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Exhibit 10.55
CONFIDENTIAL TREATMENT REQUESTED: Certain
portions of this document have been
omitted pursuant to a request for
confidential treatment and, where applicable,
have been marked with an asterisk (****) to
denote where omissions have been
made. Note that five pages of this exhibit
contain omitted material pursuant to
this request. The confidential material has
been filed separately with the
Securities and Exchange Commission.
AMENDED AND RESTATED MARKETING PARTNERSHIP AGREEMENT
This
Amended and Restated Marketing Partnership Agreement ("Agreement")
is
made and entered into this 11th day of May,
2005, by and between OTX
Corporation, a Delaware corporation
("OTX"), having its principal place of
business at 1024 N. Orange Drive,
Hollywood, CA 90038, Zing Wireless, Inc., a
California corporation ("GoZing"), having
its principal place of business at
16501 Ventura Blvd., Suite 250, Encino, CA
91436 and Greenfield Online, Inc., a
Delaware corporation ("Greenfield"), having
its principal place of business at
21 River Road, Wilton, CT 06897. This
Agreement replaces and supersedes in its
entirety the Marketing Partnership
Agreement dated as of February, 2001 (which
was subsequently amended on August 21, 2001
and further amended and restated on
May 1, 2004) by and between OTX and GoZing,
with reference to the following
facts:
A. GoZing is in the business of providing marketing research
companies with online survey respondents
and has created its own
permission-based community of opt-in
members.
B. OTX is in the business of conducting market research through
interactive online surveys and other
means.
C. GoZing was acquired by, and became a wholly owned subsidiary
of,
Greenfield Online, Inc. on February 8,
2005.
D. The parties have mutually agreed to modify the existing
agreement(s) between them. Any prior
agreements between GoZing and OTX will be
terminated upon the written execution of
this Agreement.
E. Greenfield and OTX desire to enter into an agreement pursuant
to
which OTX will conduct market research
using Greenfield Online Members.
NOW, THEREFORE, the parties hereby agree as follows:
1. Certain
Definitions.
Each of
the terms defined in this Section 1 shall have the following
respective meanings:
"Completed Survey," means each OTX Survey successfully submitted
by
a Greenfield Member, who was sent by Greenfield either via an
email
invitation or
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through the member's lounge or open area, and received by OTX,
which
is completed to the reasonable satisfaction of OTX (i.e.,
sufficiently to permit OTX to verify the data consistent with
its
normal business practices).
"Effective Date" means the date on which all of the parties
sign
this Agreement.
"Greenfield Affiliate Member" means an individual who opts in
to
take a survey but was not a Greenfield Member prior to the launch
of
such survey.
"Greenfield Member" means an individual who has opted-in to be
a
survey panelist through a survey-related web site that is hosted
and
maintained by Greenfield, or any of its U.S. based
subsidiaries.
"Interactive Market Research" means online communication for
the
purpose of conducting research from OTX to Greenfield Members
whereby such online communication session was initiated by some
invitation by email or otherwise from Greenfield to such
Greenfield
Member.
"OTX Survey" means online questionnaires designed to elicit
market
research data about a product/service through Interactive
Market
Research.
"Survey Fee" means a monetary payment to Greenfield for each
Completed Survey.
2. Greenfield Services
and Related Obligations of OTX.
2.1
During the Term,
OTX shall be entitled to utilize Greenfield Members
in order to conduct OTX Surveys in order to collect market
research
data for its clients.
2.1.1 OTX agrees and understands that Greenfield, in its sole
discretion, retains the exclusive right to market OTX Surveys
to Greenfield Members by email unless such Greenfield Member
contacts OTX from another panel source, web source or other
method unrelated to Greenfield. Greenfield is the sole owner
of specific demographic data collected on Greenfield Members
via its own web sites or its own marketing efforts. OTX is the
sole owner (or owner on behalf of its clients) of any and all
aggregated (non-personally-identifiable) demographic data
relating to Greenfield Members collected via the OTX Survey
site in accordance with this Agreement.
2.2
OTX represents,
warrants and covenants to Greenfield that, during
the Term:
2.2.1 OTX agrees to pay Greenfield a Survey Fee according to
Exhibit
A, attached hereto and incorporated herein as part of this
Agreement, for
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each Completed Survey. Such Survey Fees are subject to
adjustment as set forth in Section 4.1.
2.2.2 OTX is a corporation validly existing under the laws of
the
state of Delaware. OTX owns all of the right, title and
interest in and to the OTX surveys and has the right to
display to Greenfield Members the content thereof. OTX has all
necessary licenses, authorizations, registrations and
approvals and the power and authority to enter into this
Agreement and to perform its obligations set forth herein.
Neither the execution nor delivery of this Agreement by OTX
nor the performance by OTX of its obligations set forth herein
will constitute
a material breach by OTX of any other material
agreement to which it is a party.
2.3
Omitted.
2.4
Greenfield
represents, warrants and covenants to OTX that, during
the Term:
2.4.1 Greenfield agrees to present the OTX Survey opportunities
to
Greenfield Members, when possible, in order to generate market
research data for OTX's purposes.
2.4.2 Greenfield will clearly indicate in writing (or email) in
advance for any OTX survey where it is sending to the OTX
survey Greenfield Affiliate Members. Pricing for Completed
Surveys for Greenfield Affiliate Members may be different than
for Greenfield Members and the parties will agree to such in
advance of any survey where Greenfield Affiliate Members are
to be used.
2.4.3 Greenfield will use commercially reasonable efforts to
not
share any information (for example, but not limited to: the
existence of projects, timing, client names, client volumes,
project names, pricing, methodology, survey content, survey
technology
or any other similar information) that is acquired
in the process of providing Greenfield Members to OTX for OTX
Surveys to any person, entity, third party, employee, or
contractor involved in Greenfield operations that, to
Greenfield's knowledge, directly compete with OTX.
2.4.4 Omitted.
2.4.5 Greenfield is a corporation duly organized and validly
existing under the laws of the state of Delaware. Greenfield
owns all of the right, title and interest in and to its web
sites, and has the right to offer the OTX surveys, at its sole
discretion, to its opt-in community of Greenfield Members and
Greenfield Affiliate Members. Greenfield has all necessary
licenses, authorizations, registrations and approvals and the
power and authority to enter into this Agreement and to
perform its obligations set forth herein. Neither the
execution nor delivery of this Agreement by Greenfield nor the
performance by Greenfield of its obligations set forth herein
will constitute
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a material breach by Greenfield of any other material
agreement to which it is a party.
2.4.6 Greenfield will service the OTX account from its West
Coast
operations in Los Angeles comprised primarily of personnel
that were former GoZing employees to the extent reasonably
practicable.
2.4.7 OTX will receive service at a level that is consistent
with
the level historically provided by GoZing. There will be no
project minimums or individual work orders.
2.4.8 Greenfield will use reasonable commercial efforts to
provide
sufficient volumes of Greenfield Members to meet individual
survey commitments (as evidenced in fax, written, email or
other web application communication) that its team makes to
OTX on specific survey projects where such commitments are
made. It is expressly agreed that surveys have a targeted end
date and that such date is important to meeting end clients'
objectives.
2.5
OTX hereby
grants to Greenfield the non-exclusive, non-transferable
right to use (i.e. to copy, transmit, distribute and display)
during
the Term the OTX logos in the manner described in this
Agreement.
All of such use of the OTX logos shall inure to the benefit of
OTX
and shall not create any rights, title or interest in the OTX
logos
for Greenfield or any other party. Greenfield agrees that as
between
OTX and Greenfield, OTX owns and continues to own exclusively,
all
right, title and interest in and to the OTX logos and the other
OTX
trade names and trademarks in perpetuity. Upon OTX's request,
Greenfield shall execute and deliver to OTX such documents,
instruments and agreements as OTX may reasonably request in order
to
evidence or preserve OTX's exclusive rights in and to all OTX
logos
and the other OTX trade names and trademarks in perpetuity.
2.6
Greenfield will
create and host a web landing page which Greenfield
Members will be linked to upon completing an OTX survey in order
to
register for rewards through Greenfield.
2.7
Greenfield will
be allowed to display live survey opportunities on
its web sites to panelists that log into their personal survey
account. The surveys must be demographically and geographically
targeted to the user based on the needs of each survey. When
displaying a survey opportunity to a user, Greenfield will not
describe the type of survey or use any words that convey the
content
or the client of the survey, such as "entertainment survey". When
a
user joins Greenfield's survey program, there will be a
standard
******* cooling off period whereby the user will not see any
OTX
Surveys to take in their personal account. After *******, the
user
can see and take OTX Surveys. The ****** number can be adjusted
lower or higher with the permission or request of OTX. If the
******* is requested to be higher, then the maximum period of
time
can be ******. After ****** the default duration will go back
to
********. Greenfield will limit the number of times a
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user can click an email invitation link to only ********. Both
parties will monitor the effectiveness of limiting to ***** in
terms
of customer service inquiries, traffic flow, and security.
3. Term.
3.1
The term of the
obligations of the parties set forth in Section 2
hereof shall commence on the Effective Date, and shall continue
for
a period of two (2) years from the Effective Date (the "Term").
After such period this Agreement shall automatically be extended
for
additional one (1) year periods unless either Greenfield or OTX
notifies the
other at least sixty (60) days prior to the end of such
term that it is not willing to extend the Agreement.
3.2
The Term may
otherwise be terminated at any time by written notice
(i) by Greenfield in the event that OTX fails to pay Survey Fees
due
Greenfield (as long as such fees are not being disputed in good
faith), (ii) by Greenfield in the event of any other material
breach
of this Agreement by OTX, (iii) by Greenfield for any reason on
90
days notice, or (iv) by OTX in the event of any material breach
of
this Agreement by Greenfield; provided, however, that prior to
either party having the right to terminate the Agreement pursuant
to
Section 3.2(i), (ii) or (iv), such party shall give the other
party
written notice specifying such breach and 30 days to cure such
breach, if curable (or such longer time as may be reasonably
necessary to cure such breach if the party in breach acts
expeditiously and if the nature of such breach requires a
longer
period).
3.3
The provisions
of this Agreement--other than Section 2 and, with
respect to surveys not yet commenced, Section 4 hereof--shall
continue in full force and effect after the termination of the
Term
in accordance with their respective terms.
4. Fees.
4.1
In consideration
for Gre
