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EXHIBIT 10.10
DATED 31 DECEMBER 2004
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TRADE MARK LICENCE AGREEMENT
between
TAYLOR NELSON SOFRES PLC
and
HARRIS INTERACTIVE INC.
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CONTENTS
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CLAUSE
Page
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1.
Interpretation......................................................................1
2.
Commencement and
duration...........................................................3
3.
Licence.............................................................................3
4.
Application of the
mark.............................................................3
5.
Title and
goodwill..................................................................3
6.
Trade mark
registrations............................................................4
7.
Registration of permitted
user......................................................4
8.
Duties of the
parties...............................................................4
9.
Royalties...........................................................................5
10. Taxes and
witholdings...............................................................6
11. Quality
control and approval
procedures.............................................6
12.
Indemnity...........................................................................7
13. Disclosure
and
confidentiality......................................................8
14. Assignment
and
sub-licensing........................................................9
15.
Termination.........................................................................9
16. Effect of
termination..............................................................11
17. Force
majeure......................................................................12
18. Entire
agreement...................................................................12
19.
Variation..........................................................................12
20.
Invalidity.........................................................................12
21. Rights of
third
parties............................................................13
22.
Non-waiver.........................................................................13
23.
Notices............................................................................13
24.
Relationship.......................................................................13
25. Law and
jurisdiction...............................................................13
SCHEDULE
SCHEDULE 1
MARKS.......................................................................
Registered trade
marks.............................................................15
2.
Trade mark
applications............................................................15
SCHEDULE 2
TERRITORY.................................................................16
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THIS AGREEMENT is dated 31 December,
2004
PARTIES
(1) TAYLOR
NELSON SOFRES PLC incorporated and registered in England and
Wales with number 912624 whose registered office is at TNS
House,
Westgate, London W5 1UA (PROPRIETOR).
(2) HARRIS
INTERACTIVE INC. incorporated and registered in the state of
Delaware and whose principal place of business is 60 Corporate
Woods,
Rochester, New York 14623-1457 (LICENSEE).
BACKGROUND
(A) The
Proprietor and/or its Affiliates acquired ownership of the
registered trade marks (together the "Original Marks") listed
in
Schedule 1 and all the rights in the Territory listed on Schedule 2
to
the Harris Names (the "Name Rights") by an agreement dated 13 July
1994
between Sofres
S.A. (now called TNS Sofres S.A., "Sofres") (1) Louis
Harris International, Inc, and Louis Harris and Associates, Inc (2)
and
Gannett Co., Inc.
(B) The
Proprietor granted a limited non-exclusive licence to Licensee
to
use certain of the Marks by a licence agreement dated 1 February,
2000
(as amended).
(C) The
Proprietor and Licensee entered into a supplement to the
licence
agreement to resolve issues relating to rights in the service
mark
"HPOL" ("HPOL" and together with the Original Marks, the
"Marks").
(D) The
Licensee wishes to have more extensive and exclusive use of the
Marks, and Name Rights (collectively, the "Licensed Rights") in
the
Territory.
(E) The
Proprietor has agreed to grant the Licensee a licence to use
the
Licensed Rights on the terms set out in this agreement.
AGREED TERMS
1.
INTERPRETATION
1.1 The
definitions and rules of interpretation in this clause apply in
this agreement.
AFFILIATES: means any company, partnership or other association
or
entity having legal personality in its principal place of business
or
any person or group of persons which directly or indirectly
controls,
is controlled by or is under the common control of either the
Proprietor or the Licensee.
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ASSIGNMENT: the agreed form of assignment of the Marks initialled
by
the
parties and annexed to this Agreement.
COMMENCEMENT DATE: the date on which this agreement is deemed to
have
come into force as stated in clause 2.
HARRIS NAMES: mean HARRIS, HARRIS POLL, HARRIS SURVEY and
HARRIS
RESEARCH CENTRE,
LOUIS HARRIS AND LOUIS HARIS FRANCE.
PRIOR AGREEMENTS: the trademark licence agreement dated 1st
February,
2000 (as amended) and the database access agreement of the same
date
between the parties.
ROYALTY: the sums payable pursuant to clause 9 below.
SERVICES: the provision of market research services, survey,
research,
tracking and research-related services, whether on-line using
the
internet or otherwise.
TERRITORY: the countries listed in Schedule 2.
TERM: the term of years of the licence granted by this agreement as
set
out in clause 2.1 below.
1.2 In this
agreement where the context admits:
(a) references
to THIS AGREEMENT or to any other agreement or
document referred to in this agreement mean this agreement or
such other agreement or document as amended, varied,
supplemented, modified or novated from time to time and
include the schedules; and
(b) references
to PERSON includes natural persons, firms,
partnerships, companies, associations, governments, states,
foundations and trusts (in each case whether or not having
separate legal personality); and
(c) reference to
clauses and schedules are references to clauses
and schedules of and to this agreement and references to
paragraphs are, unless otherwise stated, references to
paragraphs of the schedule in which the reference appears; and
(d) any
reference to a document being "IN THE AGREED FORM" means a
document in a form agreed between the parties and initialled
by, or on behalf of, each of them for the purposes of
identification.
1.3 The
headings and sub-headings are inserted for convenience only and
shall not affect the construction of this agreement.
1.4 Each of
the schedules shall have effect as if set out in this
agreement.
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2.
COMMENCEMENT AND DURATION
2.1 This
agreement shall be deemed to have come into force on 31
December
2004 and, subject to earlier termination pursuant to clause 15,
shall
continue in force for a period of five (5) years from that date
(the
"TERM").
2.2 On the
later of 31 December 2004 and the date of signature of this
Agreement by the Licensee and the Proprietor, the Prior
Agreements
shall immediately end and be of no further force and effect.
3.
LICENCE
3.1 The
Proprietor grants the Licensee an exclusive (including as
against
Proprietor, subject to clause 3.2) licence to use the Licensed
Rights
in the Territory, and to grant sub-licences to its Affiliates for
so
long only as they remain Affiliates of the Licensee, subject to
the
provisions of this agreement.
3.2
Notwithstanding the provisions of clause 3.1, Proprietor retains
the
right to continue to use, in the same manner as Proprietor has
done
prior to the date of this Agreement, the Original Marks in
connection
with its business in France carried on under the name "Louis
Harris"
throughout the term of this agreement, with the right to grant
a
co-terminous sub-licence to any person who acquires the whole or
a
substantial part of such Louis Harris business, such rights to
continue
only until this agreement is terminated.
4.
APPLICATION OF THE MARK
4.1 The
Licensee shall have the right at any time during the term of
this
agreement to use, in the Territory, name(s) which include all or
part
of the Licensed Rights in addition to the Original Names, provided
that
any such name as used in France must not be the same as, or
confusingly
similar to, any name then being used by the Proprietor or its
Affiliates and permitted sub-licencees in with respect to the
Louis
Harris business in France in compliance with this agreement.
4.2 If the
parties are unable to agree whether the use of any such name(s)
by the Licensee is the same as, or confusingly similar to, any
name
then being used by the Proprietor or its Affiliates and
permitted
sub-licencees in compliance with this agreement, the provisions
of
clause 25.2 shall apply.
4.3 The
Licensee shall use the Licensed Rights within the Territory in
a
form reasonably consistent with the form in which the Licensee may
use
all or any of the Licensed Rights outside the Territory.
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5.
TITLE AND GOODWILL
5.1 The
Licensee acknowledges that the Proprietor is the owner of the
Original Marks. The Licensee shall not dispute or challenge the
validity of the Original Marks, or (subject to compliance with
clause
3.2) the rights of the Proprietor to the Marks, during the term of
this
Agreement.
5.2 Any
goodwill derived from the use by the Licensee of the Original
Marks
accrues to the Proprietor. The Proprietor may at any time call for
a
confirmatory assignment of that goodwill and the Licensee shall
immediately execute it.
6.
TRADE MARK REGISTRATIONS AND DOMAIN NAMES
6.1 During the
term of this agreement, the Licensee shall not apply for or
obtain registration of the Marks for any goods or services in
the
Territory without the prior consent of Proprietor, which shall not
be
unreasonably conditioned, delayed or withheld.
6.2 The
Proprietor does not own any domain names or other URLs relating
to
the Marks or Name Rights nor, as far as the Proprietor is aware, do
any
of its Affiliates. In the event that the Proprietor or Affiliates
do
now or here after own any such domain names or URLs, the
Proprietor
shall procure their assignment to Licensee concurrently with the
legal
assignment of the Licensed Rights.
7.
REGISTRATION OF PERMITTED USER
The Licensee shall apply to the Registrar of Trade Marks to
register
this agreement as a Licence under the provisions of the Trade Marks
Act
1994 and to make any other filings that it considers necessary
or
prudent to record its rights under this Agreement.
8.
DUTIES OF THE PARTIES
8.1 The
Licensee shall not do or omit to do anything to diminish the
rights
of the Proprietor in the Marks or impair any registration of the
Marks.
8.2 The
Proprietor warrants that it or one of its Affiliates is the
owner
of the Marks. The Proprietor shall take steps to maintain the
existing
registration of the Marks and prosecute to registration any
pending
applications and the Licensee shall provide, at the request and
expense
of the Proprietor, all necessary assistance in maintaining such
registration or prosecuting any applications for registration
in
respect of the Marks.
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8.3 The
Licensee shall as soon as it becomes aware thereof give the
Proprietor in writing full particulars of any use or proposed use
by
any other person, of a trade name, trade mark or get-up of goods
or
mode of promotion or advertising which amounts or might amount
either
to infringement
of the Proprietor's rights in relation to the Marks or
to passing-off.
8.4 If the
Licensee becomes aware that any other person, firm or company
alleges that the Marks or any part of them is invalid or that use
of
the Marks infringes any rights of another party or that the Marks
or
any part of them are otherwise attacked or attackable, the
Licensee
shall immediately give the Proprietor full particulars in
writing
thereof and shall make no comment or admission to any third party
in
respect thereof.
8.5 The
Proprietor shall have the conduct of all proceedings relating
to
the Marks within the Territory and shall, subject as provided in
this
clause 8.5, in its sole discretion decide what action if any to
take in
respect of any infringement or alleged infringement of the Marks
or
passing-off or any other claim or counterclaim brought or
threatened in
respect of the use or registration of the Marks within the
Territory.
The Licensee may call on the Proprietor to take proceedings in
respect
of any infringement or alleged infringement of the Marks in the
Territory in respect of any matter which affects the Licensee's
interests. If the Proprietor refuses to do so or fails to do so
within
two weeks after being called upon by the Licensee, the Licensee
may
bring the proceedings in its own name.
9.
ROYALTIES AND ASSIGNMENT
9.1 The
Licensee undertakes to pay to the Proprietor a royalty of
$1,000,000 (one million U.S. dollars) per annum which shall be paid
to
the Proprietor in the amount of $2,000,000 (Two million US Dollars)
on
31 December, 2004 and an additional $2,000,000 (Two million US
Dollars)
on 31 December 2005, after which this licence shall be fully paid
up.
9.2 If the
Licensee fails to pay any amount payable by it under this
agreement, the Proprietor shall be entitled but not obliged to
charge
interest on the overdue amount, payable by the Licensee forthwith
on
demand, from the due date up to the date of actual payment, after
as
well as before judgment, at the rate of 8 per cent per annum.
Such
interest shall accrue on a daily basis and be compounded quarterly.
The
Proprietor reserves the right to claim interest under the Late
Payment
of Commercial Debts (Interest) Act 1998.
9.3 The
Licensee will have the right, exercisable at any time prior to
31
December 2007 on giving the Proprietor not less than 30 days
prior
written notice, such notice to be given at any time on or before
1
December 2007, to make
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effective the legal assignment of the Licensed Rights to the
Licensee
on the terms set out in the Assignment.
10. TAXES AND
WITHOLDINGS
10.1 All payments to
be made by the Licensee under this agreement are
inclusive of value added tax (if applicable), consumption tax or
other
sales tax, or customs duty which shall where appropriate be payable
by
the Proprietor out of the amounts paid by Licensee to the
Proprietor
pursuant to clause 9.1.
10.2 All payments to
be made by the Licensee under this agreement shall be
paid free and clear of any deductions, withholdings for or on
account
of tax, setoffs or counterclaims whatsoever, except any deduction
or
withholding which is required by law in which case the sum payable
by
the Licensee, in respect of which such deduction or withholding
is
required to be made, shall be net of such deduction or
withholding.
11. QUALITY
CONTROL AND APPROVAL PROCEDURES
11.1 All Services
provided by the Licensee under or by reference to, or
other use by Licensee of, the Marks within the Territory shall be
of
comparable quality to those provided by the Licensee elsewhere in
the
world commensurate with maintenance of the goodwill associated with
the
use of the Marks worldwide and reasonable industry practice.
11.2 In the event
that the Proprietor believes that any of the
