Operating Agreement - NetRatings Inc. and ACNielsen eRatings.com
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OPERATING AGREEMENT
Between
NETRATINGS, INC.
And
ACNIELSEN ERATINGS.COM
Dated as of
September 22, 1999
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TABLE OF CONTENTS
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ARTICLE I Definitions. . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1. "ACNIELSEN" . . . . . . . . . . . . . . . . . . . . . .1
1.2. "ACNIELSEN SAMPLING METHODOLOGY". . . . . . . . . . . .1
1.3. "ACNSUB TRADEMARKS" . . . . . . . . . . . . . . . . . .2
1.4. "AFFILIATE" . . . . . . . . . . . . . . . . . . . . . .2
1.5. "ANCILLARY AGREEMENTS". . . . . . . . . . . . . . . . .2
1.6. "APPLICABLE LAWS" . . . . . . . . . . . . . . . . . . .2
1.7. "APPROVED INTERNET SERVICE" . . . . . . . . . . . . . .2
1.8. "BACK END SOFTWARE. . . . . . . . . . . . . . . . . . .2
1.9. "BUSINESS PANEL". . . . . . . . . . . . . . . . . . . .2
1.10. "COLLECTION SOFTWARE. . . . . . . . . . . . . . . . . .2
1.11. "CONSULTING SERVICES" . . . . . . . . . . . . . . . . .2
1.12. "DATA PROCESSING AGREEMENT. . . . . . . . . . . . . . .2
1.14. "DOCUMENTATION" . . . . . . . . . . . . . . . . . . . .3
1.15. "E-COMMERCE . . . . . . . . . . . . . . . . . . . . . .3
1.16. "E-COMMERCE SERVICE" . . . . . . . . . . . . . . . . .3
1.17. "ENTITY". . . . . . . . . . . . . . . . . . . . . . . .3
1.18. "EXCLUDED COUNTRIES". . . . . . . . . . . . . . . . . .3
1.19. "FISCAL YEAR" . . . . . . . . . . . . . . . . . . . . .3
1.20. "GAAP". . . . . . . . . . . . . . . . . . . . . . . . .3
1.21. "HOME PANEL". . . . . . . . . . . . . . . . . . . . . .3
1.22. "INITIAL RELEASE" . . . . . . . . . . . . . . . . . . .3
1.23. "INTELLECTUAL PROPERTY RIGHTS". . . . . . . . . . . . .3
1.24. "INTERNET MEASUREMENT PANEL". . . . . . . . . . . . . .4
1.25. "INTERNET SERVICE". . . . . . . . . . . . . . . . . . .4
1.26. "LICENSE AGREEMENT" . . . . . . . . . . . . . . . . . .4
1.27. "LOCALIZED SOFTWARE . . . . . . . . . . . . . . . . . .4
1.28. "MERGED DATA" . . . . . . . . . . . . . . . . . . . . .4
1.29. "NET CUSTOMER BILLINGS" . . . . . . . . . . . . . . . .4
1.30. "NIELSEN TRADEMARK" . . . . . . . . . . . . . . . . . .4
1.31. "NMR. . . . . . . . . . . . . . . . . . . . . . . . . .4
1.32. "NMR AGREEMENTS . . . . . . . . . . . . . . . . . . . .4
1.33. "NORTH AMERICA" . . . . . . . . . . . . . . . . . . . .4
1.34. "NRI PROPRIETARY SOFTWARE . . . . . . . . . . . . . . .4
1.35. "NRI TRADEMARKS". . . . . . . . . . . . . . . . . . . .4
1.36. "OBJECT FORM. . . . . . . . . . . . . . . . . . . . . .4
1.37. "OPERATING COMMITTEE" . . . . . . . . . . . . . . . . .4
1.38. "OPERATING COMMITTEE APPROVAL" and "APPROVED BY THE
OPERATING COMMITTEE" . . . . . . . . . . . . . . . . . . . . .5
1.39. "PANEL" . . . . . . . . . . . . . . . . . . . . . . . .5
1.40. "PANEL MEMBER". . . . . . . . . . . . . . . . . . . . .5
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1.41. "PERSON". . . . . . . . . . . . . . . . . . . . . . . .5
1.42. "STOCKHOLDERS AGREEMENT" . . . . . . . . . . . . . . .5
1.43. "TERRITORY" . . . . . . . . . . . . . . . . . . . . . .5
1.44. "THIRD PARTY" . . . . . . . . . . . . . . . . . . . . .5
1.45. "THIRD-PARTY SOFTWARE". . . . . . . . . . . . . . . . .5
1.46. "UPGRADE" and "UPGRADES". . . . . . . . . . . . . . . .5
ARTICLE II Operation of the Internet Service. . . . . . . . . . . . . . .5
2.1. Marketing; Pricing; Standard Contracts. . . . . . . . .5
2.2. Panel Logistics . . . . . . . . . . . . . . . . . . . .6
2.3. Product Quality Control . . . . . . . . . . . . . . . .7
2.4. Staffing. . . . . . . . . . . . . . . . . . . . . . . .8
2.5. Site Inspections. . . . . . . . . . . . . . . . . . . .8
2.6. Other Technologies. . . . . . . . . . . . . . . . . . .8
2.7. Exclusive Rights. . . . . . . . . . . . . . . . . . . .9
ARTICLE III Operating Committee . . . . . . . . . . . . . . . . . . . . . 9
3.1. Operating Committee . . . . . . . . . . . . . . . . . .9
ARTICLE IV Technology Ownership Rights. . . . . . . . . . . . . . . . . 11
4.1. NRI Ownership Rights. . . . . . . . . . . . . . . . . 11
4.2. ACNSub Ownership Rights . . . . . . . . . . . . . . . 12
ARTICLE V Net Customer Billings . . . . . . . . . . . . . . . . . . . .13
5.1. Payment Percentages . . . . . . . . . . . . . . . . . 13
5.2. Payments. . . . . . . . . . . . . . . . . . . . . . . 14
5.3. Right of Inspection . . . . . . . . . . . . . . . . . 14
ARTICLE VI Trademarks; Licenses . . . . . . . . . . . . . . . . . . . . 14
6.1. Trademarks. . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VII Termination . . . . . . . . . . . . . . . . . . . . . . . . .19
7.1. Termination . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VIII Dispute Resolution . . . . . . . . . . . . . . . . . . . . . 22
8.1. General Dispute Principles. . . . . . . . . . . . . . 22
8.2. Arbitration of Other Disputes . . . . . . . . . . . . 22
ARTICLE IX Confidentiality. . . . . . . . . . . . . . . . . . . . . . . 24
9.1. Confidential Information. . . . . . . . . . . . . . . 24
9.2. Non-Confidential Information. . . . . . . . . . . . . 25
ARTICLE X Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . 25
10.1. Governing Law . . . . . . . . . . . . . . . . . . . . 25
10.2. Successors and Assigns. . . . . . . . . . . . . . . . 25
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10.3. Transactions with Affiliates. . . . . . . . . . . . 25
10.4. Entire Agreement; Amendment . . . . . . . . . . . . . 25
10.5. Notices, etc. . . . . . . . . . . . . . . . . . . . . 26
10.6. Delays or Omissions . . . . . . . . . . . . . . . . . 27
10.7. Publicity . . . . . . . . . . . . . . . . . . . . . . 27
10.8. Expenses. . . . . . . . . . . . . . . . . . . . . . . 27
10.9. Counterparts. . . . . . . . . . . . . . . . . . . . . 27
10.10. Severability. . . . . . . . . . . . . . . . . . . . . 27
10.11. Titles and Subtitles. . . . . . . . . . . . . . . . . 27
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Exhibit A NRI Proprietary Software
Exhibit B Data Processing Agreement Term Sheet
Exhibit C Software License Agreement
Exhibit D Panel Member License Agreement
Exhibit E Operating Committee
Exhibit F Trademarks and Copyright Notices
Exhibit G Third Party Software
Exhibit H Example of Calculation of Discount Allocation
Exhibit I Named Entities
Exhibit J Mediametrie Term Sheet
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OPERATING AGREEMENT
This Operating Agreement (this "Agreement") is made as of September
22, 1999 (the "Effective Date"), between NetRatings, Inc., a Delaware
corporation with a place of business at 830 Hillview Court, Milpitas,
California 95035 ("NRI"), and ACNielsen eRatings.com, a Delaware corporation
with its principal place of business at 177 Broad Street, Stamford,
Connecticut 06901 (individually, "ACNSub" and, collectively with NRI, the
"Parties").
BACKGROUND
A. ACNSub and NRI wish to cooperate in the development, marketing,
sale and distribution of a data collection, processing, storage, analysis and
reporting service to measure worldwide Internet usage.
B. NRI is currently engaged in providing that service in North
America and Japan. The parties believe that combining NRI's expertise with
the expertise of ACNSub and its Affiliates in conducting market research and
marketing in certain other territories will enable the parties to create a
worldwide Internet measurement business.
C. Simultaneously with the execution and delivery of this
Agreement, ACNielsen Corporation and NRI are entering into a Series D Stock
Purchase Agreement pursuant to which, among other things, ACNielsen
Corporation has become an investor in NRI (the "Investment Agreement") and a
Common Stock Purchase Agreement pursuant to which NRI has become an investor
in ACNSub.
D. In consideration of these premises, and of the mutual promises
and conditions contained in this Agreement, ACNSub and NRI hereby agree as
follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meanings indicated.
1.1. "ACNIELSEN" shall mean ACNielsen Corporation, a Delaware
corporation.
1.2. "ACNIELSEN SAMPLING METHODOLOGY" shall mean AC Nielsen's
proprietary analytical and statistical protocols, methodologies for
developing universe estimates, sampling methodologies and related methods,
processes and technologies for the identification, selection and recruitment
of households and Persons within certain specified market, demographic,
geographic and other criteria,
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in each case as the same exist on the Effective Date or as the same may
hereafter be improved, enhanced or modified by ACNielsen, including all
existing and further derivatives thereof.
1.3. "ACNSUB TRADEMARKS" shall mean the trademarks, logos and trade
names of ACNSub listed on EXHIBIT F.
1.4. "AFFILIATE" shall mean a Person that controls, is controlled by or
is under common control with another Person. For purposes of this Agreement,
"control" shall mean direct or indirect ownership of more than 50% of the voting
interest or income interest in an Entity, or such other relationship as, in
fact, constitutes actual control.
1.5. "ANCILLARY AGREEMENTS" shall mean, collectively, the License
Agreement and the Data Processing Agreement.
1.6. "APPLICABLE LAWS" shall mean all foreign, federal, state and local
laws, statutes, rules and regulations which have been enacted by a governmental
authority and are in force as of the Effective Date or which are enacted by a
governmental authority and come into force during the term of this Agreement, in
each case to the extent that the same are applicable to the performance by the
Parties of their respective obligations under this Agreement.
1.7. "APPROVED INTERNET SERVICE" shall mean the Internet Service to
be provided by the parties pursuant to this Agreement but shall not include
any E-Commerce Service unless Approved by the Operating Committee.
1.8. "BACK END SOFTWARE" shall mean the Object Form of the (a) Initial
Release and (b) Updates of the part of the NRI Proprietary Software that is
designed to be installed on a central computer system or systems to collect and
aggregate the data collected by the Collection Software as described in more
detail on EXHIBIT A.
1.9. "BUSINESS PANEL" means an Internet Measurement Panel consisting
of Panel Members who access the Internet from their work place.
1.10. "COLLECTION SOFTWARE" shall mean the Object Form of the (a)
Initial Release and (b) Updates of the part of the NRI Proprietary Software that
is installed on a Panel Member's computer to gather data about such Panel
Member's Internet usage activities as described in more detail on EXHIBIT .
1.11. "CONSULTING SERVICES" shall mean services based on data
collected by the Internet Measurement Panels or the Panels developed by NRI
or its joint venture partners based outside of the Territory (including Japan
to the extent permitted under NRI's agreements with Netratings KK, a Japanese
corporation, as in effect on the date hereof) which are based on the NRI
Proprietary
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Software and which are custom or ad hoc analysis of the data. The licensing
sale of data and provision of analysis of data on a recurring basis are not
Consulting Services.
1.12. "DATA PROCESSING AGREEMENT" shall mean a Data Processing
Agreement covering the matters set forth in the term sheet attached as
EXHIBIT B.
1.13. "DESIGNATED COUNTRIES" shall mean countries where the provision
of the Approved Internet Service or the use of the NRI Proprietary Software
would require the prior approval of the United States Government by statute,
regulation or executive order. Currently, Designated Countries are Libya,
North Korea, Iran, Iraq, Cuba, Sudan and Syria.
1.14. "DOCUMENTATION" shall mean all digital or printed documents,
flow charts, design specifications, and any other information reasonably
necessary to use and modify the NRI Proprietary Software, including any
amendments and modifications thereto, whether presently existing or created
hereafter by or for NRI during the term of this Agreement.
1.15. "E-COMMERCE" shall mean purchases, sales and other transactions
on the Internet.
1.16. "E-COMMERCE SERVICE" shall mean the business of tracking or
measuring E-Commerce, compiling data from such measurement, licensing such
data to third parties and selling consulting services and analysis related
thereto.
1.17. "ENTITY" shall mean any general partnership, limited
partnership, limited liability company, corporation, joint venture, trust,
business trust, cooperative or association, or any foreign trust or foreign
business organization.
1.18. "EXCLUDED COUNTRIES" shall have the meaning set out in the
License Agreement.
1.19. "FISCAL YEAR" shall mean ACNSub's fiscal year.
1.20. "GAAP" shall mean generally accepted accounting principles as
in effect from time to time in the United States of America.
1.21. "HOME PANEL" means an Internet Measurement Panel consisting of
Panel Members who access the Internet from their residences.
1.22. "INITIAL RELEASE" shall mean the version of the NRI Proprietary
Software provided to ACNSub as provided in the License Agreement.
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1.23. "INTELLECTUAL PROPERTY RIGHTS" shall mean all worldwide right,
title and interest of a Person in, to and under any and all: (i) United
States or foreign patents and pending patent applications therefor, including
the right to file new and additional patent applications based thereon,
including provisionals, divisionals, continuations, continuations-in-part,
reissues and reexaminations; (ii) copyrights; and (iii) trade secrets,
know-how, processes, methods, engineering data and technical information.
1.24. "INTERNET MEASUREMENT PANEL" shall mean any Panel developed by
ACNSub or its Affiliates for purposes of monitoring, measuring, analyzing and
reporting on Internet activities in countries in the Territory.
1.25. "INTERNET SERVICE" shall mean and include the business of
tracking or measuring audience, advertising and viewing activities on the
Internet, compiling data from such measurement, licensing such data to third
parties and selling Consulting Services.
1.26. "LICENSE AGREEMENT" shall mean the Software License Agreement
in the form attached as EXHIBIT C hereto.
1.27. "LOCALIZED SOFTWARE" shall mean the versions of the Collection
Software which are designed to operate in a country outside of the United
States.
1.28. "MERGED DATA" shall have the meaning set forth in Section
3.1(c)(iii).
1.29. "NET CUSTOMER BILLINGS" shall have the meaning set forth in
Section 5.1(c).
1.30. "NIELSEN TRADEMARK" shall have the meaning set forth in Section
6.1(c).
1.31. "NMR" shall mean Nielsen Media Research, Inc.
1.32. "NMR AGREEMENTS" shall mean certain agreements between NRI and
Nielsen Media Research, Inc., copies of which have been supplied to ACNSub, with
respect to their strategic alliance to conduct an Internet Service business in
North America.
1.33. "NORTH AMERICA" shall mean and include the United States and
Canada.
1.34. "NRI PROPRIETARY SOFTWARE" shall mean all computer software
programs owned by or developed by or on behalf of NRI as of the Effective Date
and during the Term hereof relating to the Internet Services (but excluding
software for Consulting Services and E-Commerce Services), including without
limitation, the Collection Software, Localized Software, Back End Software and
the other software identified in EXHIBIT A, and all Upgrades thereto. Subject
to Section 4.1(c) below, NRI Proprietary Software expressly excludes any Third
Party Software.
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1.35. "NRI TRADEMARKS" shall mean the trademarks, logos and trade
names of NRI listed on EXHIBIT F.
1.36. "OBJECT FORM" shall mean the machine-readable version of the
source code of a computer program in the firm required for successful
execution by computer equipment.
1.37. "OPERATING COMMITTEE" shall have the meaning set forth in
Section 3.1(a).
1.38. "OPERATING COMMITTEE APPROVAL" and "APPROVED BY THE OPERATING
COMMITTEE" shall have the meaning set forth in Section 3.1(d) below.
1.39. "PANEL" shall mean any group of households or Persons identified
and selected in accordance with the ACNielsen Sampling Methodology for purposes
of generating data to measure specified activities pursuant to this Agreement.
1.40. "PANEL MEMBER" shall mean households, Persons or other
participants comprising any Internet Measurement Panel, which participants
are provided with the Collection Software for individual use (and not for
distribution, remarketing, timesharing or service bureau use) in connection
with the Approved Internet Service in accordance with the terms of the Panel
Member License Agreement set forth as EXHIBIT E."
1.41. "PERSON" shall mean any individual or Entity, and the heirs,
executors, administrators, legal representatives, successors and assigns of
the "Person" when the context so permits.
1.42. "STOCKHOLDERS AGREEMENT" shall mean the Stockholders Agreement
dated this date among ACNielsen, ACNSub and NRI.
1.43. "TERRITORY" shall mean the world except Japan, the United
States, Canada and the Excluded Countries.
1.44. "THIRD PARTY" shall mean, with respect to a Party, any Person
that is not an Affiliate of such Party.
1.45. "THIRD-PARTY SOFTWARE" shall mean software that NRI licenses
from Third Parties and which is embedded in the NRI Proprietary Software.
1.46. "UPGRADE" and "UPGRADES" shall mean one or more updates,
enhancements, upgrades, corrections, new versions, new releases and any other
modifications to the NRI Proprietary Software or documentation.
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ARTICLE II
OPERATION OF THE INTERNET SERVICE
2.1. MARKETING; PRICING; STANDARD CONTRACTS.
(1) As between the Parties, NRI (or Affiliates or Third Parties
designated by it) shall have the exclusive right to conduct, at its sole cost
and expense, all marketing and licensing activities with respect to the Approved
Internet Service to customers located outside of the Territory. To the extent
permitted under the NMR Agreements (as defined in Section 2.1(a)(i)), the
Operating Committee may allocate to ACNSub the right and responsibility to
market and license data to designated customers located in North America. As
between the Parties, ACNSub (or wholly-owned subsidiaries of ACNSub) shall have
the exclusive right to conduct, at its sole cost and expense, all marketing and
licensing activities with respect to the Approved Internet Service to customers
located in the Territory provided, however, that in the event that the parties
enter into an agreement with Mediametrie S.A. on substantially the terms
described in the term sheet attached hereto as Exhibit K (the "Mediametrie
Agreement"), ACNSub consents that marketing and licensing activities in France
shall be conducted pursuant to the Mediametrie Agreement, so long as the
Mediametrie Agreement is in effect..
(2) The Operating Committee will determine all pricing and rate
card matters with respect to the Approved Internet Service, including, without
limitation, any discounts, rebates and other concessions offered to customers.
The Parties will coordinate their marketing and selling efforts so as to
maintain consistent pricing policies and practices among the different customers
for which marketing responsibilities have been allocated hereunder.
(3) NRI and ACNSub may each use their own forms of customer
contracts provided that such form contracts shall be reasonably acceptable to
the other party. ACNSub acknowledges that it has received a copy of NRI's
current form of customer contract and that such form is acceptable to it.
Consistent with legal considerations outside of North America, each party shall
include in its customer contracts provisions regarding scope of data use,
indemnity, limitation of liability and other matters which are not less
favorable in any material respect to the other party than the provisions which
such other party includes in its own form contracts for its own benefit.
(4) As soon as practicable after approval thereof (but in any
event within 60 days after the commencement of its next fiscal year), each Party
shall provide to the other Party its budget and operating plan for such fiscal
year with respect to the Approved Internet Service.
2.2. PANEL LOGISTICS.
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(1) ACNSub or its Affiliates shall have responsibility for the
establishment and maintenance of the Internet Measurement Panels during the term
of this Agreement.
(2) The Parties acknowledge and agree that the ACNielsen
Sampling Methodology imposes certain restrictions and limitations on any oral,
written or other contacts with active and former Panel Members and members of
the sample frame about which NRI has actual knowledge and on the use and
dissemination of data and information relating to the Panel Members, including
their identities and addresses. Accordingly, the Parties hereby undertake and
agree to the following restrictions:
(1) All contacts with active and former Panel Members
shall be controlled by ACNSub, and such contacts shall only occur in compliance
with applicable restrictions contained in the ACNielsen Sampling Methodology.
Neither NRI, its employees nor agents shall contact Panel Members for any
purpose except to the extent such contacts are mutually agreed upon in advance
by ACNSub and NRI, and in any such case in accordance with applicable
restrictions contained in the ACNielsen Sampling Methodology which are disclosed
to NRI in writing.
(2) All data concerning active and former Panel Members
in the Internet Measurement Panels, including the names, addresses, and related
demographic profiles of such Panel Members, prior contact information, current
follow-up status and such other information as is generated by ACNSub or NRI
hereunder (collectively, "Confidential Panel Data") shall be held strictly
confidential by each of the Parties and their respective employees and agents in
accordance with the ACNielsen Sampling Methodology. Such Confidential Panel
Data shall be maintained by each party in a secure database with appropriate
restrictions on access and use which are consistent with the ACNielsen Sampling
Methodology as disclosed to NRI and this Agreement. None of such Confidential
Panel Data shall be sold, transferred or otherwise disseminated by either party
to any Third Party for any reason whatsoever.
(3) Neither party shall permit its employees or
consultants to assist any oral, written or other contact to occur between Panel
Members and customers of the Approved Internet Service or any other Third
Parties.
(3) If ACNSub contracts with ACNielsen or one of its
subsidiaries to provide services to assist ACNSub in performing its obligations
hereunder, ACNSub shall receive such services from ACNielsen or such subsidiary
on the same basis as ACNielsen or such subsidiary provides such services to
ACNielsen or its other subsidiaries, including, without limitation, by paying an
allocable portion of the compensation and benefits of any ACNielsen employees in
the provision of such services and an allocable portion of ACNielsen's overhead
charges.
(4) If after Approval of the Operating Committee NRI makes
any of its employees available to ACNSub, NRI shall be reimbursed by ACNSub for
that portion of the
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compensation and benefits of such employees (including an allocable portion
of overhead charges with respect thereto) which is attributable to the time
that such employee is made available to ACNSub.
(5) In the event that NRI shall develop a methodology for
establishing a Business Panel, NRI shall provide to ACNSub all information,
technology and know-how with respect thereto, in order to assist ACNSub in
establishing Business Panels in the Territory to the extent permitted by the NMR
Agreements.
2.3. PRODUCT QUALITY CONTROL.
(1) DATA PROCESSING AND REPORTS.
(1) All data obtained by either Party from Panel Members
which is marketed hereunder shall be collected, processed, stored and analyzed,
and all reports and analyses supplied to customers of the Approved Internet
Service shall be prepared, in accordance with the edit rules, protocols,
analytical methodologies and quality control standards established from time to
time by the Operating Committee.
(1)
(2) The collection and processing of data from Panel
Members for the Approved Internet Service shall be performed only by the NRI
Proprietary Software.
(3) The Parties shall cooperate to ensure that the
quality control standards Approved by the Operating Committee are maintained
with respect to all aspects of the Approved Internet Service.
(2) PANELS. The selection, maintenance and updating of all
Internet Measurement Panels used in connection with the Approved Internet
Service shall be effected in compliance with the ACNielsen Sampling Methodology,
as adapted, if applicable, for the relevant jurisdiction. ACNSub agrees that it
will incorporate in the ACNielsen Sampling Methodology all improvements,
enhancements or modifications which ACNielsen has developed for its own use and
which are appropriate and reasonably adaptable for use in the Approved Internet
Service. The use of the ACNielsen Sampling Methodology in any country shall
provide an Internet Measurement Panel which meets or exceeds the local standards
in such country for traditional media research panels.
2.4. STAFFING. Each Party shall have and maintain such personnel
(including, without limitation, computer programmers, engineers and technical
personnel) as are sufficient to carry out its responsibilities under this
Agreement.
2.5. SITE INSPECTIONS. Each of the Parties (and its representatives)
shall have the right to visit and inspect the research, development,
manufacturing, distribution and data collection, storage
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and management facilities of the other Party at its own expense in order to
verify the other Party's compliance with the terms and conditions of this
Agreement and to ensure compliance with quality control standards established
by the Operating Committee and by Third Party accrediting agencies or similar
authorities. Each Party shall have the right to conduct such inspections at
least twice per calendar year or more frequently as may be required to comply
with accrediting agency audit standards. All such visits shall occur at
mutually convenient times and dates during normal business hours and will be
carried out in such a way as to not unreasonably disrupt the operations of
the Party being inspected. All information obtained by the inspecting Party
during such visits shall be subject to the confidentiality requirements of
this Agreement.
2.6. OTHER TECHNOLOGIES.
(1) Except for the rights set forth in this Agreement, the
License Agreement or any other Ancillary Agreement relating to the Approved
Internet Service, ACNSub is not acquiring any license or other rights in the NRI
Proprietary Software or in any other software or proprietary technologies owned
or licensed by NRI as of the date of this Agreement or developed or acquired by
NRI during the term of this Agreement.
(2) Except for the rights set forth in this Agreement or any
other Ancillary Agreement relating to the Approved Internet Service, NRI is not
acquiring any license or other rights to any software or other proprietary
technologies owned or licensed by ACNSub or its Affiliates as of the date of
this Agreement.
2.7. EXCLUSIVE RIGHTS.
(1) NRI agrees that neither it nor any of its subsidiaries
shall engage in any Internet Service in North America in partnership, alliance,
joint venture or through any other arrangement with any of the companies listed
in Exhibit J. In addition, neither NRI nor any of its subsidiaries shall
engage, directly or indirectly, in any business which competes with the Approved
Internet Service in the Territory.
(2) ACNSub agrees that neither it nor any of its Affiliates
shall engage, directly or indirectly, in any business which competes with the
Approved Internet Service anywhere in the world; PROVIDED that ACNSub's
agreement under this Section 2.7(b) shall not apply to Japan unless, commencing
no later than 180 days from the date hereof, ACNSub shall be provided access to
all such Internet usage data with respect to Japan to which NRI has access, on
terms not less favorable to ACNSub than those available to NRI.
(3) The Parties acknowledge that E-Commerce Service is not
included in the definition of Approved Internet Service and, accordingly, that
they intend that notwithstanding the foregoing paragraphs (a) and (b) of this
Section 2.7, each Party shall be free to engage in any
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E-Commerce Services anywhere in the world unless otherwise Approved by the
Operating Committee.
(4) Notwithstanding anything in this Section 2.7 to the
contrary, the parties agree that neither Party nor any of its respective
Affiliates shall be deemed to be in violation of the provisions of this Section
2.7 as a result of such Party or any of its Affiliates acquiring (or being
acquired by or becoming an Affiliate of) an entity which conducts a business
which competes with the Approved Internet Service so long as any such violation
is cured within 180 days of such event.
1.53. LIMITATIONS ON EXERCISE OF RIGHTS. The Parties acknowledge that
the exercise of the rights under the License Agreement and the provision of the
Approved Internet Service in the Designated Countries requires certain approvals
from the United States Government. ACNSub agrees not to exercise its rights
under the License Agreement or provide the Approved Internet Service in the
Designatged Countries until such permissions are obtained. Upon the written
request of ACNSub, NRI agrees to use reasonable commercial efforts to obtain
such approvals from the United States Government with the assistance of ACNSub.
ARTICLE III
OPERATING COMMITTEE
3.1. OPERATING COMMITTEE.
(1) The Parties shall form an operating committee (the
"Operating Committee") to coordinate the activities of the Parties under this
Agreement. The Operating Committee will be comprised of four members, two of
whom shall be representatives of ACNSub and two of whom shall be representatives
of NRI, provided that the representatives of each Party shall cast a single vote
on behalf of such Party. A quorum shall consist of the attendance, in person,
by video conference or by conference telephone call, of at least one Operating
Committee representative of each Party. The Operating Committee shall meet on a
regular basis. In addition, meetings shall be held when requested by either
Party within ten days following the day requested by such Party by prior written
notice to the other Party, specifying the reason for such meeting. Each Party
shall use reasonable efforts to assure that at least one of its representatives
is present for all meetings of the Operating Committee.
(2) The initial members of the Operating Committee are
identified on EXHIBIT E hereto. Notwithstanding the foregoing, each Party's
representatives shall serve at the discretion of such Party and may be
substituted for or replaced at any time by such Party upon written notice to the
other Party.
(3) The following matters shall require Operating Committee
Approval:
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(1) the pricing and rate card matters described in
Section 2.1(b) as being subject to Operating Committee Approval;
(2) all matters relating to the creation, marketing and
licensing of data which consists of merged data derived both from Panels inside
of North America and Internet Measurement Panels outside of North America
("Merged Data");
(3) all matters relating to the Parties' possible joint
efforts with respect to any E-Commerce Service;
(4) amendment or modification of the schedule for
establishment and size of Internet Measurement Panels which is set forth in the
License Agreement;
(5) the engaging by ACNSub in any transaction of the
type described in Article IX of the Stockholders Agreement; and
(6) the use of NRI employees to assist ACNSub in its
conduct of the Approved Internet Service.
(4) Only those proposed actions which receive the affirmative
vote of each Party's representatives on the Operating Committee, voting in the
manner specified in Section 3.1(a) above (I.E., unanimous approval), shall be
deemed to have received "Operating Committee Approval" for purposes of this
Agreement. Any matter which has received such favorable vote shall be deemed to
have been "Approved by the Operating Committee."
(5) Any action taken by the Operating Committee shall be: (i)
reduced to writing, (ii) signed by the Parties' representatives who approved
such action in order to evidence their approval, and (iii) made available to
both Parties.
(6) In the event that a deadlock exists for any matter, and
such deadlock continues for a period of 15 days after the date on which the
matter is first submitted to the Operating Committee, the matter shall be
referred to the chief executive officers of ACNielsen and NRI for resolution.
The chief executive officers shall meet within thirty (30) days of such notice.
If the deadlock continues for fifteen (15) days after such meeting, the matter
shall not be deemed to be Approved by the Operating Committee and neither Party
shall have any liability or obligation to the other Party for any failure or
refusal to approve any such matter submitted to the Operating Committee. For
the avoidance of doubt, neither Party shall have the right to invoke the
arbitration procedures in Article IX with respect to any such deadlock.
ARTICLE IV
TECHNOLOGY OWNERSHIP RIGHTS
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4.1. NRI OWNERSHIP RIGHTS.
(7) The Parties acknowledge and agree that, as between NRI and
ACNSub, all right, title and interest (including, without limitation, all
Intellectual Property Rights) in and to the NRI Proprietary Software shall be
and remain vested in NRI, subject, however, in the case of the NRI Proprietary
Software, to the license rights granted to ACNSub under the License Agreement.
(8) NRI represents and warrants to ACNSub that all Third-Party
Software which is currently used in connection with the NRI Proprietary Software
is readily available to ACNSub through normal commercial channels and can be
readily used by ACNSub in the Territory, except as disclosed in Exhibit H. A
list of all such Third-Party Software is set forth on EXHIBIT H hereto. The
foregoing representation and warranty is true and correct as of the Effective
Date and, subject only to Section 4.1(c) below, shall remain true and correct
throughout the term of this Agreement and the License Agreement.
(9) If NRI proposes to acquire license or other rights in
any Third-Party Software which would cause the foregoing representation and
warranty not to be true and correct, it shall provide written notice to
ACNSub. In such event, NRI shall use reasonable efforts to obtain, in North
America and the countries requested by ACNSub in the Territory (other than
any country in the Territory as to which such license would be prohibited by
United States law or regulation), for the benefit of ACNSub, license or other
rights in such Third-Party Software which are substantially similar (in terms
of scope of rights granted and royalties, if any, payable therefor) to the
rights of NRI in such software; provided, however, that ACNSub shall be
responsible for any royalty or other amounts which are payable solely with
respect to any rights which are licensed in favor of ACNSub (and which are
accepted by ACNSub). ACNSub shall pay NRI the reasonable out-of-pocket costs
and expenses related to such negotiations to the extent such expenses are
incurred seeking to obtain rights on behalf of ACNSub.
4.2. ACNSUB OWNERSHIP RIGHTS.
(1) The Parties acknowledge and agree that, as between NRI and
ACNSub, all right, title and interest (including, without limitation, all
Intellectual Property Rights) in and to the ACNielsen Sampling Methodology shall
be and remain vested in ACNSub (or its Affiliates, including ACNielsen).
(2) ACNSub shall provide NRI and its authorized personnel
(including consultants) with access to the ACNielsen Sampling Methodology, for
their internal use only, to the limited extent necessary to enable NRI to work
with ACNSub hereunder. NRI's access and use rights with respect to the
ACNielsen Sampling Methodology shall not apply for any other purpose.
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(3) NRI acknowledges and agrees that the ACNielsen Sampling
Methodology constitutes valuable trade secrets of ACNielsen and that the limited
use and access rights granted to NRI hereunder shall not be construed as a
publication thereof or otherwise be deemed to affect the confidential or trade
secret nature of such technology. NRI shall not (and shall ensure that its
employees do not) (i) download, decompile, reverse engineer, disassemble or
otherwise copy the ACNielsen Sampling Methodology; (ii) resell, rent, lease,
loan, sublicense or otherwise distribute or dispose of, or permit or allow the
distribution or disposal of, or create derivative works based in whole or in
part upon, the ACNielsen Sampling Methodology; (iii) otherwise disclose or
permit the use of or access to the ACNielsen Sampling Methodology to or by any
other Person; (iv) modify, adapt or translate the ACNielsen Sampling
Methodology; or (v) remove any proprietary or copyright legend from any portion
of the ACNielsen Sampling Methodology. ACNielsen shall be a third party
beneficiary of the agreement of NRI set forth in this paragraph.
(4) NRI shall take all reasonable steps necessary to ensure
that its employees, consultants, strategic alliance partners, subcontractors and
agents comply with the restrictions set forth in Section 4.2(c) above (to the
extent that they have been provided access to the ACNielsen Sampling
Methodology), which shall include, at a minimum, making ACNSub and ACNielsen
third-party beneficiaries of all confidentiality covenants entered into between
NRI and any such Persons who obtain access to the ACNielsen Sampling Methodology
from NRI. In any event, NRI shall cooperate with ACNSub in enforcing these
agreements against its employees, consultants, strategic alliance partners,
subcontractors and agents.
(5) All right, title and interest to the Internet usage data
obtained from Internet Measurement Panels in the Territory will be owned by
ACNSub or its wholly-owned subsidiaries, subject to the rights of NRI to
store, access, distribute and use such Internet usage data and to market and
license the Approved Internet Service to customers located in countries
outside the Territory. All right, title and interest in the Internet usage
data obtained from Panels within North America will be owned by NRI, subject
to the rights of ACNSub and its Affiliates to store, access, license,
distribute and use such Internet usage data and to market and license the
Approved Internet Service to customers located in the Territory, and to
customers located within North America designated by the Operating Committee,
as provided in Section 2.1 above.
(6) ACNSub agrees that in the event that it shall liquidate
or dissolve any of its wholly-owned subsidiaries, ownership of any such
Internet usage data owned by such wholly-owned subsidiary shall be
transferred to ACNSub or one of its other wholly-owned subsidiaries.
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ARTICLE V
NET CUSTOMER BILLINGS
5.1. PAYMENT PERCENTAGES.
(7) Except as otherwise provided in this Agreement, all Net
Customer Billings derived from the marketing and licensing of data developed
from the Approved Internet Service shall be allocated to the Parties in the
following respective payment percentages, it being agreed that each Party
shall be entitled to retain 100% of any revenue that it receives from the
licensing or sale of Consulting Services.
(1) Licensing by NRI to customers located in North
America of data from Panels in North America -- 100%
to NRI.
(2) Licensing by NRI to customers located in North
America of data from Internet Measurement Panels
located outside of North America -- 50% to NRI; 50%
to ACNSub.
(3) Licensing by ACNSub to customers located in North
America of data from Panels in North America -- 65%
to NRI; 35% to ACNSub.
(4) Licensing by ACNSub to customers located outside of
North America of data from Panels in North America -- 50% to
NRI; 50% to ACNSub.
(5) Licensing by ACNSub to customers located outside of
North America of data from Internet Measurement
Panels outside of North America -- 100% to ACNSub.
(6) Licensing by either NRI or ACNSub of Merged Data -- to be
considered by the Operating Committee in accordance with Section
3.1(c)(ii).
(8) Discounts from rate card prices on sales of combined data
from Panels located outside of North America and Panels located in North America
shall be attributed to the parties based upon the relative proportions of Net
Customer Billings which each party would have received at full list price. For
the avoidance of doubt, an example of such a calculation is set forth on
EXHIBIT I.
(9) As used herein, the term "Net Customer Billings" shall mean
the gross amount billed to each customer of the Approved Internet Service as
reflected in invoices issued by the applicable Party or a wholly-owned
subsidiary to such customer, whether pursuant to contracts
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with such customers or otherwise, less only sales, excise or value added
taxes included in such invoice to the extent separately reflected thereon.
5.2. PAYMENTS. Within ten days after the end of each calendar month
during the term of this Agreement, each Party shall prepare and submit to the
other Party a report setting forth a detailed summary of (i) all licenses
made by such Party (the "Selling Party") to customers of the Approved
Internet Service during such calendar month with respect to which the other
Party is entitled to a share of Net Customer Billings, (ii) the length of the
licenses and (iii) the total amount billed to such customers during such
calendar month. Not later than fifteen (15) days after the end of the
calendar quarter, the Selling Party shall pay to the other Party an amount
equal to the product obtained by multiplying the payment percentage
specified in Section 5.1 for such customer times the total amount billed to
such customer during such calendar quarter (subject to subsequent adjustment
for amounts that prove to be uncollectible). Each party shall pay interest
at the prime rate on any late payments to the other party. For the avoidance
of doubt, the other Party shall have the right to receive the full amount of
such payment notwithstanding that the Selling Party may be obligated to defer
the recognition of a portion of the Net Customer Billings derived from such
sale or subscription until a later date under GAAP.
5.3. RIGHT OF INSPECTION. Each Party agrees to keep accurate books
of account and records covering all transactions relating to sales of and
subscriptions to the Approved Internet Service and the computation of Net
Customer Billings hereunder. Each Party and its duly authorized
representatives shall have the right, after reasonable notice and during
regular business hours, to examine such books of account and records and all
other documents and materials in the other party's possession or under its
control with respect to the Approved Internet Service and shall have free and
full access thereto for such purposes and for the purpose of making extracts
therefrom. All such books of account and records shall be kept available for
at least two (2) years after the expiration or termination of this Agreement.
In the event that either Party or its duly authorized representative shall
discover a discrepancy of seven and one-half percent (7.5%) or more pursuant
to any such examination, the other party shall pay to it the reasonable cost
of such examination.
ARTICLE VI
TRADEMARKS; LICENSES
6.1. TRADEMARKS.
(1) LICENSES.
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(1) During the term of this Agreement, NRI hereby grants
to ACNSub, and ACNSub hereby accepts from NRI, a nonexclusive, nontransferable,
royalty-free license, with the right to sublicense (except into such
jurisdictions where the grant of the sublicense would, on account of the laws of
such jurisdiction, substantially impair NRI's rights in the NRI Trademarks) to
ACNSub's wholly-owned subsidiaries (on the same terms and conditions, including
specifically scope of use, as set out herein with respect to the license to
ACNSub) to use the NRI Trademarks in the Territory and, as may be authorized by
the Operating Committee, outside the Territory, in accordance with the terms of
this Agreement solely to conduct the Approved Internet Service. NRI shall be a
third-party beneficiary of each sublicense by ACNSub, but solely for the purpose
of permitting NRI to enforce the sublicense if ACNSub fails to do so within a
reasonable time. NRI shall be entitled to approve each sublicense, but solely
for the purpose of assuring itself that the sublicense complies with the terms
of this Article VI as it applies to sublicenses by ACNSub. Except in the case
of noncompliance, NRI shall approve the sublicense promptly (and shall be deemed
to have approved it ten (10) days after delivery of the sublicense to it if it
does not respond to ACNSub within such time period). ACNSub will use the NRI
Trademarks to conduct the Approved Internet Service, and ACNSub agrees to use
the NRI Trademarks in conjunction with the Nielsen//NetRatings co-brand
designation (the "Nielsen//NetRatings CBD") in connection with the conduct of
the Approved Internet Service (such use being a "Permitted Nielsen//NetRatings
CBD Use").
(2) During the term of this Agreement, ACNSub hereby
grants to NRI, and NRI hereby accepts from ACNSub, a nonexclusive,
nontransferable, royalty-free license, without the right to sublicense, to use
the "Nielsen" trademark (the "Nielsen Trademark") as part of the
Nielsen//NetRatings CBD in North America in accordance with the terms of this
Agreement solely to conduct the Approved Internet Service. NRI agrees to use
the Nielsen Trademark in conjunction with the Nielsen//NetRatings CBD only in
connection with the conduct of the Approved Internet Service (such use also
being a Permitted Nielsen//NetRatings CBD Use).
(2) QUALITY CONTROL.
(1) The nature and quality of the Approved Internet
Services supplied in connection with the Nielsen//NetRatings CBD shall conform
to the standards of the Approved Internet Service on the Effective Date as
modified from time to time by the Operating Committee. NRI will cooperate with
ACNSub in facilitating its monitoring and control of the nature and quality of
such services and will supply ACNSub with specimens of use of the
Nielsen//NetRatings CBD, including all advertising, marketing and promotional
materials, upon request. In the event that NRI's use of the
Nielsen//NetRatings CBD does not comply with the Operating Committee's quality
standards, NRI shall modify its use of the Nielsen//NetRatings
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CBD and shall submit corrected specimens of use to ACNSub within thirty
(30) days of notice by ACNSub.
(2) The nature and quality of the Approved Internet
Services marketed by ACNSub in connection with the NRI Trademarks shall conform
to the standards of the Approved Internet Service on the Effective Date as
modified from time to time by the Operating Committee. ACNSub will cooperate
with NRI in facilitating its monitoring and control of the nature and quality of
such services and will supply NRI with specimens of use of the NRI Trademarks,
including all advertising, marketing and promotional materials, upon request.
In the event that ACNSub's use of the NRI Trademarks does not comply with the
Operating Committee's quality control standards, ACNSub shall modify its use of
the NRI Trademarks and shall submit corrected specimens of use to NRI within
thirty (30) days of notice by NRI.
(3) CERTAIN ACKNOWLEDGMENTS.
(1) NRI acknowledges and agrees that ACNSub has the
right to grant NRI a license to use the "Nielsen" trademark (the "Nielsen
Trademark") as part of the Nielsen//NetRatings CBD as provided in this
Agreement. Except as prohibited by law, NRI agrees that it will not do anything
inconsistent with such limited license, either during the term of this Agreement
or thereafter. NRI agrees that the use of the Nielsen Trademark by NRI shall
inure to the benefit of and be solely on behalf of ACNSub, ACNielsen and CZT/ACN
Trademarks, L.L.C. NRI acknowledges that its utilization of the Nielsen
Trademark as provided herein will not create or confer any right, title or
interest in any other trademark or service mark of ACNSub in NRI.
(2) ACNSub acknowledges and agrees that NRI is the sole
and exclusive owner of the NRI Trademarks. Except as prohibited by law, ACNSub
agrees that it will not do anything inconsistent with such ownership either
during the term of this Agreement or thereafter. ACNSub agrees that use of the
NRI Trademarks by ACNSub shall inure to the benefit of and be solely on behalf
of NRI. ACNSub acknowledges that its utilization of the NRI Trademarks as
provided herein will not create or confer any right, title or interest in the
NRI Trademarks in ACNSub.
(4) RESTRICTIONS ON USE.
(1) NRI agrees that it will not adopt or use as part or
all of any corporate name, trade name, trademark, service mark or certification
mark, any trademark or other mark confusingly similar to the Nielsen//NetRatings
CBD except to the extent permitted under the NMR Agreements. NRI shall use the
Nielsen//NetRatings CBD so that it creates a
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separate and distinct impression from any other trademark that may be used by
NRI, except in connection with the Permitted Nielsen//NetRatings CBD Uses
pursuant to the standards set forth in Section 6.1(b). NRI agrees that it
will not contest any ACNSub registration or application for any of the ACNSub
Trademarks. NRI shall comply with all applicable laws and regulations
pertaining to the proper use and designation of the Nielsen//NetRatings CBD.
(2) ACNSub agrees that it will not adopt or use as part
or all of any corporate name, trade name, trademark, service mark or
certification mark, any trademark or other mark confusingly similar to the NRI
Trademarks. ACNSub shall use the NRI Trademarks so that they create a separate
and distinct impression from any other trademark that may be used by ACNSub,
except for the use of the combined words "Nielsen//NetRatings" in connection
with the Permitted Nielsen//NetRatings CBD Uses pursuant to the standards set
forth in Section 6.1(b). ACNSub agrees that it will not contest any NRI
registration or application for any of the NRI Trademarks. ACNSub shall comply
with all applicable laws and regulations pertaining to the proper use and
designation of the NRI Trademarks.
(5) NO REGISTRATION.
(1) NRI agrees not to apply to register the
Nielsen//NetRatings mark or any of the ACNSub Trademarks, or any words or
combination of words containing any ACNSub Trademarks (including, without
limitation, "Nielsen//NetRatings") or any confusingly similar designation,
anywhere in the world. If any application for registration is or has been filed
by or on behalf of NRI in any country and relates to any mark which, in the
reasonable opinion of ACNSub, is confusingly similar, deceptive or misleading
with respect to, or dilutes or in any way materially damages, any of the
foregoing Trademarks, NRI shall, at ACNSub's request, abandon all use of such
mark and withdraw any registration or application for registration thereof.
Nothing in this Section 6.1(e)(i) shall require NRI to abandon or withdraw any
of the existing NRI Trademarks listed on EXHIBIT F.
(2) ACNSub agrees not to apply to register any of the
NRI Trademarks or any words or combination of words containing the NRI
Trademarks (including, without limitation, "Nielsen//NetRatings") or any
confusingly similar designation, anywhere in the world. If any application for
registration is or has been filed by or on behalf of ACNSub in any country and
relates to any mark which, in the reasonable opinion of NRI, is confusingly
similar, deceptive or misleading with respect to, or dilutes or in any way
materially damages, any of the NRI Trademarks, ACNSub shall, at NRI's request,
abandon all use of such mark and withdraw any registration or application for
registration thereof. Nothing in this Section 6.1(e)(ii) shall require ACNSub
to abandon or withdraw any of the existing ACNSub Trademarks listed on
EXHIBIT F.
(6) CERTAIN REPRESENTATION AND WARRANTIES.
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(1) NRI owns all right, title and interest in the NRI
Trademarks in the United States free and clear of any liens, pledges or other
encumbrances. NRI is the sole owner of, or applicant for, all registrations and
applications for registrations of the NRI Trademarks with any governmental or
other authority in the United States, all of which are valid and in full force
and effect. To the knowledge of NRI, none of the NRI Trademarks infringes the
trademarks of any Third Party. There are no pending or threatened litigations,
claims or challenges relating to the NRI Trademarks.
(2) ACNSub has the right to grant NRI a license to use
the Nielsen mark as part of the Nielsen//NetRatings CBD as provided in this
Agreement, free and clear of any liens, pledges or other encumbrances in the
following jurisdictions: the United States and Canada.
1.59. ACKNOWLEDGMENTS.
(1) Each Party acknowledges that its respective trademarks will
be used under these licenses as part of the combined words "Nielsen//NetRatings"
solely within the Permitted Nielsen//NetRatings CBD Uses under the standards set
forth in Section 6.1(b). The intent of the Parties is not to create a
jointly-owned trademark or service mark with respect to "Nielsen//NetRatings."
Neither Party shall claim any ownership interest in the combined words in
"Nielsen//NetRatings," and neither Party shall register the combined words
"Nielsen//NetRatings" as a trademark in any jurisdiction.
(2) NRI will cooperate with ACNSub to develop appropriate
references to ACNielsen on the Nielsen//NetRatings WEB Site, and/or any other
WEB Sites which may promote the Approved Internet Service.
1.60. INFRINGEMENT; ACTION.
(1) ACNSub (together with ACNielsen and CZT/ACN Trademarks
L.L.C.) shall have the sole and exclusive right to commence or prosecute any
claims or suits for infringement or any other cause of action or claim for
relief for unauthorized use of the Nielsen//NetRatings CBD, insofar as the same
relates to the Nielsen Trademark, and to choose counsel in connection with such
claim or suit. NRI shall assist ACNSub (and ACNielsen and CZT/ACN Trademarks
L.L.C.) to maintain and protect their rights in the Nielsen//NetRatings CBD,
insofar as the same relates to the Nielsen Trademark. ACNSub shall bear the
cost of the attorneys' fees, costs and expenses in connection with such claim or
suit. NRI shall notify ACNSub in writing of any infringements or unauthorized
uses of the Nielsen//NetRatings CBD, insofar as the same relates to the Nielsen
Trademark, that may come to NRI's attention, and
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ACNSub (together with ACNielsen and CZT/ACN Trademarks L.L.C.) shall have the
sole and exclusive right to determine in its discretion whether any action
shall be taken on account of such infringements or unauthorized uses.
(2) NRI shall have the sole and exclusive right to commence or
prosecute any claims or suits for infringement or any other cause of action or
claim for relief for unauthorized use of the Nielsen//NetRatings CBD, insofar as
the same relates to the NRI Trademarks, and to choose counsel in connection with
such claim or suit. ACNSub shall assist NRI to maintain and protect its rights
in the Nielsen//NetRatings CBD, insofar as the same relates to the NRI
Trademarks. NRI shall bear the cost of the attorneys' fees, costs and expenses
in connection with such claim or suit. ACNSub shall notify NRI in writing of
any infringements or unauthorized uses of the Nielsen//NetRatings CBD, insofar
as the same relates to the NRI Trademarks, that may come to ACNSub's attention,
and NRI shall have the sole and exclusive right to determine in its discretion
whether any action shall be taken on account of such infringements or
unauthorized uses.
(3) The Parties shall cooperate with each other in connection
with the commencement and prosecution of any claims or suits for infringement or
any other cause of action or claim for relief for unauthorized use of the
Nielsen//NetRatings CBD.
ARTICLE VII
TERMINATION
7.1. TERMINATION. This Agreement may be terminated as follows:
(4) by the mutual written consent of the Parties; or
(5) by either Party upon a breach of any provision of this
Agreement, which breach remains uncured for thirty (30) days after written
notice thereof to such other Party, and as a result of which breach the
non-breaching Party will be unable to substantially realize the benefits that
it would have realized from this Agreement and the Ancillary Agreements
absent such breach; or
(6) by either Party upon the effective date of the termination
of an Ancillary Agreement by such Party; or
(7) by either Party if the other Party:
(1) makes an assignment for the benefit of creditors;
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(2) admits in writing its inability to pay its debts as
they become due;
(3) distributes to its creditors any composition,
extension or similar kind of agreement which purpose is to reach an out of court
settlement with its creditors;
(4) causes or consents to the appointment of a receiver,
trustee, liquidator or similar officer for all or any material portion of its
property;
(5) files in any court, pursuant to any statute of the
United States or any state, any petition in any bankruptcy, reorganization,
composition, extension, arrangement or insolvency proceeding;
(6) shall be dissolved or fails to maintain its
corporate existence;
(7) has its ability to conduct business suspended or
terminated;
(8) becomes insolvent;
(9) makes or consents to a notice of intended bulk
transfer of its assets;
(10) convenes a meeting of creditors to restructure its
debts;
(11) takes any corporate or other action for the purpose
of effectuating any of the foregoing.
(12) has a petition filed against it in any court,
pursuant to any statute of the United States or any state, any bankruptcy,
reorganization, composition, extension, arrangement or insolvency proceeding,
and such court either:
(1) enters an order for relief;
(2) approves the petition;
(3) assumes jurisdiction of the subject matter, or
(4) fails to dismiss such proceeding within 45 days
after the institution thereof.
(13) has any proceeding commenced against it or a
receiver, trustee, liquidator or similar officer appointed to administer and/or
liquidate all or any portion of its
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property and such appointment is not vacated or set aside within 45 days
after the appointment of such receiver, trustee, liquidator or similar
officer.
1.61. TERMINATION DISFAVORED. It is the intention of the Parties that
this Agreement not be terminated except in the limited circumstances set forth
above and that any breach by either Party of its obligations under this
Agreement shall be redressed by the dispute resolution mechanisms set forth in
this Agreement and other appropriate remedies at equity or law.
1.62. EFFECT OF TERMINATION: In the event of any termination of this
Agreement (the date of such termination is referred to as the "Termination
Date"):
(1) by NRI pursuant to Section 7.1(b), (c) or (d) above:
(1) NRI shall have the right, for a period of one year
from the Termination Date, (A) to access and to use the ACN Sampling Methodology
reasonably necessary to continue to provide the Approved Internet Service
(including, without limitation, maintaining Internet Measurement Panels); and
(B) to continue to use the Nielsen Trademark pursuant to the license granted in
Article VI in accordance with the quality control provisions in effect on the
Termination Date; provided, however, that NRI may not represent to potential
Panel Members that it is ACNSub or an Affiliate or agent of ACNSub or any of
ACNSub's Affiliates;
(2) The license granted to ACNSub pursuant to Article VI
to use the NRI Trademarks shall terminate as of the Termination Date;
(3) ACNSub shall be obligated, upon the written request
of NRI, (A) for a period of up to one year from the Termination Date, to provide
services relating to the maintenance of any Internet Measurement Panels in
existence on the Termination Date, including technical support services, at the
cost of providing such services and (B) assigning to NRI, to the extent
assignable, any contracts between ACNSub or its wholly-owned subsidiary and a
Third Party relating to the provision of the Approved Internet Service;
(4) If NRI is providing any processing of data for
ACNSub, NRI shall be obligated to continue to perform any obligation which it
may have under written customer contracts which had been entered into by ACNSub
as of the Termination Date; and
(5) ACNSub shall pay to NRI any Net Customer Billings to
which NRI would have been entitled under, and in accordance with the payment
terms of, Article V above.
(2) by ACNSub pursuant to Section 7.1(b), (c) or (d) above:
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(1) ACNSub shall have the right, for a period of one
year from the Termination Date, (1) to continue to use the NRI Trademarks
pursuant to the license granted in Article VI and subject to the quality control
standards in effect as of the Termination Date and (2) to continue to distribute
the Collection Software and continue to use the Back End Software in connection
with the provision of the Approved Internet Service and (3) to continued
performance by NRI of NRI's obligations under the License Agreement and the Data
Processing Agreement;
(2) The license granted to NRI pursuant to Article VI to
use the Nielsen Trademark shall terminate as of the Termination Date;
(3) If NRI is providing any processing of data for
ACNSub, NRI shall be obligated to continue to perform under written customer
contracts which had been entered into by ACNSub as of the Termination Date;
(4) If NRI is providing any processing of data for
ACNSub, NRI shall be obligated to perform under written customer contracts
entered into that are executed between ACNSub and a Third Party during the
one-year period immediately after the Termination Date, under written
customer contracts containing terms substantially the same as the terms of
the standard customer contracts as of the Termination Date, until the end of
such one-year period; and
(5) NRI shall pay to ACNSub any portion of Net Customer
Billings which ACNSub would have been entitled under, and on payment terms set
forth in Article V above.
1.63. ADDITIONAL REMEDIES ON TERMINATION. To the extent not
inconsistent with the foregoing, in the event of any termination of this
Agreement, the Party entitled to terminate shall be entitled to any and all
legal and equitable remedies to which it may be entitled under applicable law.
ARTICLE VIII
DISPUTE RESOLUTION
8.1. GENERAL DISPUTE PRINCIPLES.
(1) All disputes between or among the parties and/or any of
their Affiliates under this Agreement shall be settled, if possible, through
good faith negotiations between the
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relevant parties. In the event such disputes cannot be so resolved, such
disputes shall be resolved as provided in Section 8.2.
(2) If either Party or any of its Affiliates is subject to a
claim, demand, action or proceeding by a Third Party and is permitted by law or
arbitral rules to join another party to such proceeding, this Article VIII shall
not prevent such joinder. This Article VIII shall also not prevent either Party
or any such Affiliate from pursuing any legal action against a Third Party.
8.2. ARBITRATION OF OTHER DISPUTES.
(1) The Parties shall submit any controversy or claim arising
out of, relating to or in connection with this Agreement, or the breach hereof
or thereof ("Demand for Arbitration"), to arbitration administered by the
American Arbitration Association ("AAA") in accordance with its Commercial
Arbitration Rules then in effect (collectively, "AAA Rules") and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
(2) The place of arbitration shall be San Diego, California.
(3) The Parties shall attempt, by agreement, to nominate a sole
arbitrator for confirmation by the AAA. If the Parties fail to so nominate a
sole arbitrator within 30 days from the date when the Demand for Arbitration has
been communicated by the initiating Party, the arbitrator shall be appointed by
the AAA in accordance with the AAA Rules. For purposes of this Section, the
"commencement of the arbitration proceeding" shall be deemed to be the date upon
which the Demand for Arbitration has been delivered to the Parties in accordance
with this Section 8.2. A hearing on the matter in dispute shall commence within
30 days following selection of the arbitrator, and the decision of the
arbitrator shall be rendered no later than 60 days after commencement of such
hearing.
(4) If a Demand for Arbitration includes any issue, controversy
or claim relating to or allegedly relating to any patent matter including, but
without limitation, any issue relating to the existence, validity, infringement,
duration or enforceability of any patent, then the arbitrator with respect to
such patent-related controversy or claim (and only such controversy or claim)
shall have the following credentials: Such arbitrator shall be (i) an attorney
registered to practice before the U.S. Patent and Trademark Office (ii) whose
current area of practice is primarily related to patent matters (or, if such
person is retired, whose practice was primarily so related), and (iii) who has
been practicing in such area for at least the last ten (10) years, and (iv) who
has acted as an arbitrator or mediator of a patent-related dispute on at least
two (2) prior occasions during the preceding ten (10) years.
(5) An award rendered in connection with an arbitration
pursuant to this Section shall be final and binding upon the Parties, and the
Parties agree and consent that the
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arbitral award shall be conclusive proof of the validity of the determinations
of the arbitrator set forth in the award and any judgment upon such an award
may be entered and enforced in any court of competent jurisdiction.
(6) The Parties agree that the award of the arbitral tribunal
will be the sole and exclusive remedy between them regarding any and all claims
and counterclaims between them with respect to the subject matter of the
arbitrated dispute. The Parties hereby waive all IN PERSONAM jurisdictional
defenses in connection with any arbitration hereunder or the enforcement of an
order or award rendered pursuant thereto (assuming that the terms and conditions
of this arbitration clause have been complied with).
(7) The arbitrator shall issue a written explanation of the
reasons for the award and a full statement of the facts as found and the rules
of law applied in reaching his decision to both Parties. The arbitrator shall
apportion to each Party all costs (including attorneys' and witness fees, if
any) incurred in conducting the arbitration in accordance with what the
arbitrator deems just and equitable under the circumstances. Any provisional
remedy which would be available to a court of law shall be available from the
arbitrator pending arbitration of the dispute. Either Party may make an
application to the arbitrator seeking injunctive or other interim relief, and
the arbitrator may take whatever interim measures he deems necessary in respect
of the subject matter of the dispute, including measures to maintain the status
quo until such time as the arbitration award is rendered or the controversy is
otherwise resolved. The arbitrator shall only have the authority to award any
remedy or relief (except ex parte relief) that a Superior Court of the State of
California could order or grant, including, without limitation, specific
performance of any obligation created under this Agreement, the issuance of an
injunction, or the imposition of sanctions for abuse or frustration of the
arbitration process, but specifically excluding punitive damages.
(8) Either Party may file an application in any proper court
for a provisional remedy in connection with an arbitrable controversy, but only
upon the ground that the award to which the application may be entitled may be
rendered ineffectual without provisional relief. The Parties may also commence
legal action in lieu of any arbitration under this Section 8.2 in connection
with any Third Party litigation proceedings.
(9) For purposes of any suit, action or legal proceeding
permitted under this Article VIII, each Party (a) hereby irrevocably submits
itself to and consents to the non-exclusive jurisdiction of the courts of the
State of California or, if it has or can require jurisdiction, United States
District Court for the Southern District of California for the purposes of any
suit, action or legal proceeding in connection with this Agreement including to
enforce an arbitral resolution, settlement, order or award made pursuant to this
Agreement (including pursuant to the U.S. Arbitration Act or otherwise), and
(b) to the extent permitted by applicable law, hereby waives, and agrees not to
assert, by way of motion, as a defense, or otherwise, in any such suit, action
or
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legal proceeding pending in such event, any claim that it is not personally
subject to the jurisdiction of such court, that the suit, action or legal
proceeding is brought in an inconvenient forum or that the venue of the suit,
action or legal proceeding is improper. Each Party hereby agrees to the
entry of an order to enforce any resolution, settlement, order or award made
pursuant to this Section by the courts of the State of California or, if it
has or can require jurisdiction, the United States District Court for the
Southern District of California and in connection therewith hereby waives,
and agrees not to assert by way of motion, as a defense, or otherwise, any
claim that such resolution, settlement, order or award is inconsistent with
or violative of the laws or public policy of the laws of the State of
California or any other jurisdiction.
ARTICLE IX
CONFIDENTIALITY
9.1. CONFIDENTIAL INFORMATION. For the purposes of this Agreement,
"Confidential Information" shall mean any information delivered by one party
("Disclosing Party") to the other party ("Receiving Party") which the Receiving
Party knows or has reason to know is considered confidential by the Disclosing
Party. The ACNielsen Sampling Methodology shall be deemed to be "Confidential
Information", subject to the provisions of Section 9.2 below. The Receiving
Party agrees to take precautions to prevent any unauthorized disclosure or use
of Confidential Information consistent with precautions used to protect the
Receiving Party's own confidential information, but in no event less than
reasonable care. Except as provided below, the Receiving Party agrees to treat
the Confidential Information as confidential and shall not disclose the
Confidential Information to any Person or Entity without the Disclosing Party's
prior written consent. The Receiving Party may only disclose the Confidential
Information to the Receiving Party's employees or contractors who reasonably
require access to such Confidential Information to perform obligations under
this Agreement or as required by law or legal process. The Receiving Party
shall take all appropriate steps to ensure that its employees and contractors
who are permitted access to the Confidential Information agree to act in
accordance with the obligations of confidentiality imposed by this Agreement.
Should the Receiving Party be faced with legal action to disclose Confidential
Information received under this Agreement, the Receiving Party shall promptly
notify the Disclosing Party and, upon the Disclosing Party's request, shall
reasonably cooperate with the Disclosing Party in contesting such disclosures.
The obligations imposed by this Article IX shall survive any termination of this
Agreement.
9.2. NON-CONFIDENTIAL INFORMATION. The obligations set forth in
Section 9.1 shall not apply to any particular portion of any Confidential
Information that: (i) now or subsequently becomes generally known or
available through no act or omission of the Receiving Party; (ii) is known to
the Receiving Party at the time of receipt of the same from the Disclosing
Party; (iii) is provided by the Disclosing Party to a Third Party without
restriction on disclosure; (iv) is
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subsequently rightfully provided to the Receiving Party by a Third Party
without restriction on disclosure; or (v) is independently developed by the
Receiving Party, as can be demonstrated from the Receiving Party's business
records and documentation, provided the person or persons developing the same
had not had access to the Confidential Information of the Disclosing Party
prior to such independent development.
ARTICLE X
MISCELLANEOUS
10.1. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of New York without regard to choice of law provisions thereof, and by
the General Corporation Law of the State of Delaware to the extent applicable to
any corporate action related to NRI or ACNSub.
10.2. SUCCESSORS AND ASSIGNS. Neither this Agreement nor any rights or
obligations hereunder may be assigned by either Party without the prior written
consent of the other Party. The provisions of this Agreement shall inure to the
benefit of, and be binding upon, the permitted successors, assigns, heirs,
executors and administrators of the Parties to this Agreement.
10.3. TRANSACTIONS WITH AFFILIATES. Except as provided in Section 2.2
(c), each Party agrees that any agreements or transactions that it may enter
into or engage in with any Affiliate with respect to the Approved Internet
Service shall be on an arms-length basis and on terms not materially less
favorable to it than it would have obtained had it entered into or engaged in
such agreement or transaction with a Third Party.
10.4. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Ancillary
Agreements constitute the full and entire agreement between the Parties with
respect to the subject matter hereof and thereof, and supersede all prior oral
and written agreements and understandings between the Parties. Except as
expressly provided in this Agreement, neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the Party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
10.5. NOTICES, ETC. All notices and other communications hereunder
shall be deemed given if given in writing and delivered by hand, prepaid express
or courier delivery service or by facsimile transmission or mailed by registered
or certified mail (return receipt requested), facsimile or postage fees prepaid,
to the Party to receive the same at the respective addresses set forth below (or
at such other address as may from time to time be designated by such Party in
accordance with this Section 10.5):
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(1) If to ACNSub:
AC Nielsen Corporation
177 Broad Street
Stamford, Connecticut 06901
Telephone: (203) 961-3320
Facsimile: (203) 961-3179
Attention: General Counsel
With copies to:
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022-3598
Telephone: (212) 836-7061
Facsimile: (212) 836-8689
Attention: Emanuel S. Cherney, Esq.
(2) If to NRI:
NetRatings, Inc.
830 Hillview Court
Milpitas, California 95035
Telephone: (408) 957-0699
Facsimile: (408) 957-0487
Attention: President
With copies to:
Gray Cary Ware & Freidenrich
400 Hamilton Avenue
Palo Alto, California 94301-1825
Telephone: (650) 833-2266
Facsimile: (650) 327-3699
Attention: Mark Radcliffe, Esq.
All such notices and communications hereunder shall for all purposes of
this Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of United States mail, addressed and postage prepaid as aforesaid.
10.6. DELAYS OR OMISSIONS. Except as expressly provided in this
Agreement, no delay or omission to exercise any right, power or remedy accruing
to a Party, upon any breach or default of the other Party under this Agreement,
shall impair any such right, power or remedy of such Party nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of a Party of any
breach or default under this Agreement, or any waiver on the part of such Party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
10.7. PUBLICITY. Neither Party (nor such Party's Affiliates) shall
issue any press release disclosing the terms of, or relating to, this Agreement
or any Ancillary Agreement, without the prior written consent of the other
Party; provided, however, that neither Party or its Affiliates shall be
prevented from complying with any duty of disclosure it may have pursuant to
Applicable Laws. Such disclosing Party shall use its best efforts to consult
with the other Party regarding the issuance of any such press release, or with
regard to any public statement disclosing the terms of this Agreement or any
Ancillary Agreement and shall use its best efforts
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to obtain confidential treatment for any Confidential Information where such
press release or other public statement is required to be made by Applicable
Law.
10.8. EXPENSES. Each of the Parties shall bear all legal, accounting
and other transaction expenses incurred by it in connection with the
negotiation, execution, delivery and performance of this Agreement.
10.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
10.10. SEVERABILITY. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
10.11. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
NETRATINGS, INC.
By:
----------------------------
Name:
---------------------------
Title:
--------------------------
ACNIELSEN ERATINGS.COM
By:
----------------------------
Name:
---------------------------
Title:
--------------------------
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