-up, irrevocable right and license to use,
execute, display, copy, perform, modify and make derivative works based
upon any and all derivative works produced or created by SPSS or its
agents from the Landscape Software ("SPSS Derivative Works"); provided,
however that AOL may not sublicense or otherwise make available the
SPSS Derivative Works to any third party during the Term of this
Agreement. 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. The Parties acknowledge and agree that this Agreement shall in
no way restrict AOL's rights with respect to such AOL Derivative Works.
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1.2.1 Sublicensing Rights. AOL may sublicense the rights granted
herein with respect to the Landscape Software and the SPSS
Derivative Works 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 OP River
Methodology in connection with sample provided by any AOLTW Competitor
(the "SPSS Landscape Restrictions"). Notwithstanding anything contained
in this Agreement to the contrary, in the event that this Agreement
expires by its natural terms, AOL terminates this Agreement pursuant to
its rights under Sections 8.2, 8.3, 8.4, the Parties acknowledge that
SPSS shall retain its ownership rights in and to the Landscape Software
and any related intellectual property (excluding the OP River
Methodology, which shall continue to be the sole property of AOL) and
that AOL will retain its License to use, execute, display, copy,
perform, modify and make derivative works based upon the Landscape
Software in perpetuity.
ARTICLE 2
ACCESS TO OPINION PLACE USERS
2.1 TRANSFER OF OP USERS, SPSS ACCESS RIGHT. Beginning on the Effective
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. Furthermore, SPSS shall have the right to host OP Users
during and only for the Term of this Agreement ("SPSS Access Right"),
provided, however, that SPSS must remain in compliance with the
Accreditation Guidelines.
2.2 CAPACITY PLANNING. Pursuant to the Prior Agreement, the Parties have
established and implemented a capacity planning team ("CPT") that acts
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, as a minimum, provide sufficient sample to
meet SPSS's needs in regard to SPSS's obligation to purchase minimum
completes as described in section 7.2 (ii) below, provided that SPSS's
request complies with the CPT procedures and that current monthly
Utilization Rates are at or above twenty five percent (25%) and current
monthly Completion Rates are at or above seventy percent (70%).
("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 previously established by the CPT in
accordance with the Prior Agreement. The Parties understand that (a)
the exact number of OP Users will fluctuate by day, week and
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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 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. If, however, AOL is
unable to provide the Capacity Allocation, SPSS's payments to AOL will
be modified in accordance with section 5.3 below.
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 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 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) Review Master CPT Project Status Report; and
(vii) Establish weekly and 30 day SPSS AOL Sample
needs through SPSS declaration of upcoming
projects.
(b) 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
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about whether the project is reasonable or not based
on the Reasonable Project Guidelines before
proceeding to Step 2.
(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 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.
(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 U.S. 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
surveys on various areas on the AOL Network which surveys do not rely upon the
OP River Methodology or a methodology 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. 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.
AOL may, however, launch other research sites that are not
Opinion Place Interactive Sites and which shall not be subject
to the terms of 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 the demographics and
non-study specific profiling currently being used by AOL
("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. "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
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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 responsible for paying all
standard costs of up to Two Dollars and Twenty-Five Cents
($2.25) per survey that is fully completed by an OP User
("Completed Survey"). Such costs will be calculated at AOL's
actual costs, with no markup to account for internal AOL
overhead or similar costs. In addition, AOL shall be
responsible to operate and maintain the Incentive Platform,
which is to be integrated into the market research arrangement
as set forth in this Agreement (the "Standard Costs
Threshold"). In the event that the Standard Costs Threshold
increases due to increases in non-AOL Incentives, AOL shall
pass through such costs to SPSS through an increase to the
Standard Costs Threshold, provided however that AOL shall
provide SPSS with forty five (45) days prior written notice
before passing through such costs. In the event that the
Standard Costs Threshold increases due to increases in AOL
Incentives, AOL shall be responsible for such increase unless
otherwise agreed. In addition, 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 American AAdvantage Miles or $2.25 of
credit towards an AOL Member's current monthly ▇▇▇▇ for a 15
minute survey) as set forth in the Accreditation 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. In the event that the Incentive Platform is altered in
a material way, including but not limited to the costs of
operating such Incentive Platform increasing by ten percent
(10%) or greater, AOL shall notify SPSS of such material
change and the Parties agree to negotiate any revisions to the
Standard Costs Threshold to make it economically viable for
AOL to continue to operate the Incentive Platform.
2.4 ADVISORY BOARD. The Parties shall create an advisory board to provide
management, marketing and general business advice to SPSS in its
distribution of the AOL Sample (the "Advisory Board"). The Advisory
Board shall consist of senior SPSS, AOL and DMS executives chosen by
each Party to provide their expertise to SPSS (the "Advisory Board
Members"). The Advisory Board will serve only in an advisory role to
SPSS and shall have no management powers, duties or responsibilities
whatsoever regarding SPSS' distribution, control or use of the AOL
Sample. The Advisory Board shall meet at least once each month to
review marketing plans, strategies, processes and benchmarks to help
SPSS maximize its effectiveness in the marketplace. The date for each
meeting will be set in advance at mutually convenient times and at
rotating locations, including Chicago, Dallas and Dulles. SPSS
acknowledges that all distribution, control or use of the AOL Sample
and any decisions that SPSS
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makes in regards thereto, whether or not SPSS shall have received
advice from the Advisory Board, shall be made by SPSS in its sole
discretion (subject to the terms and condition of this Agreement). IN
ADDITION TO ANY OTHER RELATED PROVISIONS CONTAINED HEREIN THIS
AGREEMENT, UNDER NO CIRCUMSTANCES SHALL THE ADVISORY BOARD NOR ANY
ADVISORY BOARD MEMBERS BE LIABLE TO SPSS FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE,
AND WHETHER OR NOT SPSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE, ARISING FROM ANY ADVICE OR INSTRUCTION PROVIDED BY THE ADVISORY
BOARD OR THE ADVISORY BOARD MEMBERS. SPSS AGREES THAT THE LIMITATIONS
SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED
REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE. Except for damages caused by the willful misconduct
of an Advisory Board Member, SPSS will defend, indemnify and hold
harmless the Advisory Board and the Advisory Board Members from and
against any and all claims, costs, losses, damages, judgments and
expenses (including reasonable attorneys' fees) arising out of or in
connection with SPSS' distribution, control or use of the AOL Sample.
ARTICLE 3
ACCREDITATION
3.1 ACCREDITATION PROCESS. All parties, including SPSS, that desire to host
OP Users must be accredited by AOL pursuant to the Accreditation
Guidelines set forth in Exhibit C of this Agreement (each an
"Accredited 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
accreditation process. The Accreditation 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 Accreditation Guidelines.
SPSS shall (i) inform all prospective SPSS Customers of the AOL
accreditation requirement, (ii) confirm with AOL that any SPSS Customer
that desires to host OP Users has been accredited by AOL before SPSS
provides AOL Sample to any such SPSS Customer, and (iii) promptly
inform AOL of any noncompliance with the Accreditation 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 Accreditation Guidelines with respect to
that particular project and such SPSS Customers shall not be required
to be Accredited Partners. It is understood that AOL may certify third
parties in its sole discretion based on the Accreditation 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 an Accredited Partner is in material breach of the
Accreditation Guidelines, AOL may require that SPSS immediately cease
providing AOL Sample to such Accredited 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
the AOL Sample to Accredited Partners ("Exclusive Distributor"). With
respect to any contractual obligations of SPSS to
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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.
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 Accredited Partners (i.e., unreasonably deny,
delay, limit or hinder the receipt and/or use by Accredited
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.
4.1.3 Value Brand Strategy. The Parties have had discussions
regarding AOL's intention to launch a lower cost panel
recruitment market research alternative to Opinion Place
("Value Brand"), which Value Brand would neither be available
within Opinion Place nor rely upon the OP River Methodology;
unless otherwise agreed to by the Parties. AOL and SPSS shall
in good faith, during the Initial Term, enter into discussions
regarding the Value Brand strategy and how the Parties might
work together to launch such a product and service. During the
period commencing on the Effective Date and ending eight
months thereafter (the "Standstill Period"), AOL shall not
make any such Value Brand commercially available without the
written consent of SPSS. If the Parties are unable to reach an
agreement with respect to their joint involvement on a Value
Brand by the expiration of the Standstill Period, AOL shall
not be restricted from making such Value Brand commercially
available.
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 run on AOL's Landscape
System. Running the Level 2 Screening on the Landscape System is a
requirement for system monitoring and survey reporting (e.g.,
incidence). If SPSS believes that there is a tangible business benefit
for moving Level 2 Screening to its own
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platform, SPSS may make such a request to AOL and AOL shall determine
in its sole reasonable discretion whether the change shall be made. 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 Accreditation
Guidelines. In addition to its compliance with the Accreditation
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.
For the avoidance of doubt, it is understood that all surveys presented
to OP Users shall be hosted either by AOL, SPSS or a Accredited
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 Accreditation
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 Accredited Partner, shall not be used
more than once by SPSS or such Accredited Partner for a
specific project occurrence, unless specifically agreed to by
AOL in writing.
5.2.2 Accredited Partners. SPSS shall use commercially reasonable
efforts to support all Accredited 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
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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 Accredited 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 use commercially
reasonable efforts to meet SPSS' AOL Sample needs (as determined by the
CPT and communicated to AOL) more than three (3) times in a single
month, such failures together shall be deemed a material breach of this
Agreement by AOL. If, however, AOL fails to provide sufficient sample
to meet the Capacity Allocation, AOL shall provide SPSS with a credit
for each Completed Survey that AOL fails to deliver against future
deliveries of Completed Survey, provided however that SPSS shall not
use such credits to pay less than the monthly minimum as described in
Section 7.2 (ii). Notwithstanding the foregoing, in the event that SPSS
has unused credits at the expiration or earlier termination of the
Agreement, such credits shall be first credited against amounts then
due from SPSS to AOL. Any remaining balance shall be paid by AOL to
SPSS.
5.4 SPSS PROJECT SUPPORT OF AOLTW. 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.
5.5 PERFORMANCE REVIEW. Upon completion of the eighth full month of the
Initial Term, the Parties shall conduct a performance review of the
business relationship between the Parties under the Agreement to
determine whether the operation remains economically viable for both
Parties. In order for the business relationship between the Parties to
continue after the expiration of the Initial Term, the following
criteria must be met:
(i) In at least one of the sixth, seventh or eighth
months of the Initial Term, SPSS must purchase 37,999
Completed Surveys;
(ii) In at least one of the sixth, seventh, or eighth
months of the Initial Term, the Utilization Rate (as
defined below) must equal at least thirty-five
percent (35%); and
(iii) In at least one of the sixth, seventh, or eighth
months of the Initial Term, SPSS' Completion Rate (as
defined below) must be greater than or equal to the
lesser of: (a) seventy-five percent (75%) or (b)
AOL's Completion Rate (as defined below) less three
percentage points (3%).
The "Utilization Rate" is defined according to current CPT definitions
created for the OP River Methodology. This metric is a fraction, the
numerator of which is the total number of Completed Surveys purchased
by SPSS and the denominator of which is the number of OP Users
completing Level 2 Screening required to execute those SPSS Completed
Surveys (measured as "Sample Needed by SPSS" on the CPT sample usage
report). Utilization Rates shall be rounded up to the next whole
percentage. The actual Utilization Rate can be adjusted as follows:
SPSS can increase any or all of the monthly rates by adding one or more
percentage points, provided, however,
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that the maximum number of points that SPSS can add over the entire
initial nine-month period is nine percentage points (9%).
The "Completion Rate" shall coincide with the current CPT definition.
This metric is a fraction, the numerator of which is the total number
of Completed Surveys purchased by SPSS and the denominator of which is
the number of people who qualified for those Completed Surveys and were
informed of such qualification created for the OP River Methodology.
Specifically, the "SPSS Completion Rate" shall mean the aggregated
completion rate across all surveys conducted in Opinion Place by SPSS.
The "AOL Completion Rate" shall mean the aggregated completion rate
across all surveys conducted in Opinion Place by AOL.
If all of the above criteria are met, SPSS shall have the option of
continuing the Agreement (in accordance with the terms and conditions
set forth in Section 5.5.2 below) after the expiration of the Initial
Term or allowing the Agreement to expire at the end of the Initial Term
(in accordance with the terms and conditions set forth in Section 5.5.1
below). If any of the above criteria are not met by SPSS, then AOL
shall have the option of terminating this Agreement upon ninety (90)
days prior written notice to SPSS or continuing the Agreement subject
to the terms and conditions of Section 5.5.1.
5.5.1 Agreement is Aborted. If all of the above criteria are met and
SPSS chooses to abort the Agreement:
(a) SPSS shall be responsible to AOL for payment of all
Monthly Fees and Minimum Completed Survey Fees, as
described in Section 7.2, due for the first eleven
(11) months of the Initial Term;
(b) The Exclusivity Period shall terminate after the
first eight (8) months of the Initial Term; and
(c) SPSS shall continue to be responsible for the costs
of the Completed Surveys that it purchases, as well
as any excess incentive costs above the Standard
Costs Threshold described in Section 2.3.3, for the
entire Initial Term of the Agreement.
5.5.2 Agreement is Not Aborted. If all of the above criteria are met
and SPSS chooses not to abort the Agreement, the Parties shall
continue the business arrangement contemplated by this
Agreement during the Initial Term under all of the terms and
conditions set forth herein applicable to the Initial Term;
thereafter the Agreement will be extended for an additional
twelve (12) months (the "Renewal Period") subject to the
following additional terms:
(a) The Minimum Completed Survey Fees shall be billed on
a monthly basis at the rate of 45,833 Completed
Surveys per month. These payments shall be adjusted
at the end of each quarter based on actual usage.
(b) The Monthly and Minimum Completed Survey Fees may be
increased by as much as five percent (5%) if, under
AOL's sole discretion, changes in the marketplace
warrant such an increase in fees;
(c) Performance reviews will be conducted on a quarterly
basis -- if SPSS fails to satisfy any of the specific
performance criteria listed below in this Section
5.5.2(c) at the end of any quarter and fails to
satisfy the same performance criteria in the
following quarter, AOL shall have the right to
terminate the Agreement effective after the second
quarter following the second quarter in which SPSS
failed to satisfy the performance criteria;
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(i) SPSS agrees to purchase at least 549,996 Completed
Surveys during the Renewal Period, provided that such
Completed Surveys are reasonably requested in
accordance with the CPT;
(ii) The Utilization Rate must equal at least forty
percent (40%); and
(iii) SPSS' Completion Rates must be greater than or equal
to the lesser of: (a) seventy-five percent (75%) or
(b) AOL's Completion Rate less three percentage
points (3%);
and
(d) AOL shall offer SPSS a new agreement on commercially
reasonable terms during the fifth month of the Renewal Period
to replace this Agreement once the Renewal Period expires (the
"New Agreement Proposal") and SPSS shall have thirty (30) days
to declare whether it shall accept the terms of the new
agreement. If SPSS does not agree to the New Agreement
Proposal, then AOL shall have no obligation to renew this
Agreement or enter into a new agreement with SPSS following
the expiration of the Renewal Period.
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 comply with (a) all applicable laws
and regulations and (b) the Accreditation 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 of AOL
and may not be shared with any of AOL's competitors, including but not
limited to Knowledge Networks.
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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 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 AMENDMENT TO STOCK PURCHASE AGREEMENT. Simultaneously herewith, and as
a condition precedent to AOL's obligations hereunder, SPSS and AOL
shall enter into that certain Amendment to the Stock Purchase Agreement
of even date herewith.
7.2 MONTHLY AND MINIMUM COMPLETED SURVEY FEES. SPSS agrees to pay AOL the
following fees under the terms of the Agreement:
(i) Monthly Fees - SPSS shall pay AOL a guaranteed fee
payment of One Hundred Ninety-Five Thousand
($195,000) per month; and
(ii) Minimum Completed Survey Fees - SPSS shall purchase a
minimum of 345,000 Completed Surveys during the
Initial Term of the Agreement and a minimum of
549,996 during the Renewal Period, subject to Section
5.5.1 above, at $7.50 per Completed Survey if the
monthly Utilization Rate is below forty percent (40%)
(the cost shall be reduced to $6.75 per Completed
Survey if the monthly Utilization Rate is equal to or
exceeds forty percent (40%)). Monthly payments shall
be made for 23,000 Completed Surveys or such other
minimums as may be required in any Renewal Periods.
These payments shall be adjusted at the end of each
month based on actual usage and actual monthly
Utilization Rates.
(iii) First Month Adjustment -- The Parties have agreed
that SPSS' payment to AOL with respect to the first
month of the Agreement will be reduced by a credit in
the amount of One Hundred Twenty-Four Thousand One
Hundred Seventy-Six Dollars ($124,176). All payments
due and payable by SPSS to AOL under this Agreement
shall be received by AOL no later than thirty (30)
days following the month for which such payments were
due.
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, Account Number 323070752 at ▇▇ ▇▇▇▇▇▇
Chase, Four ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (ABA: ▇▇▇▇▇▇▇▇▇). 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.
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ARTICLE 8
TERM; TERMINATION
8.1 TERM. Unless earlier terminated as set forth herein, the term of this
Agreement shall begin on the Effective Date and continue for a period
of fifteen (15) months from the Effective Date (the "Initial Term" and
together with any Renewal Period (as set forth in Section 5.5.2, the
"Term"). The Prior Agreement shall be terminated effective as of August
31, 2003.
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, including but not limited to a failure to satisfy the
performance requirements as set in Article 5 or make the required
payments under Article 7, 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 (the "Payment Cure
Period"). If SPSS fails to make a scheduled payment prior to the end of
the Payment Cure Period, SPSS' right to abort or continue the Agreement
under Section 5.5 shall immediately be void and 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.
ARTICLE 9
MISCELLANEOUS
9.1 INTENTIONALLY DELETED.
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.
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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 Party. Notwithstanding
the foregoing, either Party may issue Press Releases or 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 day's 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).
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IN WITNESS WHEREOF, the Parties hereto have executed this Amended and Restated
Strategic Online Services Agreement as of the Effective Date.
AMERICA ONLINE, INC. SPSS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ Hamburg
------------------------------- --------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ Hamburg
Title: Senior Vice President Title: Executive Vice President, Corporate
of Marketing Operations, Chief Financial Officer
Date: October 14, 2003 and Secretary
Date: October 14, 2003
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EXHIBIT A
DEFINITIONS
AGREEMENT YEAR. The period beginning on Effective Date and ending on the last
day of the calendar month in which the twelve-month anniversary of the Effective
Date occurs and each successive twelve-month period thereafter during the Term.
AOLTW. AOL Time Warner Inc., including any successor, affiliate and subsidiary
companies (e.g., AOL, Time Warner, DMS, etc.).
AOLTW COMPETITOR. Any Interactive Service or any entity that operates or
controls a diverse array of media holdings, including, without limitation,
filmed entertainment, broadcasting, cable television, publishing, music and
online services. By way of example and without limiting the generality of the
foregoing, News Corp., Viacom, Disney, Vivendi-Universal, USA Networks, and Sony
Corp.
AOL MEMBER. Any authorized user of the AOL Network(s), as applicable, including,
without limitation, any sub-accounts using the AOL Network under an authorized
master account.
AOL NETWORK. The AOL Service, the CompuServe Service, Netscape Netcenter,
Opinion Place and/or such other products or services offered or distributed by
or through AOL or an affiliate, as designated by AOL at any time during or after
the Term.
AOL SAMPLE. Collectively, the domestic OP Users distributed by AOL to SPSS
and/or by SPSS to Accredited Partners as set forth in this Agreement.
AOL SERVICE. The narrow-band U.S. version of the America Online(R) brand
service, specifically excluding any property, feature, product or service which
AOL or its affiliates may acquire subsequent to the Effective Date and any other
version of an America Online service which is materially different from the
narrow-band U.S. version of the America Online brand service, by virtue of its
branding, distribution, functionality, Content or services, including, without
limitation, any co-branded version of the service and any version distributed
through any broadband distribution platform or through any platform or device
other than a desktop personal computer.
ACCREDITATION GUIDELINES. The AOL-DMS Accreditation Guidelines and Opinion Place
Hosting Requirements as set forth in Exhibit C attached to this Agreement, which
any party desiring to host OP Users must comply with in order to be accredited
by AOL to host OP Users.
CPT. The Capacity Planning Team, a unified body established by the Parties to
monitor, anticipate, determine and communicate SPSS' AOL Sample needs to AOL, as
more specifically described in Section 2.2.
COMPUSERVE SERVICE. The standard HTML version of the narrow-band U.S. version of
the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe), (b) any property, feature, product
or service which CompuServe or its affiliates may acquire subsequent to the
Effective Date, (c) the America Online brand service and any independent product
or service which may be offered by, through or with the U.S. version of the
America Online brand service and (d) the HMI versions of the CompuServe brand
service.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of the negotiation or performance of this Agreement, which is or should be
reasonably understood by the receiving Party to be confidential or proprietary
to the disclosing Party, including, but not limited to, the material terms of
this Agreement, information about AOL Members, technical processes and formulas,
source codes, product designs, sales, cost and other unpublished financial
information, product and business plans, projections, and marketing data, but
specifically excluding the Licensed Content. "Confidential Information" will not
include information (a) already lawfully known to or independently developed by
the receiving Party, (b) disclosed in published materials, (c) generally known
to the public, or (d) lawfully obtained from any third party.
CONTENT. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, pointers, technology and software.
DMS PARTNER. Any third party research customer of DMS.
EXCLUSIVITY PERIOD. Any period in which SPSS is the Exclusive Distributor of AOL
Sample, as set forth in Section 1.3.
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IMPRESSION. End user exposure to the applicable promotion, as such exposure may
be reasonably determined and measured by AOL in accordance with its standard
methodologies and protocols.
INCENTIVE PLATFORM. The AOL managed incentive program that provides the currency
for various actions taken by OP Users, specifically taking online surveys.
INCENTIVE AWARD. The compensation to be provided the OP Users for engaging in
certain activities such as completing ▇▇▇▇▇ ▇ Screening, completing Level 2
Screening, or completing a survey.
INTELLECTUAL PROPERTY RIGHTS. Any patent, copyright, trademark, trade dress,
trade name or trade secret right and any other intellectual property or
proprietary right arising under the laws of any jurisdiction.
INTERACTIVE SERVICE. An entity offering one or more of the following: (i) online
or Internet connectivity services (e.g., an online service or Internet service
provider); (ii) an interactive site or service featuring a broad selection of
aggregated third party interactive content (or navigation thereto) covering a
broad range of subjects and targeted at a broad audience (e.g., a search and
directory service or portal) and/or marketing a broad selection of products
and/or services across numerous "vertical" interactive commerce categories
(e.g., an online mall or multiple-category e-commerce site); or (iii)
communications software capable of serving as the principal means through which
a user creates, sends or receives electronic mail or real time online messages.
INTERACTIVE SITE. Any interactive product, site or area of a site, including, by
way of example and without limitation, a site on the World Wide Web portion of
the Internet.
LANDSCAPE SOFTWARE. The proprietary software implementation (as of October 22,
2001) of the OP River Methodology created by DMS and as more specifically
described on Exhibit D hereto.
LEVEL 1 SCREENING. The initial set of questions posed to OP Users which will be
limited to gender, age, and household composition. Further defined in Section
2.3.2.
▇▇▇▇▇ ▇ SCREENING. As defined in Section 2.3.2.
MEMBER INFORMATION. All information relating to OP Users as described in Section
6.2.
NETSCAPE NETCENTER. Netscape Communications Corporation's primary Internet-based
Interactive Site marketed under the "Netscape Netcenter(TM)" brand, specifically
excluding any other version of an AOL or Netscape Communications Corporation
Interactive Site which is materially different from Netscape Communications
Corporation's primary Internet-based Interactive Site marketed under the
"Netscape Netcenter(TM)" brand, by virtue of its branding, distribution,
functionality, Content or services, including, without limitation, any
co-branded versions and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer (e.g. Custom NetCenters built specifically for third parties).
OPINION PLACE(R). The AOL--managed U.S. Interactive Site(s) on the AOL Network
marketed under the Opinion Place brand through which Internet users enter in
connection with AOL's custom market research efforts which recruit potential
respondents via an incentive system and populates online survey projects through
a broad based random assignment approach.
OP RIVER METHODOLOGY. DMS' proprietary real-time interviewing method, including
survey recruitment, access, screening, queuing methodology.
PERSON. A natural person, a corporation, a partnership, a trust, a joint
venture, or any other entity or organization.
REASONABLE PROJECT. 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
SPSS CONTENT. The specific forms, questions, or similar content created by SPSS
or its agents and displayed within Opinion Place in connection with specific
survey projects, excluding the elements of graphics, design, organization,
presentation, layout, user interface, navigation and stylistic convention
(including the digital implementation thereof) which are generally associated
with Opinion Place or any other online areas contained within the AOL Network.
SPSS CUSTOMER. Any third party with which SPSS has a contractual relationship
with respect to the online market research business.
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