Exhibit 10.4
STRATEGIC ALLIANCE AGREEMENT
THIS AGREEMENT is made as of April 23, 1999 between ▇▇▇▇▇▇ BLACK
INTERNATIONAL, LTD., a Delaware corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("HBI") and MARKET FACTS, INC., a Delaware corporation
with offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("MFI").
WHEREAS, MFI and HBI each are in the business of conducting marketing
and advertising research, creating research reports, conducting customer
satisfaction and loyalty retention studies, and creating, conducting, and
providing analysis of surveys and polls, and
WHEREAS, in the course of its business HBI has developed, and continues
to expand, proprietary products for the conduct of research using the internet,
including among others a database of respondents who have agreed to participate
in such research, and
WHEREAS, MFI and HBI desire to create a strategic relationship in order
to enhance their mutual capabilities to take advantage of business opportunities
related to the internet,
NOW THEREFORE, in consideration of the rights granted hereunder and the
covenants contained herein, and other good and valuable consideration, the
receipt of which is hereby acknowledged, HBI and MFI agree to enter into a
strategic alliance as follows:
ARTICLE 1 - DEFINITIONS
1.1 DEFINITIONS. Capitalized terms used herein shall have the following
meanings:
"ACCESS FEES" shall mean the fees set by HBI related to amortization of
development of the HBI Database.
"AFFILIATE" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract, or otherwise.
"AGREEMENT" shall mean this Strategic Alliance Agreement, as it may be
amended or replaced from time to time.
"ASSOCIATION" shall mean the International Research Database
Association, a not-for-profit corporation formed or to be formed under the laws
of the State of Delaware.
"ASSOCIATION DATABASE" shall mean the Association's database of Unique
Names to which HBI has access by virtue of its membership and cross-license
agreements.
"ASSOCIATION PRICE" shall mean the List Price established from time to
time by the Association for use of the Association Database according to the
Association Rules.
"ASSOCIATION RULES" shall mean the rules, standards, operating
principles, restrictions, and agreements contained in the Certificate of
Incorporation, Bylaws, Cross-License Agreement, Guidelines, and other governing
documents and agreements of the Association in effect from time to time.
"ASSOCIATION SURVEY FEE" shall mean the Survey Fee as defined in the
Association Rules.
"ASSOCIATION USE FEE" shall mean the Use Fee as defined in the
Association Rules.
"CONFIDENTIAL INFORMATION" shall have the meaning given to it in
Section 6.1 of this Agreement.
"GUIDELINES" shall mean the Guidelines established from time to time
under the Bylaws of the Association.
"HBI DATABASE" shall mean HBI's database of Unique Names.
"HBI MULTI-CLIENT STUDY(IES)" shall have the meaning given in Section
5.1 of this Agreement.
"INTERNET TECHNOLOGIES" shall have the meaning given in Section
2.1(a)(iii) of this Agreement.
"JV MULTI-CLIENT STUDY(IES)" shall have the meaning given in Section
5.1 of this Agreement.
"MFI NAMES" shall mean the names of a natural person who (i) has agreed
to participate in a study or project for MFI or its customers or clients, (ii)
has provided his or her name, email address, post office address, and such other
demographic information as MFI and HBI mutually agree is necessary in connection
with the applicable study or project, and (iii) has not become a Participant.
"MFI MULTI-CLIENT STUDY(IES)" shall have the meaning given in Section
5.1 of this Agreement.
"MFI TECHNOLOGIES" shall have the meaning given in Section 2.6(a) of
this Agreement.
"MULTI-CLIENT STUDY(IES)" shall mean any HBI Multi-Client Study(ies),
JV Multi-Client Study(ies), and/or MFI Multi-Client Study(ies). Multi-Client
Studies shall not include custom studies done at the joint request of more than
one client.
"PARTICIPANT" shall mean a person to whom a particular Unique Name has
reference.
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"PERSON" shall mean any individual, corporation, company, partnership,
limited liability company, joint venture, trust, or other entity of any kind or
nature.
"PROMOTIONAL PURPOSES" shall mean use of the Association Database or
HBI Database for the primary purpose of advertising, marketing, or promoting any
good or service, including without limitation advertising delivery, measurement
and targeting, profiling of audiences, lead generation, cooperative marketing
programs, list rental for purposes of advertising and promotional activity,
client database enhancement and development, and the sale of branded
merchandise.
"RESEARCH PURPOSES" shall mean use of the Association Database or HBI
Database for data collection and data analysis conducted to provide research
studies, including without limitation conducting customer satisfaction and
loyalty retention studies, creating research studies and reports (including
studies on advertising effectiveness and copy testing), and conducting and
providing analysis of surveys and polls.
"RETAIL FEES" shall mean the Access Fees, Survey Fees, and Use Fees
actually charged by HBI for access and use of the HBI Database to Persons who
have not (i) entered into an exclusive relationship with HBI for online internet
research services (subject to limited exceptions such as those granted
hereunder), or (ii) made an upfront license or access fee or similar payment to,
or other equivalent financial arrangement with, HBI for use of the HBI Database.
"STANDARD RETAIL FEES" shall mean HBI standard Retail Fees for access
and use of the HBI Database for Persons who have not (i) entered into an
exclusive relationship with HBI for online internet research services (subject
to limited exceptions such as those granted hereunder), (ii) made an upfront
license or access fee or similar payment to, or other equivalent financial
arrangement with, HBI for use of the HBI Database, or (iii) qualified for volume
discounts or similar special arrangements involving use of the HBI Database on
more than a project by project by project basis.
"SURVEY FEES" shall mean the fees set by HBI related to (i) programming
necessary to format surveys for, or otherwise make surveys compatible with,
internet data collection, (ii) collection of surveys, polls, and interviews
involving hosting web sites and having other contact with Participants through
the HBI Database using HBI Internet Technologies, and (iii) amortization of
development of the Internet Technologies.
"UNIQUE NAME" shall mean the name of a natural person who (i) has
agreed to participate in the HBI Database or the International Database, (ii)
has provided his or her name, email address, and post office address, and (iii)
has been requested to provide his or her telephone number and such other
demographic information (for example, age, income, education, marital status,
employment, or ethnicity) as is determined from time to time to be appropriate
by either HBI or the Association.
"USE FEES" shall mean the fees set by HBI related to (i) distribution
of emails or other communication, (ii) monitoring content and quality of
communications with Participants, (iii)
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processing responses to such emails and other communications, and (iv) providing
equipment, servers, software, and support facilities.
ARTICLE 2 - LICENSES
2.1 HBI DATABASE/INTERNET TECHNOLOGIES.
(a) The parties acknowledge and agree that:
(i) HBI is the owner of and has proprietary rights to the HBI
Database. Notwithstanding anything to the contrary contained in this
Agreement, HBI shall continue to have exclusive control over and rights
to develop, expand, manage, and license or rent use of the HBI Database
for Research Purposes.
(ii) HBI is the owner of and has proprietary rights to the
name "▇▇▇▇▇▇ Poll Online". Notwithstanding anything to the contrary
contained in this Agreement, HBI shall continue to retain all ownership
rights and interests in the name "▇▇▇▇▇▇ Poll Online" (subject to the
grant hereby of a non-exclusive license for use of such name in
connection with use of the HBI Database by MFI under this Agreement).
(iii) HBI has developed, and/or has proprietary rights to
technologies, techniques, and capabilities for the collection of
surveys, polls, and interviews through the internet and for weighting,
sampling, projections and the like related thereto ("INTERNET
TECHNOLOGIES"). Notwithstanding anything to the contrary contained in
this Agreement, HBI shall continue to have exclusive ownership and
proprietary rights to the Internet Technologies, subject to the license
granted to MFI hereby.
(b) The HBI Database and Internet Technologies shall continue to be
held by HBI and reside on its systems. HBI shall provide, and shall retain
ownership of, the equipment, servers, software, and other support facilities
necessary to manage the HBI Database, contact the Participants, and support the
Internet Technologies. HBI may subcontract or otherwise arrange for the
performance of certain of its functions from time to time so long as such
subcontracts or arrangements are exclusively for the provision of services, and
do not include a grant of rights to the HBI Database. Unique Names held at any
time by a subcontractor or through another arrangement shall be deemed to be
held by and at the direction of, and under control of HBI, and no Person shall
have any rights to such Unique Names other than through HBI.
(c) All emails and contacts with Participants in the HBI Database shall
be made through HBI. Among other items, HBI will monitor that use of the HBI
Database conforms to standards established for such use and will provide that
communications from Participants (including requests for removal from the HBI
Database) are dealt with in a timely manner. All contacts with HBI Database
Participants shall be made under the name, "▇▇▇▇▇▇ Poll Online"; provided,
however, that
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at MFI's request, HBI also will identify MFI in such manner as MFI reasonably
requests in all communications with Participants made by HBI on behalf of MFI.
2.2 HBI DATABASE LICENSE. HBI hereby grants a non-exclusive license to
MFI, acting through HBI, to access and use the HBI Database provided that such
use (i) must be exclusively for Research Purposes, (ii) may not be for
Promotional Purposes, (iii) may not conflict with exclusive rights given by HBI
to third Persons for use of the HBI Database for specifically described
activities (which exclusive third party rights shall not restrict MFI's rights
to use the HBI Database for custom research projects of any nature), (iv) may
not conflict with restrictions on use of the HBI Database imposed upon HBI in
connection with the addition of Unique Names to the HBI Database, (v) must
comply with Section 2.1 and other provisions of this Agreement, (vi) must comply
with reasonable restrictions established by HBI to assure compliance with the
maintenance of the goodwill and reputation of HBI, legal requirements, privacy
standards, and the like, and (vii) is subject to payments as provided in Section
2.4 of this Agreement. Use of the HBI Database shall include, without
limitation, rights to integrate materials from use of the HBI Database with
other product offerings and rights to rent use of the HBI Database as part of
services performed by MFI for third Persons. HBI acknowledges that restrictions
in this Agreement on use of the HBI Database for Promotional Purposes are
intended to relate to contacts with Participants, and not to the promotion or
use of the HBI Database itself for Research Purposes.
2.3 INTERNET TECHNOLOGIES. HBI hereby grants a non-exclusive license to
MFI, acting through HBI, to access and use the Internet Technologies in
connection with design, development and performance of projects and products
using the HBI Database and MFI Names provided that such use (i) must be
exclusively for Research Purposes, (ii) may not be for Promotional Purposes,
(iii) may not conflict with restrictions imposed by third Persons on HBI use of
such Internet Technologies, provided that in the case of third party vendors HBI
will use reasonable efforts to secure access for MFI, (v) must comply with
Section 2.1 and other provisions of this Agreement, (vi) must comply with
reasonable restrictions established by HBI to assure compliance with the
maintenance of the goodwill and reputation of HBI, legal requirements, industry
standards or ethical guidelines, and privacy standards, and (vii) is subject to
payments as provided in Section 2.4 of this Agreement.
2.4 USE OF HBI DATABASE/INTERNET TECHNOLOGIES/FEES.
(a) MFI requests for use of the HBI Database and access to Internet
Technologies will be given [Confidential Information. Intentionally omitted and
filed separately with the Securities and Exchange Commission] for similar use
of the HBI Database and access to Internet Technologies.
(b) MFI's use of the HBI Database shall be [Confidential Information.
Intentionally omitted and filed separately with the Securities and Exchange
Commission.] MFI will pay HBI's fees as further described in this Section
2.4(b). MFI will pay to HBI (i) Use Fees and Access Fees in connection with
all uses of the HBI Database (subject, however to Section 4.3 of this
Agreement), (ii) Use Fees (but not Access Fees) in connection with use of MFI
Names, and (iii) Survey Fees in connection with all uses of the Internet
Technologies whether in connection with the HBI Database or MFI Names. HBI will
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invoice MFI for such fees promptly after the completion of each project, and MFI
will pay such fees within thirty (30) days from the date of invoice whether or
not MFI has collected any such amounts from its customers and clients and based
upon the following amounts:
(i) From time to time HBI will advise MFI of the applicable
Use Fees, Access Fees, and Survey Fees related to use of the HBI
Database, which shall be [Confidential Information. Intentionally
omitted and filed separately with the Securities and Exchange
Commission] and which fees shall always be [Confidential Information.
Intentionally omitted and filed separately with the Securities and
Exchange Commission.] HBI will have the right in its discretion to
modify such fees (but no more often than quarterly) on thirty (30) days
prior written notice to MFI, provided that HBI will continue to honor
its then existing fees for all fee quotes given to MFI prior to the
effective date of such fee change. At the request and at the expense of
MFI, but no more often than annually, MFI and its representatives may
audit the conformity of MFI charges to [Confidential Information.
Intentionally omitted and filed separately with the Securities and
Exchange Commission].
(ii) Upon receipt of a request from MFI to perform services
covered by this Agreement, which request provides supporting
information reasonably necessary for HBI to evaluate the request, HBI
will advise MFI of the applicable Use Fees and Survey Fees, and if MFI
Names are not being used, Access Fees, that are anticipated in
connection with such project (the "QUOTED FEES"). If the actual costs
to HBI become expected to exceed, or exceed, the Quoted Fees due to a
change in the scope of the project, HBI will advise MFI as soon as
reasonably practical and will provide an accounting for such excess to
MFI. MFI shall be responsible for the Quoted Fees and for any actual
HBI costs in excess of Quoted Fees incurred due to the change in scope
of the project. Except for costs related to changes in scope of a
project, HBI will be responsible for all costs in excess of Quoted
Fees.
The fee structure provided in this Section 2.4(b) shall not apply to projects
for which a separate fee structure is provided by Article 5 of this Agreement.
(c) From time to time MFI and HBI may mutually agree to have MFI or HBI
perform professional or other services for the other which are not within the
scope of services covered by this Agreement. The terms and conditions for such
services, and the costs or charges therefor, shall be subject to such mutual
agreement.
2.5 ASSOCIATION DATABASE. HBI is a Member of the Association and as
such has rights to use the Association Database subject to the Association
Rules. HBI agrees to access the Association Database on behalf of MFI from time
to time subject to Association Rules. In connection with each such use of the
Association Database, MFI will promptly reimburse HBI for the Association Price,
Association Survey Fees, and Association Use Fees in the same amounts as are
payable by Members of the Association in connection with such use as defined in
the Association Rules. [Confidential Information. Intentionally omitted and
filed separately with the Securities and Exchange Commission.]
2.6 MFI TECHNOLOGIES/LICENSE.
(a) MFI has developed, and/or has certain proprietary rights to
technologies, techniques, and capabilities for the collection of surveys, polls,
and interviews through the internet and for weighting, sampling, projections and
the like related thereto ("MFI TECHNOLOGIES"). Notwithstanding anything to the
contrary contained in this Agreement, MFI shall continue to have
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exclusive ownership and proprietary rights to the MFI Technologies, subject
to the license granted to HBI hereby.
(b) MFI hereby grants a non-exclusive license to HBI to access and use
the MFI Technologies in connection with design, development and performance of
projects and products using the HBI Database and MFI Names provided that such
use (i) may not conflict with restrictions imposed by third Persons on MFI use
of such MFI Technologies, provided that in the case of third party vendors MFI
will use reasonable efforts to secure access for HBI, and (ii) must comply with
reasonable restrictions established by MFI to assure compliance with the
maintenance of the goodwill and reputation of MFI, legal requirements, industry
standards or ethical guidelines, and privacy standards.
2.7 OWNERSHIP OF DATA. All surveys, questionnaires or similar materials
created in connection with a study conducted by HBI on behalf of MFI hereunder,
and all research data and other information collected as a result thereof, shall
be owned by MFI, and MFI shall have sole and exclusive rights thereto unless
otherwise expressly agreed by the parties. Per legal requirements and HBI
privacy policies, transfer of Participant-specific demographic data will not be
made unless clearly disclosed to the Participant in connection with the
particular study.
ARTICLE 3 - EXCLUSIVE SERVICES/COOPERATION
3.1 EXCLUSIVE PROVISION OF INTERNET SERVICES.
(a) MFI hereby agrees that its exclusive strategic online relationship
with Persons in the business of providing internet based polling and research
services will be with HBI, as described in this Section 3.1. In connection
therewith, MFI will not enter into strategic online relationships with, register
or create names of online respondents for, or receive online primary research
services from, any HBI direct competitor that offers such internet based polling
and research services (a "HBI COMPETITOR"); provided, however, that MFI shall
have a reasonable period of time after the date of this Agreement for a
reasonably prompt and orderly transition out of any existing internet based
research relationships. MFI may continue to create relationships with, and
receive primary research from, Persons including HBI Competitors provided that
such relationships and research are not for internet based polling and/or
research services.
MFI shall use HBI as its exclusive provider of internet based
research services using the HBI Database, MFI Names, and the Association
Database as well as HBI Internet Technologies. Such research services
include, without limitation, HBI Database rental, Association Database
rental, Participant contacts, data collection, project design to conform to
use of the internet, sampling, weighting, creation of tapes for data
processing, development of internet based syndicated or multi-customer
products, and the like.
(b) Notwithstanding the provisions of Section 3.1(a), MFI shall have
the right to perform internet based polling and research itself or to obtain
such services from other Person, including HBI
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Competitors, for: (i) specific projects in the event that HBI is unable to
provide the services requested by MFI in a reasonably timely manner, and (ii)
specific internet research opportunities, lines of business, or technologies
which MFI has disclosed to HBI and requested that HBI offer to MFI as part of
the internet research services provided hereunder and which HBI has determined
within a reasonable period of time that it is either unwilling or unable to
offer to MFI.
3.2 WORKING GROUPS/ADVISORY PANEL. Consistent with their joint desire
and interest in development of the business of use of the internet for Research
Purposes, (i) HBI and MFI shall each appoint representatives to an Advisory
Panel which will provide advice from time to time regarding improvements to the
HBI Database, and (ii) from time to time MFI and HBI by mutual agreement may
establish working groups to deal with issues of common concern. Among others,
immediate establishment of a Technology Working Group and a Design and Weighting
Working Group is anticipated.
3.3 OTHER HBI RELATIONSHIPS. Except as otherwise expressly provided in
this Agreement, nothing contained herein shall restrict the ability of HBI to
create relationships with, provide research and other services to, and provide
access to the HBI Database and Internet Technologies to, any other Persons
including clients who may be direct competitors of MFI.
ARTICLE 4 - ADDITION OF NAMES TO HBI DATABASE
4.1 MFI COLLECTION OF NAMES.
(a) MFI shall have the right to contribute MFI Names to the HBI
Database, subject to access and use restrictions as may be established by MFI.
Subject to the provisions of Section 4.1(b), MFI will use its commercially
reasonable efforts to offer those with which it has relationships, including
recipients of its solicitations and other communications, the opportunity to
become a Unique Name and to become part of the HBI Database. HBI and MFI will
mutually agree as to the form and content of such offers. Subject to the
provisions of Section 4.1(b), MFI will use its commercially reasonable efforts
to obtain the permission of its customers and clients to offer the opportunity
to become Unique Names to those with which it has relationships, including
recipients of its solicitations and other communications.
(b) Notwithstanding the provisions of Section 4.1(a), MFI shall not be
required to contribute MFI Names, or offer those with which it has
relationships, including recipients of its solicitations and other
communications, the opportunity to become Unique Names:
(i) if MFI reasonably determines that such contribution or
offer would not be consistent with maintenance of contractual or good
trade relationships with its customers and clients,
(ii) if MFI reasonably determines that such contribution or
offer would violate any third party contractual arrangement existing on
the date of this Agreement, or
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(iii) for participants in MFI's consumer mail panel.
4.2 MFI NAMES. MFI is the owner of and has all proprietary rights to
the MFI Names. The MFI Names shall be subject to such access and use
restrictions as may be established by MFI and the MFI Names will not become
Unique Names and part of the HBI Database unless the MFI Name participant has
expressly agreed (by active or passive opt-in) to participate in the HBI
Database. MFI shall have sole rights to the use of the MFI Names, subject to the
provisions of this Agreement pursuant to which HBI provides services to MFI in
contacting and gathering data from MFI Names exclusively on behalf of MFI.
4.3 CHARGES IN CONNECTION WITH USE OF MFI NAMES. Although MFI is
responsible for payment of Access Fees in connection with each of its uses of
the HBI Database, to the extent that Participants who respond to a particular
survey request represent Unique Names contributed by MFI under Section 4.1
hereof, the Access Fees will be proportionately waived.
ARTICLE 5 -MULTI-CLIENT STUDIES
5.1 TYPES OF STUDIES.
(a) From time to time MFI and HBI may agree to joint multi-client
studies using the internet ("JV MULTI-CLIENT STUDY(IES)").
(b) HBI may choose to do multi-client studies for its own account using
the internet ("HBI MULTI-CLIENT STUDY(IES)"). Rights of HBI to conduct HBI
Multi-Client Studies alone or with other Persons, or to license or rent use of
the HBI Database to customers or clients in connection with multi-client studies
being performed by them, are not covered by this Agreement and HBI may conduct
the same independent of and without regard to its relationship with MFI except
as otherwise expressly provided herein.
(c) MFI may choose to do multi-client studies for its own account using
the internet ("MFI MULTI-CLIENT STUDY(IES)"). MFI Multi-Client Studies may be
conducted by MFI alone or with other Persons, provided however, that MFI shall
use HBI services covered by Use Fees, Access Fees if the HBI Database is used
rather than MFI Names, and Survey Fees in connection with all such MFI
Multi-Client Studies subject to the terms of this Agreement.
5.2 EXCLUSIVITY RIGHTS.
(a) With respect any particular JV Multi-Client Study, HBI and MFI each
agree that they will not produce online research products that compete directly
with the respective JV Multi-Client Study. Research that is related to the same
industry or population but does not directly compete with the respective JV
Multi-Client Study, and research conducted after expiration of a time period
after completion of the respective JV Multi-Client Study (such period either to
be mutually agreed upon prior to commencement of the JV Multi-Client Study or,
absent such agreement, for so long as the
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JV Multi-Client Study is a commercially viable product), will be deemed not to
compete directly with the respective JV Multi-Client Study.
(b) With respect to any MFI Multi-Client Study and in consideration of
the payments to be received by it under Section 6.5 of this Agreement, HBI
agrees that it will not produce (for its own account or with or for others)
online research products that compete directly with the respective MFI
Multi-Client Study. Research that is related to the same industry or population
but does not directly compete with the respective MFI Multi-Client Study, and
research conducted after expiration of a time period after completion of the
respective MFI Multi-Client Study (such period to be mutually agreed upon prior
to commencement of the MFI Multi-Client Study or, absent such agreement, for so
long as the MFI Multi-Client Study is a commercially viable product), will be
deemed not to compete directly with the respective MFI Multi-Client Study. No
MFI Multi-Client Study shall be produced that either (i) violates exclusive
rights or other restrictions under agreements HBI has with other Persons, or
(ii) in the reasonable judgment of HBI would so restrict the use of the HBI
Database as to jeopardize HBI's membership in the Association or its ability to
use and manage the HBI Database in a manner consistent with HBI's reasonable
business objectives.
5.3 PRICING. Sale prices to customers and clients purchasing data or
other material produced in connection with any JV Multi-Client Study shall be
subject to mutual agreement of HBI and MFI. Sale prices to customers and clients
purchasing data or other material produced in connection with any MFI
Multi-Client Study shall be established by MFI.
5.4 DEVELOPMENT AND CONDUCT OF JV MULTI-CLIENT STUDIES.
(a) HBI will provide use of the HBI Database with no Use Fee, Access
Fee, or Survey Fee for the developmental phase of JV Multi-Client Studies. If
use of the Association Database is required in connection with the developmental
phase of the project, HBI will provide use of the Association Database for the
Association Price, Association Use Fee, and Association Survey Fee applicable to
such use according to Association Rules. [Confidential Information.
Intentionally omitted and filed separately with the Securities and Exchange
Commission.]
(b) HBI and MFI will mutually agree as to primary responsibility for
questionnaire design, the design of marketing materials, and the design of
research deliverables for JV Multi-Client Studies, it being the present
intention of the parties that MFI will assume a greater portion of such
responsibility in consideration of the contributions of HBI under Section
5.4(a). The production of the questionnaire, marketing materials, core
demographic questions, and deliverables will be a collaborative process between
the parties. Demographic categories shall conform to categories then in use for
the HBI Database. The final form of the survey must be approved by both parties;
provided, however, that permission to include content in the survey will not be
unreasonably withheld. Each party will bear its own professional and other costs
with respect to developmental activities covered by this Section 5.4(b).
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(c) In order to minimize the financial risk to the parties, after the
development phase of the project, no data collection efforts by HBI will
commence unless the parties have obtained commitments in writing for the
purchase of the Multi-Client Study equal to a mutually agreed upon minimum
revenue. In the event that there is insufficient minimum revenue and the JV
Multi-Client Study does not proceed, each party shall be individually
responsible for whatever costs the parties have incurred until that point.
(d) All revenue generated through the sale of a JV Multi-Client Study
shall first be allocated to cover each party's costs in the following order and
as described below: (i) sales commissions, (ii) Use Fees, Access Fees, and
Survey Fees, (iii) marketing costs, and then (iv) professional costs.
(i) In order to cover the cost of direct sales activities not
covered by subsection (d)(iii) of this Section, either party that makes
a sale will receive a commission equal to [Confidential Information.
Intentionally omitted and filed separately with the Securities and
Exchange Commission].
(ii) Use Fees, Access Fees, and Survey Fees shall include
those payable to HBI for all activities other than those covered by
Section 5.4(a) of this Agreement.
(iii) Marketing costs shall reflect those direct costs
incurred by the parties to promote the JV Multi-Client Study, including
costs for producing marketing collaterals and web-based materials, but
excluding professional time spent on developing marketing materials.
Marketing costs shall not include the costs of telemarketing, sales
calls, or other costs directly related to sales to individual customers
or clients.
(iv) Professional costs shall include the time spent by
professional personnel, which is, under normal circumstances, passed on
to clients when servicing retail research clients, but shall not
include Survey Fees and those costs covered by Section 5.4(a) of this
Agreement. Calculation of costs for professional time shall be on an
hourly basis, and shall be based upon the amounts normally charged per
hour for such time.
An accounting for all costs incurred except commissions not yet earned shall be
made by both parties prior to the commencement of data collection by HBI.
(e) HBI and MFI [Confidential Information. Intentionally omitted and
filed separately with the Securities and Exchange Commission] shall be entitled
to receive [Confidential Information. Intentionally omitted and filed
separately with the Securities and Exchange Commission] of any and all
revenues resulting from the sale or use of data generated from a JV
Multi-Client Study, or otherwise related to such JV Multi-Client Study, after
payments required to be made under this Section 5.4.
(f) Each party will provide reasonable cooperation to the other in
areas for which the other has responsibility, and each party will make, or will
cause its Affiliates to make, all reasonable and practical efforts in the
performance of the functions for which it has responsibility.
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(g) Any data generated by a JV Multi-Client Study shall be owned
jointly by HBI and MFI. Interests in and rights to use of such data are not
transferable by either party (except to an Affiliate of such party), and all
uses of such data require approval by authorized designees of both HBI and MFI.
Neither party shall sell, rent, or otherwise use such data except as described
in this Agreement without the express written permission of the other party. Per
legal requirements and MFI and HBI privacy policies, transfer of demographic
data will not be made unless clearly disclosed to the Participant in connection
with the particular MFI Multi-Client Study. Both parties must provide their
written consent prior to and to the form and content of, any release of the JV
Multi-Client Study, marketing materials, data, or deliverables. Consent to the
form of marketing materials will not be unreasonably withheld.
5.5 DEVELOPMENT AND CONDUCT OF MFI MULTI-CLIENT STUDIES.
(a) HBI will provide use of the HBI Database for the developmental
phase of MFI Multi-Client Studies at the Use Fees, Access Fees, and/or Survey
Fees charged to MFI pursuant to section 2.4(b) hereof. If use of the Association
Database is required in connection with the developmental phase of the project,
HBI will provide use of the Association Database for the Association Price,
Association Use Fee, and Association Survey Fee applicable to such use according
to Association Rules [Confidential Information. Intentionally omitted and filed
separately with the Securities and Exchange Commission].
(b) MFI will have responsibility for, and shall bear the expenses
related to, questionnaire design, the design of marketing materials, and the
design of research deliverables for MFI Multi-Client Studies, subject to
approval of HBI which will not be unreasonably withheld. Core demographic
questions must be acceptable to HBI and demographic categories shall conform to
categories then in use for the HBI Database. The final form of the survey must
be approved by both parties; provided, however, that approval will not be
unreasonably withheld by HBI.
(c) In order to minimize the financial risk to the parties, no data
collection efforts by HBI will commence unless either (i) MFI has obtained
commitments in writing for the purchase of the MFI Multi-Client Study sufficient
to provide revenues resulting in royalties to HBI at least equal to the Use Fee,
Access Fee, and Survey Fee that would, but for Section 5.5(d), be payable in
connection with such MFI Multi-Client Study pursuant to Section 2.4(b) hereof,
or (ii) MFI has agreed to pay HBI minimum royalties, whether or not earned in
connection with revenues from the particular MFI Multi-Client Study at least
equal to the Use Fee, Access Fee, and Survey Fee that would, but for Section
5.5(d), be payable in connection with such MFI Multi-Client Study.
(d) MFI shall pay to HBI [Confidential Information. Intentionally
omitted and filed separately with the Securities and Exchange Commission]
based upon all [Confidential Information. Intentionally omitted and
filed separately with the Securities and Exchange Commission] received with
respect to the [Confidential Information. Intentionally omitted and
filed separately with the Securities and Exchange Commission]. The [Confidential
Information. Intentionally omitted and filed separately with the Securities and
Exchange Commission] shall be at least the minimum royalty required by Section
5.5(c), if any, and shall be the [Confidential Information. Intentionally
omitted and filed separately with the Securities and Exchange Commission].
Within thirty (30) days after the close of [Confidential Information.
Intentionally omitted and filed separately with the Securities and Exchange
Commission], MFI will deliver to HBI (i) a report detailing [Confidential
Information. Intentionally omitted and filed separately with the Securities
and Exchange Commission] and the [Confidential Information. Intentionally
omitted and filed separately with the Securities and Exchange Commission]
calculation connected therewith, and (ii) payment of the [Confidential
Information. Intentionally omitted and filed separately with the Securities
and Exchange Commission] earned during such [Confidential Information.
Intentionally omitted and filed separately with the Securities and Exchange
Commission].
(e) Any data generated by a MFI Multi-Client Study shall be owned by
MFI. All uses of such data require approval by an authorized designee of MFI.
Per legal requirements and MFI
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and HBI privacy policies, transfer of demographic data will not be made unless
clearly disclosed to the Participant in connection with the particular MFI
Multi-Client Study.
ARTICLE 6 - CONFIDENTIAL INFORMATION
6.1 CONFIDENTIAL INFORMATION. During the course of this Agreement, the
parties may exchange information, materials, and knowledge about their
respective businesses, products, programming and other techniques, methods,
pricing, ideas, experimental and other work, plans, systems, customers, clients,
suppliers, databases (including without limitation the Association Database and
the HBI Database), Participants, Unique Names, MFI Names, Internet Technologies,
and MFI Technologies. The parties agree that all such knowledge, information,
and materials acquired from or through the other are and will be the trade
secrets and confidential and proprietary information of the other party
(collectively, the "CONFIDENTIAL INFORMATION") whether or not explicitly
designated as "confidential" or "proprietary". Confidential Information does not
include information that (i) is or enters the public domain without breach of
this Agreement, (ii) either party receives from a third Person without
restriction on disclosure and without breach of a nondisclosure obligation,
(iii) either party knew, and can independently substantiate knowing, prior to
receiving the information from the other, or (iv) either party develops or
discovers, and can independently substantiate developing or discovering,
independently of any information received from the other.
6.2 AGREEMENT NOT TO DISCLOSE/USE. Each party agrees:
a) to take every reasonable precaution to safeguard and treat the other
party's Confidential Information as confidential, including without limitation
treating such Confidential Information with at least the same degree of care as
it treats similar materials of its own;
b) not to disclose the other party's Confidential Information to any
third Person except to its employees, agents, consultants or representatives
with a need to know as a necessary part of its business and after obtaining the
agreement of such third Person to be bound by the terms of this Agreement;
c) not to use the other party's Confidential Information for any
purpose other than for the purpose for which such Confidential Information has
been disclosed; and
d) not to disclose or use the other party's Confidential Information in
any manner that would not be in furtherance of the interests of the relationship
of the parties.
The parties acknowledge, however, that they compete with each other for client
and customer relationships and with respect to particular projects and products.
It is understood by the parties that nothing herein shall prevent either of the
parties from competing for relationships, projects, and products provided that
the Confidential Information of the other (such as information that a particular
project is forthcoming, pricing information and the like) is not used in
connection therewith.
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6.3 SPECIFIC ENFORCEMENT/DAMAGES. The parties agree that injury from
any breach of this Article 6 cannot be fully compensated by money damages and
that the damages for any breach of this Article 6 may not be readily
ascertainable. The parties therefore agree to specific enforcement and
injunctive relief in the event of any breach of this Article 6 in addition to
damages and any and all other remedies at law or equity. The parties further
acknowledge that the Confidential Information of each of them is critical to
their respective businesses and is among their most valuable assets, and that
any damages may include significant damages for loss of future opportunities and
profits.
ARTICLE 7 - WARRANTIES
7.1 WARRANTY DISCLAIMER. HBI and MFI each acknowledge that any
collection and compilation of Unique Names, databases, and data entails the
likelihood of inaccuracies and losses, including inadvertent loss of data or
damage to media, that may give rise to loss or damage. Both parties will
cooperate in developing reasonable systems, procedures, and processes to
minimize such inaccuracies. Except as specifically provided in this Section 7.1,
both parties, however, agree THAT THE HBI DATABASE AND THE ASSOCIATION DATABASE
EACH, THE INTERNET TECHNOLOGIES, ANY UNIQUE NAMES AND DATA, AND ALL RESEARCH AND
OTHER PRODUCTS PRODUCED THEREFROM OR RELATED THERETO OR PROVIDED HEREUNDER, ARE
PROVIDED "AS IS", AND NEITHER HBI NOR THE ASSOCIATION MAKES ANY REPRESENTATION
OR WARRANTY WITH RESPECT TO THE ACCURACY, COMPLETENESS, GENUINENESS, OR
CURRENTNESS THEREOF. BOTH PARTIES SPECIFICALLY DISCLAIM ANY OTHER WARRANTY,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY AGREES THAT IN NO EVENT WILL THE
OTHER PARTY BE LIABLE IN ANY MANNER (INCLUDING WITHOUT LIMITATION LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES) FOR THE RESULTS OF OR WITH RESPECT TO ITS
OR ANY OF ITS CUSTOMER'S OR CLIENT'S USE OF THE HBI DATABASE, THE ASSOCIATION
DATABASE, OR THE UNIQUE NAMES OR DATA CONTAINED THEREIN, OR THE INTERNET
TECHNOLOGIES OR ANY RESEARCH OR PRODUCTS PRODUCED THEREFROM OR PROVIDED
HEREUNDER.
ARTICLE 8 - TERM/TERMINATION
8.1 TERM. Subject to the other provisions of this Article 8, this
Agreement shall have an initial term of five (5) years. The term of this
Agreement shall be automatically extended for additional one (1) year terms
thereafter unless either party provides the other with at least one (1) year's
prior notice of its election not to extend.
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8.2 EFFECT OF FAILURE TO EXTEND TERM.
(a) If, under Section 8.1, HBI elects not to extend the term of this
Agreement beyond the initial term or beyond the end of any one year extension
period, the licenses granted to MFI under Sections 2.2 and 2.3 of this Agreement
shall continue in perpetuity with respect to the HBI Database and Internet
Technologies as they exist at that time, notwithstanding HBI's termination of
this Agreement. In addition, HBI will make suitable arrangements to provide MFI
will access and use of the HBI Database on the terms provided herein or will
provide MFI with the Internet Technologies and with duplicate copies of all of
the information relating to unrestricted Unique Names contained in the HBI
Database, and all MFI Names held by HBI, in a format compatible with MFI's
hardware and software or, absent such compatibility, with hardware and software
readily obtainable on the open market.
(b) If, under Section 8.1, MFI elects not to extend the term of this
Agreement beyond the initial term or beyond the end of any one year extension
period, MFI may continue to have access to the HBI Database and Alliance
Database, and HBI will continue to perform services for MFI upon request of MFI,
on the terms otherwise applicable hereunder for a period of ninety (90) days
after the end of the term, or if longer, for the period necessary to complete
projects commenced before the end of the term, except that MFI shall pay Retail
Fees in connection with any such access.
8.3 BREACH. In the event (i) that there is a material breach of this
Agreement by the other party, which breach is not cured within thirty (30) days
after notice of the same given by the non-breaching party, or (ii) of the
insolvency of the other party, filing by or against the other party of
bankruptcy proceedings, making of any assignment for the benefit of creditors by
the other party, or other exercise by or against the other party of rights or
remedies under any statute providing for the relief of debts, then the party not
in breach, insolvent, or involved in such proceedings shall have the right to
terminate this Agreement by giving notice of same to the other. In such event,
the terminating party also shall have all of its rights and remedies at law and
equity, which shall include without limitation rights to damages (including
those related to loss of future opportunities and profits), rights under Article
6 of this Agreement, and rights to recover its costs and expenses (including
among others reasonable attorney fees) related to enforcement of its rights
hereunder or attributable to the breach hereof.
8.4 SURVIVAL. The provisions of Section 2.1, Section 4.2, Section
5.5(d), Section 5.6(b), Sections 5.7(a) and (c), Article 6, Article 7, Article
8, and Article 9 shall survive termination of this Agreement.
ARTICLE 9 - MISCELLANEOUS
9.1 AUTHORIZATION. Each of MFI and HBI respectively represents and
warrants for itself that (i) the execution, delivery, and performance of this
Agreement have been duly authorized by it, (ii) this Agreement constitutes the
valid and binding obligation of it, enforceable in accordance with its terms,
and (iii) the execution and delivery hereof by it does not (a) conflict with or
result in a
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violation of, (b) constitute a default under, (c) require any authorization,
consent, approval, exemption, or other action by or notice to, or filing with,
any court or administrative or governmental body or agency pursuant to, its
organizational documents, any law, statute, rule, or regulation to which it is
subject, or any material agreement, instrument, order, judgment, or decree to
which it is subject.
9.2 SUCCESSOR/ASSIGNS/AFFILIATES. This Agreement shall inure to the
benefit of, and shall be binding upon, the respective successors, legal
representatives, and assigns of the parties. Notwithstanding the foregoing, this
Section 9.2 is not intended to supersede any restrictions on transfer of any
interest expressly provided elsewhere in this Agreement and neither party shall
transfer or assign its rights under this Agreement to any person not an
Affiliate of such party; provided, however, that HBI may transfer its rights,
interests, and obligations hereunder to another Person as part of a transfer of
its internet related business to which this Agreement relates.
Both parties agree that their respective Affiliates shall be bound by
the provisions of this Agreement in the same manner that the parties are bound.
9.3 GOVERNING LAW. This Agreement shall be construed according to, and
governed by, the internal laws of the State of New York without reference to
principles of conflicts of laws.
9.4 ARBITRATION.
(a) The parties agree to this Section 9.4 as the exclusive manner and
means for resolution of all disputes of any kind or nature between them related
to this Agreement and/or the transactions contemplated hereby.
(b) Any dispute shall be settled by final and binding arbitration by a
panel of three arbitrators sitting in Rochester, New York, in accordance with
the rules of the American Arbitration Association. The arbitrators shall
promptly obtain such information regarding the matter as they deem necessary and
shall decide the matter and render a written decision which shall be delivered
to the parties. Each party shall pay the party's own fees and expenses in
connection with any arbitration proceedings, except that the parties shall
equally bear the fees and out-of-pocket expenses of the arbitrators. Any
decision shall be a final and non-appealable determination of the matter, shall
be binding upon each of the parties, and shall be enforceable by the courts of
the State of New York (Seventh Judicial District) and the courts of the United
States (Western District of New York).
9.5 ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties and supersedes all prior communications and agreements related to
the subject matter hereof. Any modification, supplement, or amendment to this
Agreement must be in writing signed by both of the parties.
9.6 NOTICES. Any notice or demand upon any party hereto shall be deemed
to have been sufficiently given or served for all purposes hereof when delivered
in person or by nationally
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recognized overnight courier with receipt requested, or three business days
after it is mailed certified mail postage prepaid, return receipt requested,
addressed to the address shown in the preamble to this Agreement or to such
other address as may be designated by any party by notice given to the other in
the manner described in this Section 9.6.
9.7 SEVERABILITY/CONSTRUCTION. If any provision of this Agreement is
held to be invalid or unenforceable for any reason, the remaining provisions
will continue in full force without being impaired or invalidated. The parties
agree to replace any invalid provision with a valid provision which most closely
approximates the intent and economic effect of the invalid provision. The
parties agree that this Agreement has been prepared in cooperation, and that it
shall not be construed as against any particular party as drafter.
9.8 EXPENSES. Except as otherwise expressly provided herein, both
parties shall be responsible for their own costs and expenses in connection
herewith.
9.9 NO BROKERS. Each party represents and warrants to the other that it
has not involved any brokers or finders in connection with this Agreement or the
transactions contemplated hereby, and agrees to indemnify the other for any
breach of this Section 9.9 by it.
9.10 WAIVER. The waiver by either party of a breach of any provision of
the Agreement will not operate or be interpreted as a waiver of any other or
subsequent breach.
9.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
shall be taken together and deemed to be one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
▇▇▇▇▇▇ BLACK INTERNATIONAL, LTD.
By: /S/ ▇▇▇▇▇▇ ▇. BLACK
------------------------------------
▇▇▇▇▇▇ ▇. Black
Chief Executive Officer
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MARKET FACTS, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
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