Amended & Rstd Strategic Online Research Ser. Agreement

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 22000 AOL Way, Dulles, Virginia 20166 and SPSS Inc. ("SPSS"), a Delaware corporation, with offices located at 233 S. Wacker Drive, 11th Floor, Chicago, Illinois 60606. 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 Level 1 Screening. AOL shall be 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.
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