Services Agreement - ACNielsen Corp., NetRatings Inc. and ACNielsen eRatings.com
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") is entered into as of May
7, 2002 (the "Effective Date") by and between ACNielsen Corporation, a Delaware
corporation with a place of business at 177 Broad Street, Stamford, Connecticut
("ACNielsen"), NetRatings, Inc., a Delaware corporation with its principal place
of business at 890 Hollview Court, Milpitas, California, 95035 ("NetRatings"),
and ACNielsen eRatings.com, a Delaware corporation with its principal place of
business at 177 Broad Street, Stamford, Connecticut ("eRatings" and, together
with ACNielsen and NetRatings, the "Parties"). In consideration of the mutual
promises contained in this Agreement, the Parties hereby agree as follows:
1. Services and Relationship.
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a. ACNielsen and/or one or more of its subsidiaries (collectively, the
"ACNielsen Group") shall render to the eRatings Business (as defined
below) the services set forth herein (the "Services") on the terms and
subject to the conditions set forth in this Agreement. For the
purposes of this Agreement, the "eRatings Business" means the business
and operations actually conducted by eRatings on the date of this
Agreement, at the specific locations in the Operating Locations at
which such business and operations are conducted on the date of this
Agreement, whether such business and operations continue to be
conducted by eRatings, are conducted by one or more subsidiaries of
eRatings or IBOPE.eRatings.com or Mediatemetrie eRatings.com or are
conducted by NetRatings or one or more subsidiaries of NetRatings. The
obligation of the ACNielsen Group to provide the Services hereunder
shall be to provide such Services at substantially the levels at which
they are being provided on the date of this Agreement. The Services
shall consist of:
i. Making available to the eRatings Business during the Term (as
defined in Section 6), on the terms and subject to the conditions
set forth herein, the services of the individuals listed on
Exhibit A hereto (the "Dedicated Employees"), each of whom is
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currently an employee of a member of the ACNielsen Group and each
of whom currently is dedicated to, and performs services only for
eRatings. The services currently being provided to eRatings by
the Dedicated Employees include, without limitation, (A)
marketing services, including sales leads, introducing potential
clients, and assisting in client relations issues; and (B)
Internet measurement panel enumeration and management services.
With respect to any individual listed on Exhibit A hereto, the
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ACNeilsen Group shall cease to be obligated to make the services
of such individual available to the eRatings Business as a
Dedicated Employee and, subject to the express terms and
conditions hereof eRatings and NetRatings shall cease to be
obligated to pay for such services hereunder, on the earliest to
occur of (1) the date he or she ceases to be an employee of
[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS, WHICH ARE NOTED HEREIN WITH THREE ASTERISKS "[***]."
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the ACNielsen Group, (2) the date he or he or she otherwise
ceases to be dedicated to, and perform services only for the
eRatings Business, (3) the expiration of the Decision Period or,
if applicable, the expiration of the Termination Period,
following the delivery by eRatings of a Waiver Notice (as defined
in Section 5(a)(vi)) as to such Dedicated Employee and (4) the
expiration of the Term.
ii. The services (other than those contemplated by Section 1(a)(i)
above) which are being provided by the ACNielsen Group to
eRatings as of June 30, 2001, including, without limitation, the
shared services (the "Shared Services") described on Exhibit B
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hereto.
b. The Services shall be provided in the countries listed on Exhibit C
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hereto (each, an "Operating Location") by one or more members of the
ACNielsen Group which conduct(s) business in that Operating Location.
To the extent the Parties agree that it would be mutually beneficial,
the relevant entities in an Operating Location may enter into a
separate agreement between such parties covering the Services to be
provided in such Operating Location; provided, that such separate
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agreement shall reflect the terms and conditions set forth in this
Agreement and shall include a provision which provides that, in the
event of a conflict between the terms and conditions of such other
agreement and this Agreement, the terms and conditions of this
Agreement shall control.
c. eRatings or NetRatings shall designate in each Operating Location a
representative who shall be authorized to request the Services in
writing from time to time.
2. Relationship of the Parties. The relationship of the various members of the
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ACNielsen Group, on the one hand, to eRatings, NetRatings and the eRatings
Business, on the other, is that of an independent contractor, and this
Agreement shall not be construed as creating any other sort of business
relationship, including without limitation, an employment, agency,
partnership or joint venture relationship.
3. Consideration. eRatings and NetRatings, jointly and severally agree to pay
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the ACNielsen Group for the Services the consideration determined as set
forth on Exhibit D hereto. Upon eRating's or NetRatings' request, the
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ACNielsen Group shall make available to them reasonable supporting
documentation evidencing the direct costs described on Exhibit D hereto.
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4. Payment Terms.
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a. The ACNielsen Group shall invoice eRatings and NetRatings quarterly in
arrears. Upon request, the ACNielsen Group will provide commercially
reasonable detail to support the charges included in an invoice.
Invoices properly rendered hereunder shall be payable within ninety
(90) days of receipt. All amounts billed hereunder
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shall be denominated in the currency local to the entity of the
ACNielsen Group which presents the invoice. Disputed amounts shall not
affect payment of non-disputed amounts. eRatings and NetRatings shall
pay any applicable tariff, duty, tax, or like charge, however
designated, imposed by any government with respect to the Services.
b. NetRatings and eRatings shall have the right, at their sole cost and
expense, during reasonable business hours and upon reasonable advance
notice to review the computer printouts and reports and other books
and records of the ACNielsen Group to the extent that the same relate
to the Services provided by the ACNielsen Group hereunder; provided,
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that the right granted to NetRatings and eRatings under this Section
4(b) shall not be exercised in total more frequently that once per
calendar quarter.
5. Dedicated Employee Matters.
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a. With respect to each Dedicated Employee, during the period beginning
on the Effective Date and ending on the earlier to occur of (1) the
expiration of the Term and (2) such employee's Offer Expiration Date
(as defined in Section 5(c)):
i. Subject to (x) applicable laws and regulations, (y) the written
employment policies of the ACNielsen Group as in effect from time
to time and (z) any contract or agreement in effect on the date
hereof or hereafter consented to by NetRatings governing such
Dedicated Employee's employment with the ACNielsen Group, the
ACNielsen Group shall not without the consent of NetRatings (such
consent not to be unreasonably withheld or delayed) terminate
such Dedicated Employee's employment with the ACNielsen Group.
ii. The ACNielsen Group shall not without the consent of NetRatings
(such consent not to be unreasonably withheld or delayed) modify
such Dedicated Employee's salary, benefits, perquisites or other
compensation as in the effect on the date hereof other than (w)
as required by any applicable contract or agreement in effect on
the date hereof or entered into after the date hereof with the
consent of NetRatings, (x) in the ordinary course of business in
accordance with past practice, (y) in connection with changes to
benefit plans and arrangements maintained by the ACNielsen Group
and in which such Dedicated Employee participates, which changes
affect such Dedicated Employee and other employees of the
ACNielsen Group generally or (z) in accordance with applicable
laws and regulations.
iii. The ACNielsen Group shall not, without the prior written consent
of NetRatings, solicit, encourage or request any Dedicated
Employee, or
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otherwise affirmatively take steps to cause any Dedicated
Employee, to cease to be dedicated to, and perform services only
for the eRatings Business.
iv. Subject to applicable laws and regulations, the ACNielsen Group
shall otherwise comply with the reasonable written requests of
NetRatings and eRatings as to such Dedicated Employee, including,
without limitation, as to his or her compensation, benefits,
perquisites and other compensation; provided, that the ACNielsen
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Group shall under no circumstances be obligated to terminate the
employment of any Dedicated Employee at the direction of eRatings
or NetRatings.
v. If eRatings or NetRatings determine that the eRatings Business no
longer desires that the services of such Dedicated Employee be
made available to the eRatings Business under this Agreement,
NetRatings may deliver a written notice to that effect (a "Waiver
Notice") to ACNielsen. During the 30-day period following the
date of delivery of a Waiver Notice (the "Decision Period"), the
ACNielsen Group (x) may but shall not be obligated to) deliver
written notice (a "Dedicated Employee Termination Notice") to
NetRatings notifying NetRatings that the ACNielsen group desires
to terminate the employment with the ACNielsen Group of one or
more of the individuals covered by the Waiver Notice (any such
individual, an "Identified Dedicated Employee") and (y) shall, if
it exercises its option under the preceding clause (x) with
respect to any such Identified Dedicated Employee, notify each
such Identified Employee that his or her employment with the
ACNielsen Group is to be terminated and in good faith begin and
thereafter pursue all appropriate proceedings and actions
(including the observance of any relevant notice periods and
other formalities) under applicable contracts, agreements,
statutes, laws, treaties and regulations to effect the
termination of each such Identified Employee in accordance
therewith.
vi. During the 30-day period (the "Final Decision Period")
immediately following the date the Term expires or, if it occurs
earlier the date of termination of this Agreement under Section
7, the ACNielsen Group (x) may (but shall not be obligated to)
deliver written notice (a "Dedicated Employee Termination
Notice") to NetRatings that the ACNielsen Group desires to
terminate the employment with the ACNielsen Group of one or more
of the Dedicated Employees (any such individual, an "Identified
Dedicated Employee") and (y) shall, if it exercises its option
under the preceding clause (x) with respect to any such
Identified Dedicated Employee, notify each such Identified
Employee that his or her employment with the ACNielsen Group is
to be terminated and in good faith begin and thereafter pursue
all appropriate proceedings and actions (including the observance
of any relevant notice periods and other formalities) under
applicable contracts,
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agreements, statutes, laws, treaties and regulations to effect
the termination of each such Identified Employee in accordance
therewith.
vii. For the purposes of this Agreement, the "Termination Period" with
respect to any Identified Dedicated Employee means the period
beginning on the date a Dedicated Employee Termination Notice
covering him or her is delivered by the ACNielsen Group and
ending on the date that his or her employment with the ACNielsen
Group is terminated as contemplated by clause (y) of the final
sentence of Section 5(a)(v) or clause (y) of the final sentence
of Section 5(a)(vi), as applicable.
viii. Notwithstanding anything to the contrary provided in this
Agreement, eRatings and NetRatings shall remain obligated to make
payments to the ACNielsen Group as contemplated by Annex D with
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respect to any Dedicated Employee (x) during his or her Decision
Period or Final Decision Period (as applicable) and, (y) if
applicable, during his or her Termination Period.
b. In the event that, during the Term a Dedicated Employee shall cease to
be employed by the ACNielsen Group due to his or her retirement,
death, disability or voluntary termination of employment, the
ACNielsen Group agrees to cooperate with eRatings and NetRatings to
the extent that the ACNielsen Group determines in good faith it to be
reasonably practicable and appropriate to work with eRatings and
NetRatings (at their cost and expense) to identify and employ an
appropriate replacement individual to provide to the eRatings Business
the Services previously provided by such Dedicated Employee.
c. From time to time during the Transition Period, NetRatings may deliver
to ACNielsen a written notice (an "Employee Conversion Notice")
identifying one or more Dedicated Employees who NetRatings desires to
be converted from employees of the ACNielsen Group to employees of the
eRatings Business in accordance with this Section 5. Promptly after
receipt by ACNielsen of an Employee Conversion Notice, ACNielsen will
inform each Dedicated Employee that is covered thereby that NetRatings
has requested that such Dedicated Employee cease to be an employee of
the ACNielsen Group and become an employee of the eRatings Business.
Thereafter, NetRatings may negotiate with any such Dedicated Employee
to arrive at terms and conditions (including, without limitation,
relating to salary, benefits, perquisites and similar matters)
mutually satisfactory to NetRatings and such Dedicated Employee and on
which he or she would accept employment with the eRatings Business.
For the purposes of this Agreement, any Dedicated Employee's "Offer
Expiration Date" means the 30th day following the date on which
NetRatings delivers an Employee Conversion Notice with respect to such
Dedicated Employee.
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d. For the purposes of this Agreement, the term "Indemnified Severance
Costs" means any and all liabilities, damages, proceedings, claims,
fines, costs and expenses (including, without limitation, severance
payments), including, without limitation, reasonable attorneys fees,
arising out of or in connection with, directly or indirectly, the
cessation of the employment with the ACNielsen Group of any individual
listed on Exhibit A hereto unless such cessation of employment (x) is
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effected by the ACNielsen Group in breach of Section 5(a)(i) hereof,
(y) is effected by ACNielsen in a manner that constitutes a willful or
grossly negligent violation of applicable laws and regulations, or (z)
if eRatings delivers a Waiver Notice covering such individual and the
ACNielsen Group does not deliver a related Dedicated Employee
Termination Notice with respect to such individual, occurs after the
expiration of his or her Decision Period. In the event that (i)
NetRatings or eRatings actually pays any Indemnified Severance Costs
to ACNielsen hereunder in connection with the cessation with the
ACNielsen Group of any Dedicated Employee, and (ii) such Dedicated
Employee is rehired by a member of the ACNielsen Group within one year
following the date on which such Dedicated Employee's employment with
the ACNielsen Group ceased, then ACNielsen shall reimburse NetRatings
or eRatings (as applicable) for all such Indemnified Severance Costs
actually paid to ACNielsen thereby.
e. ACNielsen agrees to reasonably cooperate with NetRatings and eRatings
to provide assistance to the eRatings Business in connection with any
investigation by the eRatings Business of any investigation of any
illegal or fraudulent activities, security breaches or similar
situations relating to the eRatings Business or the Services hereunder
and which involve one or more Dedicated Employees.
f. The ACNielsen Group shall comply in all material respects with
federal, state, county, local and other foreign and domestic laws that
are applicable to the employment by the ACNielsen Group of the
Dedicated Employees, including, without limitation, applicable wage
and hour laws, applicable health and safety laws, applicable family
and medical leave laws, applicable military leave laws and workers
compensation laws, including without limitation, any applicable law or
regulation that requires the ACNielsen Group to provide specified
workers compensation insurance or other specified insurance coverage.
ACNielsen agrees to indemnify NetRatings and eRatings and their
respective officers, directors, employees and agents from and against
all liabilities and claims arising from, resulting from or relating to
any material breach by the ACNielsen Group of the covenant set forth
in the immediately preceding sentence.
6. Term. This term of Agreement (the "Term") shall commence on the Effective
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Date and shall continue until the fifth anniversary of the Effective Date,
unless sooner terminated as provided in Section 8 below.
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7. Standard of Services. The ACNielsen Group shall provide the Services to the
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eRatings Business with substantially the same level of timeliness,
competence and skill as it provides substantially similar services to
itself and its affiliates.
8. Termination.
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a. This Agreement may be terminated at any time during the Term (a) by
the mutual written consent of the Parties or (b) by either Party upon
a material breach by the other Party, which breach remains uncured for
ninety (90) days after written notice thereof. Material breach
includes, without limitation: (a) failing to pay invoices when due or
(b) 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 (where such
proceeding is not dismissed within ninety (90) days), or having wound
up or liquidated, voluntarily or otherwise.
b. ACNielsen may terminate this Agreement at any time, effective upon
written notice to eRatings and NetRatings in the event a Change of
Control (as defined below) occurs. For the purposes of this Agreement,
a "Change of Control" means that ACNielsen's and its affiliates' (as
of the Effective Date) direct or indirect ownership of the issued and
outstanding shares of common stock of NetRatings is less than 5% of
all of the issued and outstanding shares of common stock of
NetRatings.
c. Notwithstanding any termination of this Agreement, eRatings and
NetRatings shall remain liable for any payment and other obligations
incurred by them prior to termination and the provisions of paragraphs
8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 shall survive.
9. Dispute Resolution. The Parties shall submit any controversy arising out of
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this Agreement and not resolved through good faith negotiations ("Claim"),
to arbitration by the American Arbitration Association in New York, New
York. The arbitrator's judgment shall be final and binding, the exclusive
remedy, and enforceable in any court of competent jurisdiction. Each Party
irrevocably consents to the non-exclusive jurisdiction of the courts of the
State of New York and the United States District Court for the Southern
District of New York, and waives all defenses based upon personal
jurisdiction, forum or venue in connection with such arbitration or
enforcement in such courts. The arbitrator may award only any remedies that
a New York court could order, including provisional remedies but excluding
ex parte relief. Each Party shall bear its own costs.
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10. Governing Law; Construction. This Agreement shall be governed by the laws
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of the State of Delaware, without regard to the conflicts of law principles
thereof. In the event of any inconsistency between this Agreement and any
other document executed between the Parties pursuant to this Agreement,
this Agreement shall control, unless the other document specifically and
conspicuously states the Parties' intention otherwise.
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11. Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT:
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ALL SERVICES, GOODS AND FACILITIES PROVIDED HEREUNDER ARE "AS IS", "WITH
ALL FAULTS" AND WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE
PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A
PARTICULAR USE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR
ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, RELIANCE,
CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, WHETHER BASED ON CONTRACT, TORT
(INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, REGARDLESS OF
WHETHER THE SUBJECT PARTY KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF
SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING UNDER SECTION 12 OR AS A RESULT
OF A PARTY"S WILLFUL MATERIAL BREACH OF THIS AGREEMENT, EITHER PARTY'S
MAXIMUM AGGREGATE LIABILITY UNDER ANY THEORY SHALL NOT EXCEED THE AMOUNT
ACTUALLY PAID BY eRATINGS AND NETRATINGS TO THE ACNIELSEN GROUP HEREUNDER
IN THE TWELVE MONTHS BEFORE THE DATE THE CAUSE OF ACTION AROSE. In the
event applicable law does not permit limitation or exclusion of liability
as provided in this Section, the subject limitation or exclusion of
liability shall be deemed modified so as to be effective to the greatest
extent permitted.
12. Indemnification.
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a. eRatings and NetRatings jointly and severally agree to indemnify and
hold harmless each member of the ACNielsen Group and their respective
directors, officers, employees, shareholders and agents, and each of
the heirs, executors, successors and assigns of any of the foregoing,
from and against any and all liabilities, obligations, damages,
deficiencies, expenses, actions, suits, proceedings, demands,
assessments, judgments, claims, losses, fines, penalties, costs and
expenses, including without limitation, costs of investigation and
defense and reasonable attorneys' fees arising out of or in connection
with, the willful misconduct or gross negligence of eRatings,
NetRatings or the eRatings Business in connection with the Services
provided by the ACNielsen Group hereunder, including, without
limitation, the use or direction by the eRatings Business of any
Dedicated Employee.
b. ACNielsen agrees to indemnify and hold harmless each NetRatings and
eRatings and their respective directors, officers, employees,
shareholders and agents, and each of the heirs, executors, successors
and assigns of any of the foregoing, from and against any and all
liabilities, obligations, damages, deficiencies, expenses, actions,
suits, proceedings, demands, assessments, judgments, claims, losses,
fines, penalties, costs and expenses, including without limitation,
costs of investigation and defense and reasonable attorneys' fees
arising out of or in connection with, the willful misconduct
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or gross negligence of the ACNielsen Group in connection with the
Services provided by the ACNielsen Group hereunder.
c. eRatings and NetRatings, jointly and severally, agree to indemnify and
hold harmless each member of the ACNielsen Group and their respective
directors, officers, employees, shareholders and agents, and each of
the heirs, executors, successors and assigns of any of the foregoing,
from and against any Indemnified Severance Costs, without duplication
of indemnity for any matters covered by clause 12(a).
13. Force Majeure. Neither Party shall be liable to the other for any failure
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or delay in the performance of its obligations under this Agreement (other
than its payment obligations hereunder) because of circumstances beyond its
control including, but not limited to, acts of God, flood, fire, riot,
accident, strikes, embargo, war, government action (including enactment of
any laws, ordinances, regulations or the like which restrict or prohibit
the providing of the Services or the making available of any of the
Facilities) and other causes beyond its control, whether or not of the same
class or kind as specifically named above. If either Party is unable to
perform its obligations hereunder for any of the reasons described in this
Section 12, such Party shall promptly notify the other of its inability to
so perform.
14. Notices. Notices shall be in writing and delivered by hand, courier, United
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States mail (prepaid and registered or certified), or fax with electronic
acknowledgment of receipt, in each case to the signatories hereof,
specifying their title, addressed to the addresses set forth on the
signature page below, with a courtesy copy addressed to the General Counsel
thereat. All such notices and communications hereunder shall for 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.
15. Miscellaneous. Except by a written instrument signed by the Party against
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whom enforcement is sought, this Agreement may not be amended and no breach
may be waived (including, without limitation, by action or inaction). If
any term of this Agreement is effectively invalidated, the remaining terms
shall be unimpaired, provided that the Agreement's economic benefit not be
thereby materially changed. Headings are for convenience only. The terms of
this Agreement that by their sense and context are intended to survive its
termination or expiration shall survive. Neither Party may assign this
Agreement without the prior written consent of the other Party; provided,
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that any member of the ACNielsen Group may assign its obligations hereunder
to any other member of the ACNielsen Group without, however, relieving
ACNielsen of its obligations hereunder to the extent that the assignee does
not perform such obligations.
16. Entire Agreement. With respect to the Services, this Agreement, including
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the attached Exhibits which are incorporated herein by this reference,
constitutes the entire agreement between the Parties and supersedes all
previous and contemporaneous agreements and
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understandings between the Parties, whether written or oral. The Agreement
may be executed in counterparts.
17. Effect on Existing Services Agreements; Conflicts. Reference is made to the
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existing Independent Representative Services Agreements in effect as the
date hereof (the "Existing Services Agreements"), each of which is between
eRatings, on the one hand, and a member of the ACNielsen Group, on the
other. The Parties agree that, (i) although the Existing Services
Agreements may remain in effect following the date hereof, as between
eRatings, on the one hand, and the members of the ACNielsen Group, on the
other, all of the Existing Services Agreements shall on and from the date
hereof, notwithstanding anything to the contrary therein, be deemed to have
been terminated and superseded by this Agreement (and, if applicable, by
any new services agreement entered into in the relevant Operating Location
under Section 1(b) hereof) and (ii) neither eRatings nor the ACNielsen
Group shall hereafter seek to enforce against the other any of the terms,
conditions or provisions of the Existing Services Agreements, in each case,
except as expressly set forth in this Section 17. Notwithstanding the
foregoing, eRatings shall remain obligated to make all payments due under
such Existing Services Agreements through the date hereof, and shall remain
responsible for any and all of its indemnification obligations thereunder.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
ACNIELSEN CORPORATION ACNIELSEN eRATINGS.COM
By: /s/ Michael E. Elias By: /s/ Michael E. Elias
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Name: Michael E. Elias Name: Michael E. Elias
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Title: Vice President Title: Vice President
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NETRATINGS, INC.
By: /s/ Todd Sloan
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Name: Todd Sloan
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Title: CFO
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EXHIBIT A
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[****]
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EXHIBIT B
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Shared Services
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1. Financial administration, including order processing, general accounting
and reporting services and collections.
2. IT support and use of global network and communications.
3. Human resources services, including payroll and benefits administration.
4. Global and regional finance support, including consolidation, treasury
support and outside auditing services.
5. Global and regional public relations.
6. Global and regional purchasing support, including Oracle licensing and ATT
global telephone.
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EXHIBIT C
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Operating Locations/2/
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Australia
Denmark
Germany
Hong Kong
Italy
Netherlands
Spain
Sweden
Switzerland
United States
United Kingdom
Austria
Belgium
Norway
Finland
Ireland
New Zealand
Singapore
Taiwan
China
South Korea
India
South Africa
Israel
France
Latin America
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/2/ This Exhibit C lists all jurisdictions in which the ACNielsen Group
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provides Services to eRatings as of May 6, 2002
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Exhibit D
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NetRatings and eRatings jointly and severally agree to pay the ACNielsen Group
for any Services provided by the ACNielsen Group to the eRatings Business
hereunder as follows:
1. Direct costs incurred by the ACNielsen Group in connection with providing
such Services, including (a) all salary, benefits, perquisites and other
compensation paid by the ACNielsen Group to each Dedicated Employee, (b) an
amount with respect to each Dedicated Employee that represents a pro rata
allocation for the use by such Dedicated Employee of the ACNielsen Group
facility at which such Dedicated Employee is located and (c) payments to
third-party suppliers of goods and services directly applied to the
eRatings Business; plus
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2. A shared services fee equal to 4% of the direct costs contemplated by 1
above; plus
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3. An Operating Location-specific mark-up on the aggregate sum of the direct
costs and the shared services fee contemplated by 1 and 2 above relating to
such Operating Location that is equal to the mark-up in effect in such
Operating Location as of June 30, 2001 and reflected under the Independent
Representative Service Agreement in effect on June 30, 2001 with respect to
such Operating Location between a member of the ACNielsen Group, on the one
hand, and eRatings, on the other.
ACNielsen represents and warrants to eRatings and NetRatings that the foregoing
methodology for determining the consideration to be paid by eRatings and
NetRatings for the Services under this Services Agreement is consistent with the
methodology in effect on June 30, 2001 for determining consideration payable by
eRatings to the members of the ACNielsen Group under the various Independent
Representative Services Agreements in effect on such date between eRatings, on
the one hand, and a member of the ACNielsen Group, on the other.