Post-Closing Agreement - ACNielsen Corp., NetRatings Inc. and ACNielsen eRatings.com
POST-CLOSING AGREEMENT
This Post-Closing Agreement (this "Agreement") is made as of May 7, 2002
(the "Effective Date") by and among ACNielsen Corporation, a Delaware
corporation with a place of business at 177 Broad Street, Stamford, Connecticut
06901 ("ACNielsen"), 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,
"eRatings" and, collectively with ACNielsen and NRI, the "Parties").
In consideration of the mutual covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS
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For the purposes of this Agreement, the following terms shall have the
meanings indicated.
1.1 "ACNielsen Sampling Methodology" shall mean ACNielsen's proprietary
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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, 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.
1.2 "Affiliate(s)" shall mean a Person that controls, is controlled by or
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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. For purposes of this Agreement, ACNielsen is
not considered an Affiliate of NRI and NRI is not considered an Affiliate of
ACNielsen.
1.3 "Applicable Laws" shall mean all foreign, federal, state and local
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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.
1.4 "Consulting Services" shall mean services based on custom or ad hoc
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analysis of data derived from audience, advertising and viewing activities on
the Internet.
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1.5 "E-Commerce Services" shall mean the business of tracking or monitoring
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purchases, sales and other transactions on the Internet.
1.6 "Entity" or "Entities" shall mean any general partnership, limited
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partnership, limited liability company, corporation, joint venture, trust,
business trust, cooperative or association, or any foreign trust or foreign
business organization.
1.7 "eRatings Territory" shall mean the world except the United States and
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Canada.
1.8 "eRatings Trademarks" shall mean the trademarks, logos and trade names
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of eRatings listed on Exhibit A.
1.9 "Intellectual Property Rights" shall mean all worldwide right, title
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and interest of a Person in, to and under any and all: (i) United States or
foreign patents and pending patent applications therefore, including the right
to file new and additional patent applications based thereon, including
provisionals, continuations, continuations-in-part, reissues and reexaminations;
(ii) copyrights; and (iii) trade secrets, know-how, processes, methods,
engineering data and technical information.
1.10 "Internet Service" shall mean the business of tracking or measuring
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audience, advertising and viewing activities on the Internet, compiling data
from such measurement, licensing such data to third parties and selling
Consulting Services but shall not include E-Commerce Services other than
E-Commerce Services offered by eRatings on October 23, 2001.
1.11 "Joint Venture Entities" - "Existing Joint Ventures" shall mean
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Entities with which as of the Effective Date, eRatings has entered into the
Operating Agreements set forth on Exhibit B and, "Future Joint Venture Entities"
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shall mean Entities with which, after the Effective Date, NRI enters into
agreements, to assist in providing the Internet Services in the eRatings
Territory.
1.12 "Nielsen Trademark" shall have the meaning set forth in Section
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3.1(a).
1.13 "North America" shall mean and include the United States and Canada.
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1.14 "NRI Territory" shall mean North America.
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1.15 "NRI Trademarks" shall mean the trademarks, logos and trade names of
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NRI listed on Exhibit A.
1.16 "Person" shall mean any individual or Entity, and the heirs,
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executors, administrators, legal representatives, successors and assigns of the
"Person" when the context so permits.
1.17 "Third Party" shall mean, with respect to a Party, any Person that is
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not an Affiliate of such Party.
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ARTICLE II
ACNIELSEN SAMPLING METHODOLOGY
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2.1 ACNielsen Sampling Methodology ACNielsen hereby grants to NRI a
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fully-paid up, non-assignable (except as provided in Section 7.2) right to use
and sublicense the ACNielsen Sampling Methodology in the eRatings Territory
during the term of this Agreement in connection with the Internet Service.
During the term of the Agreement, ACNielsen agrees not to provide Internet
Service in the eRatings Territory or license the ACNielsen Sampling Methodology
in the eRatings Territory to Entities to provide the Internet Service. NRI has
the right to sublicense the ACNielsen Sampling Methodology only to NRI's wholly
owned subsidiaries and Existing Joint Venture Entities on the same terms and
conditions, including specific scope of use as set forth herein for NRI and to
Future Joint Venture Entities with the prior written consent of ACNielsen, not
to be unreasonably withheld, on the same terms and conditions, including
specific scope of use as set forth herein for NRI. ACNielsen shall be a
third-party beneficiary of each sublicense by NRI, but solely for the purpose of
permitting ACNielsen to enforce the sublicense if NRI fails to do so within a
reasonable time. ACNielsen shall be entitled to approve each sublicense to a
Future Joint Venture Entity prior to its effectiveness (and shall be deemed to
have approved it thirty (30) days after delivery of the sublicense to it if it
does not respond to NRI within such time period).
2.2 Other Technologies. Except for the rights set forth in this Agreement,
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NRI is not acquiring any rights to any software or other proprietary
technologies owned or licensed by ACNielsen or its Affiliates as of the
Effective Date or thereafter.
2.3 Ownership Rights.
(a) ACNielsen and NRI acknowledge and agree that, as between ACNielsen
and eRatings, 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 ACNielsen (or its Affiliates).
(b) ACNielsen shall provide NRI and its authorized personnel
(including consultants) with access to the ACNielsen Sampling Methodology, for
the uses licensed hereunder, to the limited extent necessary to enable NRI to
provide its Internet Service. NRI's access and use rights with respect to the
ACNielsen Sampling Methodology shall not apply for any other purpose.
(c) 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
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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.
(d) 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 2.3 (c) above (to the extent
that they have been provided access to the ACNielsen Sampling Methodology),
which shall include, at a minimum, making ACNielsen a third-party beneficiary 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 ACNielsen in enforcing these agreements against its
employees, consultants, strategic alliance partners, subcontractors and agents.
(e) As between ACNielsen and NRI, its Affiliates, eRatings and the
Joint Venture Entities, all right, title and interest in Internet usage data
obtained by using the ACNielsen Sampling Methodology shall be owned by NRI or
Entities designated by NRI.
ARTICLE III
TRADEMARK LICENSES
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3.1 Trademark Licenses.
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(a) NRI License. During the term of this Agreement, ACNielsen hereby
grants to NRI, and NRI hereby accepts from ACNielsen, a nonexclusive,
nontransferable (except as provided in Section 7.2), royalty-free license, with
the limited right to sublicense as provided below, to use the "Nielsen"
trademark (the "Nielsen Trademark") in conjunction with the Nielsen//NetRatings
cobrand designation (the "Nielsen//NetRatings CBD") in the eRatings Territory in
accordance with the terms of this Agreement solely to conduct its Internet
Service. During the Term of this Agreement, ACNielsen agrees not to use the
Nielsen Trademark to provide the Internet Services in the eRatings Territory, or
license the Nielsen Trademark, to Entities to provide Internet Services in the
eRatings Territory. NRI has the right to sublicense the Nielsen Trademark only
to NRI's wholly owned subsidiaries and Existing Joint Venture Entities on the
same terms and conditions, including specific scope of use as set forth herein
for NRI and to Future Joint Venture Entities, with the prior written consent of
ACNielsen, not to be unreasonably withheld, on the same terms and conditions,
including specific scope of use as set forth herein for NRI. ACNielsen shall be
a third-party beneficiary of each sublicense by NRI, but solely for the purpose
of permitting ACNielsen to enforce the sublicense if NRI fails to do so within a
reasonable time. ACNielsen shall be entitled to approve each sublicense to a
Future Joint Venture Entity prior to its effectiveness (and shall be deemed to
have approved it thirty (30) days after delivery of the sublicense to it if it
does not respond to NRI within such time period).
(b) Permitted Use. NRI agrees to use the Nielsen Trademark in
conjunction with the Nielsen//NetRatings CBD only in connection with the conduct
of the Internet Service conducted by it (such use being a "Permitted
Nielsen//NetRatings CBD Use").
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(c) Quality Control. The nature and quality of the Internet Services
supplied in connection with the Nielsen//NetRatings CBD shall conform to the
standards of the Internet Service provided by NRI and eRatings on the Effective
Date, as modified from time to time by written agreement among the Parties which
shall not be unreasonably withheld. NRI will cooperate with ACNielsen in
facilitating its monitoring and control of the nature and quality of such
services and will supply ACNielsen 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 such quality standards, NRI shall modify its use of the
Nielsen//NetRatings CBD and shall submit corrected specimens of use to ACNielsen
within thirty (30) days of notice by ACNielsen.
(d) Certain Acknowledgments. ACNielsen has the right to grant it a
license to use 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 further agrees that the use of the Nielsen
Trademark by it shall inure to the benefit of, and be solely on behalf of,
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 to it any
right, title or interest in any other trademark or service mark of ACNielsen.
(e) Restrictions on Use. 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. NRI shall use the Nielsen//NetRatings CBD so that it
creates a separate and distinct impression from any other trademark that may be
used by it, except in connection with the Permitted Nielsen//NetRatings CBD Uses
pursuant to the standards set forth in Section 3.1(c). NRI agrees that it will
not contest any ACNie1sen registration or application with respect to the
Nielsen Trademark. NRI shall comply with all Applicable Laws pertaining to the
proper use and designation of the Nielsen Trademark as part of the
Nielsen//NetRatings CBD.
(f) No Registration of ACNielsen Trademarks. NRI agrees not to apply
to register the Nielsen//NetRatings mark or the Nielsen Trademark, or any words
or combination of words containing the Nielsen Trademark (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 ACNielsen, 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 ACNielsen's request, promptly abandon all
use of such mark and withdraw any registration or application for registration
thereof. Nothing in this Section 3.1(f) shall require NRI to abandon or withdraw
any of the existing NRI Trademarks listed on Exhibit A.
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(g) No Registration of NRI Trademarks. ACNielsen agrees not to apply
to register any of 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 ACNielsen, 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,
ACNielsen shall, at NRI's
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request, abandon all use of such mark and withdraw any registration or
application for registration thereof. Nothing in this Section 3.1(g) shall
require ACNielsen to abandon or withdraw existing NRI Trademarks.
(h) Certain Representation and Warranties. ACNielsen has the right to
grant to NRI a license to use the Nielsen Trademark as part of the
Nielsen//NetRatings CBD as provided in this Agreement, free and clear of any
liens, pledges or other encumbrances.
3.2 Acknowledgments.
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(a) 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 3.1(c). The intent of the Parties is not to create a
jointly-owned trademark or service mark with respect to "Nielsen//NetRatings."
No Party shall claim any ownership interest in the combined words in
"Nielsen//NetRatings," and no Party shall register the combined words
"Nielsen//NetRatings" as a trademark in any jurisdiction.
(b) NRI will cooperate with ACNielsen to develop appropriate
references to ACNielsen on the Nielsen//NetRatings WEB Site, and/or any other
WEB Sites which may promote the Internet Service.
(c) ACNielsen acknowledges that eRatings has previously granted
licenses to use the Nielsen Trademark as part of the Nielsen//NetRatings CBD
outside the United States to certain Existing Joint Venture Entities pursuant to
the Operating Agreements set forth on Exhibit B hereto. eRatings may terminate
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such trademark licenses if NRI enters a license for the Nielsen Trademark with
such entities as provided herein.
3.3 Infringement; Action.
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(a) ACNielsen (together with 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 ACNielsen (together with CZT/ACN Trademarks L.L.C.) to maintain and
protect its rights in the Nielsen//NetRatings CBD, insofar as the same relates
to the Nielsen Trademark. ACNielsen shall bear the cost of the attorneys' fees,
costs and expenses in connection with such claim or suit. NRI shall notify
ACNielsen 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 its attention, and ACNielsen (together with 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.
(b) 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.
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ARTICLE IV
TERMINATION
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4.1 Termination. This Agreement shall terminate if ACNielsen's and its
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Affiliates' (as of the Effective Date) direct or indirect ownership of the
issued and outstanding shares of common stock is less than 5% of all the issued
and outstanding shares of common stock of NRI. In addition this Agreement may be
terminated at any time (a) by the mutual written consent of the Parties or (b)
by any Party upon a material breach by any other Party, which breach remains
uncured for ninety (90) days after written notice thereof. Material breach
includes, without limitation, becoming insolvent, making a general assignment
for the benefit of creditors, suffering or permitting the appointment of a
receiver for its business or assets, becoming subject to any proceeding under
any bankruptcy or insolvency law, whether domestic or foreign, or having wound
up or liquidated, voluntarily or otherwise which action is not dismissed within
ninety (90) days.
4.2 Effect of Termination. Upon the termination of this Agreement (i) NRI's
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and its sublicensee rights under Articles II and III to the ACNielsen Sampling
Methodology and the Nielsen Trademark shall immediately terminate and shall
cease all use thereof except for (i) completion of contracts with Joint Venture
Entities which are in existence on the effective date, and (ii) customer
agreements which are in existence prior to the effective date of termination but
for no longer than one year after the effective date of termination, and (iii)
the provisions of Section 2.3(e) and Articles V, VI and VII shall survive.
4.3 Additional Remedies on Termination. In the event of any termination of
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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 V
DISPUTE RESOLUTION
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5.1 General Dispute Principles.
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(a) All disputes between or among the Parties under this Agreement
shall be settled, if possible, through good faith negotiations between the
relevant parties. In the event such disputes cannot be so resolved, such
disputes shall be resolved as provided in Section 5.2.
(b) If any Party 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 V shall not prevent such joinder. This Article
V shall also not prevent any Party or any such Affiliate from pursuing any legal
action against a Third Party.
5.2 Arbitration of Other Disputes.
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(a) 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 (" MA ") in
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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.
(b) The place of arbitration shall be Wilmington, Delaware.
(c) 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 5.2. 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.
(d) An award rendered in connection with an arbitration pursuant to
this Section 5.2 shall be final and binding upon the Parties, and the Parties
agree and consent that the 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.
(e) 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).
(f) 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 each Party. 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. Each 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 court of the State of Delaware 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.
(g) Each 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
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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 5.2 in connection with any Third Party litigation
proceedings.
(h) For purposes of any suit, action or legal proceeding permitted
under this Article V, each Party (i) hereby irrevocably submits itself to and
consents to the non-exclusive jurisdiction of the courts of the State of
Delaware or, if it has or can require jurisdiction, United States District Court
for Delaware 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 (ii) 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 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 Delaware or, if it has or can require jurisdiction, the
United States District Court for Delaware 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 Delaware
or any other jurisdiction.
ARTICLE VI
CONFIDENTIALITY
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6.1 Confidential Information. For the purposes of this Agreement,
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"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 6.2 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 VII shall survive any termination of this
Agreement.
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6.2 Non-Confidential Information. The obligations set forth in Section 6.1
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shall not apply to any particular portion of any Confidential Information that:
(i) row 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
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 VII
MISCELLANEOUS
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7.1 Governing Law. This Agreement shall be governed by the laws of the
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State of Delaware without regard to choice of law provisions thereof.
7.2 Assignment; Successors and Assigns. Except as otherwise provided
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herein, neither this Agreement nor any rights or obligations hereunder may be
assigned by any Party without the prior written consent of the other Parties,
except in the case of a merger, acquisition, reorganization, consolidation,
reincorporation, or sale of all or substantially all of the assets of the Party.
Notwithstanding the preceding sentence, NRI may sublicense any of its rights
under Articles II and III to one or more other wholly-owned subsidiaries;
provided, however, that no such sublicense shall relieve NRI from liability for
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any of its obligations hereunder. The provisions of this Agreement shall inure
to the benefit of, and be binding upon, the permitted successors, assigns and
administrators of the Parties to this Agreement.
7.3 Entire Agreement; Amendment. This Agreement constitutes the full and
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entire agreement among the Parties with respect to the subject matter hereof and
thereof, and supersedes all prior oral and written agreements and understandings
among 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. This
Agreement supercedes the Operating Agreement between NetRatings, Inc., and
ACNielsen eRatings.com, dated September 22, 1999.
7.4 Notices; etc. All notices and other communications hereunder shall be
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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 7.4):
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(a) If to ACNielsen:
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 LLP
425 Park Avenue
New York, New York 10022-3598
Telephone:(212) 836-7061
Facsimile:(212) 836-8689
Attention: Emanuel S. Cherney, Esq.
(b) 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 F. Radcliffe, Esq.
(c) If to eRatings:
ACNielsen eRatings.com
Stamford Landing
62 Southfield Avenue
Stamford, CT 06902
Attention: Chuck Cunningham
Fax: (203) 602-4500
Tel: (203) 602-4506
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With a copy to:
Kaye Scholer LLP
425 Park Avenue
New York, NY 10022
Attention: Emanuel Cherney, Esq.
Fax: (212) 836-8689
Tel: (212) 836-8000
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.
7.5 Delays or Omissions. Except as expressly provided in this Agreement, no
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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.
7.6 Expenses. Each of the Parties shall bear all legal, accounting and
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other transaction expenses incurred by it in connection with the negotiation,
execution, delivery and performance of this Agreement.
7.7 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be enforceable against the Parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
7.8 Severability. In the event that any provision of this Agreement becomes
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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.
7.9 Titles and Subtitles. The titles and subtitles used in this Agreement
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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.
ACNIELSEN CORPORATION
By: /s/ Michael E. Elias
------------------------
Name: Michael E. Elias
Title: Vice President
NETRATINGS, INC.
By: /s/ Todd Sloan
------------------------
Name: Todd Sloan
Title: CFO
ACNIELSEN ERATINGS.COM
By: /s/ Michael E. Elias
------------------------
Name: Michael E. Elias
Title: Vice President
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Exhibit A
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NRI Trademarks
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None.
-I-
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Exhibit B
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Operating Agreements
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Media Metric
Ibope
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