Software License Agreement - NetRatings Inc. and Nielsen Media Research Inc.
SOFTWARE LICENSE AGREEMENT
August 15, 1999
THIS SOFTWARE LICENSE AGREEMENT (this "Agreement") is made as of August
15, 1999, (the "Effective Date"), between NetRatings, Inc., a Delaware
corporation with a place of business at 830 Hillview Court, Milpitas, CA 95035
("NRI"), and Nielsen Media Research, Inc., a Delaware corporation with its
principal place of business at 299 Park Avenue, New York, NY 10171 ("NMR")
(collectively the "Parties").
RECITALS
NRI is in the business of developing, marketing, servicing and selling
interactive media and market research data related to the Internet. NRI has
developed certain software products with the functional and operational
components described in EXHIBIT A ("NRI Proprietary Software") hereto.
NMR desires to obtain from NRI, and NRI desires to grant to NMR, a
license to distribute and sublicense the Collection Software (as defined below)
and a license to use the Back End Software (as defined below) in certain
circumstances.
In consideration of these premises and of the mutual promises and
conditions contained in this Agreement, NRI and NMR agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meanings indicated. Any capitalized term not defined herein shall have the
meaning set forth in the Operating Agreement between the parties.
Section 1.1 ANCILLARY AGREEMENTS. "Ancillary Agreements" shall mean,
collectively, the Operating Agreement and the Panel Maintenance Agreement.
Section 1.2 BACK END SOFTWARE. "Back End Software" shall mean 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.
Section 1.3 COLLECTION SOFTWARE. "Collection Software" shall mean 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.
Section 1.4 DOCUMENTATION. "Documentation" means all printed documents,
flow charts, design specifications, and any other information necessary or
desirable to use either the Collection Software and/or Back End Software (as
applicable), including any amendments and
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modifications thereto, whether presently existing or created hereafter by or
for NRI during the term of the Agreement.
Section 1.5 ENTITY. "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.
Section 1.6 HOUSEHOLD PANEL. "Household Panel" shall mean the Panel
comprised of the initial group of Panel Members identified by NMR on behalf
of NRI for use in connection with the Internet Service, consisting initially
of approximately 5,000 households selected by NMR through the NMR Sampling
Methodology.
Section 1.7 INTELLECTUAL PROPERTY RIGHTS. "Intellectual Property
Rights" shall mean all worldwide right, title and interest of an Entity 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)
copyright; and (iii) trade secrets, know-how, processes, methods, engineering
data and technical information.
Section 1.8 INTERNET MEASUREMENT PANEL. "Internet Measurement Panel"
shall mean the Household Panel developed by or for the Parties for purposes
of monitoring and measuring Internet activities in North America using NMR
Trademark and other Panels in North America as the Parties may mutually agree
in writing.
Section 1.9 INTERNET SERVICE. "Internet Service" shall mean and include
NRI's existing and future business of developing, compiling and selling
market research and other services which monitor, track, measure, report and
analyze data relating to worldwide activities on the Internet which is
marketed under the "NetRatings" trademark and the NMR Trademark; provided,
however, that if NMR terminates the Operating Agreement due to a material
breach by NRI, the future business of developing, compiling and selling
market research and other services which monitor, track, measure, report and
analyze data relating to worldwide activities on the Internet which is
marketed by NMR not using the "NetRatings" trademark shall be deemed an
"Internet Service" for the one-year period commencing on the Termination Date
(as defined in the Operating Agreement).
Section 1.10 NMR SAMPLING METHODOLOGY. "NMR Sampling Methodology" shall
mean shall mean NMR'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.
Section 1.11 NRI PROPRIETARY SOFTWARE. "NRI Proprietary Software" shall
mean all computer software programs owned by NRI as of the Effective Date, as
listed on Exhibit A, or at any time during the term of this Agreement, and
all Updated thereto, for providing the Approved Internet Service (as defined
in the Operating Agreement). NRI Proprietary Software expressly
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excludes any software that NMR licenses from third parties for use with the
NRI Proprietary Software.
Section 1.12 "NMR TRADEMARK". "NMR Trademark" shall mean "Nielsen".
Section 1.13 OBJECT FORM. "Object Form" shall mean (i) any
machine-readable version of the source code suitable for execution by
computer equipment or (ii) any intermediate form derived from source code
which can be made executable by computer equipment.
Section 1.14 OPERATING AGREEMENT. "Operating Agreement" shall mean the
agreement between the parties entitled Operating Agreement of even date.
Section 1.15 PANEL. "Panel" shall mean any group of households or
Persons identified and selected in accordance with specified criteria for
purposes of generating data to measure specified activities.
Section 1.16 PANEL DATA. "Panel Data" shall mean all data provided by
the Panel Members through the Collection Software.
Section 1.17 PANEL MEMBER. "Panel Member" means households, Persons or
other participants comprising any Internet Measurement Panel, whether such
Panel is developed by or for either Party, 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
Internet Service.
Section 1.18 PANEL MEMBER LICENSE AGREEMENT. "Panel Member License
Agreement" shall mean NRI's standard end user license agreement for the
Collection Software the current version of which is attached as EXHIBIT C
("Panel Member License Agreement").
Section 1.19 PERSON. "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.
Section 1.20 PRODUCT RELEASE. "Product Release" shall mean a release of
a major modification of the NRI Proprietary Software, which is designated by
NRI in its sole discretion as a change in the digit(s) to the left of the
first decimal point in version number [(x).xx] of such software. Examples of
a Product Release may include a complete system rearchitecture, the addition
of major functionality or an interface re-design.
Section 1.21 TERMINATION DATE. "Termination Date" is the date on which
the Operating Agreement is terminated by NMR for breach by NRI.
Section 1.22 TRANSFER SITE. "Transfer Site" shall mean the site agreed
by the Parties for use of the Back End Software.
Section 1.23 UPDATES. The term "Updates" means upgrades, updates,
corrections or modifications to the NRI Proprietary Software made by NRI,
whether such upgrades, updates,
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corrections or modifications are characterized as Upgrade Releases, Version
Releases, Product Releases or otherwise.
Section 1.24 UPGRADE RELEASE. "Upgrade Release" shall mean a release of
the NRI Proprietary Software which is designated by NRI in its sole
discretion as a change in the digit(s) to the right of the tenths digit(s) in
version number [x.x(x)] of such software. Examples of an Upgrade Release may
include bug fixes, cosmetic changes to the interface or partial support for
integration with third parties.
Section 1.25 VERSION RELEASE. "Version Release" shall mean a release of
the NRI Proprietary Software which is designated by NRI in its sole
discretion as a change in the tenths digit in version number [x.(x)x] of such
software. Examples of a Version Release may include minor changes in
functionality, full support for integrations with third parties, user
demanded functionality changes, minor changes in the interface or support for
new platforms.
ARTICLE II
RIGHTS AND OBLIGATIONS
Section 2.1 GRANT OF LICENSE IN COLLECTION SOFTWARE. Subject to the
terms of this Agreement, NRI hereby grants to NMR, and NMR hereby accepts, a
non-transferable, non-exclusive, royalty-free license to reproduce and
distribute the Object Form of the Collection Software to Panel Members
located in North America for installation and use on computers operated by
such Panel Members. NMR may only sublicense the Collection Software to Panel
Members in Object Form and pursuant to a Panel Member License Agreement. NRI
reserves the right to change the Panel Member License Agreement in its sole
discretion and shall give notice of such change to NMR who must use the new
version of the Panel Member License Agreement within thirty (30) days after
notice.
Section 2.2 NOTICE OF PANEL MEMBER'S BREACH. NMR shall promptly notify
NRI if NMR becomes aware of any Panel Member's material breach of any
provision under a Panel Member License Agreement. License further agrees to
cooperate with NRI in any legal action to prevent or stop unauthorized use,
reproduction, public display, public performance, derivation or distribution
of the Collection Software or any part thereof.
Section 2.3 RESERVATION OF RIGHTS. All rights not specifically granted
to NMR hereunder are reserved by NRI.
ARTICLE III
BACK END SOFTWARE
Section 3.1 BACK END SOFTWARE. After the Termination Date, upon the
request of NMR, NRI shall promptly provide one copy of the Object Form of the
Back End Software for installation on a computer at the Transfer Site. NRI
shall provide NMR with reasonable technical assistance in installing the Back
End Software.
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Section 3.2 GRANT OF LICENSE IN BACK END SOFTWARE. Subject to the terms
of this Agreement, NRI hereby grants to NMR, and NMR hereby accepts, a
non-transferable, non-exclusive, royalty-free license, without right of
sublicense, to reproduce the Back End Software on computers at the Transfer
Site for use in providing the Internet Service for 365 days after the
Termination Date.
ARTICLE IV
TERM AND TERMINATION
Section 4.1 TERM. This Agreement shall commence on the Effective Date
and shall remain in effect until terminated as set forth below.
(a) TERMINATION FOR CAUSE. Either Party may terminate this Agreement
upon thirty (30) days written notice for the other Party's material breach of
this Agreement if such breach is not cured within such thirty (30) day period.
(b) TERMINATION UPON AGREEMENT. This Agreement may be terminated at any
time by the mutual consent of NRI and NMR.
(c) TERMINATION UPON TERMINATION OF THE OPERATING AGREEMENT. This
Agreement may be terminated upon the termination of the Operating Agreement
except if NMR terminates the Operating Agreement due to breach by NRI, in
which case the term of this License Agreement shall end 365 days after the
effective date of such termination.
Section 4.2 EFFECT OF TERMINATION. Upon the termination or expiration
of this Agreement, NMR shall terminate further use and distribution of the
Collection Software, cease use of the Back End Software, return or destroy
all copies of the Back End Software and Collection Software to NRI and cease
any further use of the Trademarks. The Parties agree, however, that the
licenses granted to Panel Members to use the Collection Software shall remain
in effect according to their terms.
Section 4.3 SURVIVAL. The defined terms contained herein and the
following provisions shall survive any termination of this Agreement: Article
5 ("Warranty"), Article 6 ("Limitation of Liability"), Article 7
("Proprietary Rights"), Article 11 ("Confidentiality"), and Article 12
("General").
ARTICLE V
WARRANTY
THE NRI PROPRIETARY SOFTWARE AND ALL OTHER PRODUCTS OR SERVICES PROVIDED
HEREUNDER ARE PROVIDED "AS IS". EXCEPT AS PROVIDED IN SECTION 9.1
("REPRESENTATIONS AND WARRANTIES"), NRI MAKES NO WARRANTY, EXPRESS OR
IMPLIED, RELATED TO THEM, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FITNESS FOR A PARTICULAR PURPOSE.
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ARTICLE VI
LIMITATION OF LIABILITY
EXCEPT AS PROVIDED IN ARTICLE X ("NRI INDEMNIFICATION"), NRI WILL BE NOT
LIABLE TO NMR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
STATUTORY DAMAGES RELATED TO ANY CAUSE OF ACTION ARISING OUT OF THIS
AGREEMENT, EVEN IF NRI IS INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.
ARTICLE VII
PROPRIETARY RIGHTS
Section 7.1 OWNERSHIP. Title and ownership of all Intellectual Property
Rights in the NRI Proprietary Software will at all times remain the property
of NRI. NMR agrees not to remove or obliterate any copyright, trademark or
proprietary rights notices of NRI or NRI's Suppliers from the NRI Proprietary
Software or Documentation. NMR further agrees to reproduce all such notices,
including but not limited to those specified in EXHIBIT B ("Trademarks"), in
accordance with Article VIII ("Trademarks").
Section 7.2 REVERSE ENGINEERING. NMR shall not modify the NRI
Proprietary Software or disassemble, decompile, reverse engineer or otherwise
attempt to derive source code from the NRI Proprietary Software.
ARTICLE VIII
[INTENTIONALLY LEFT BLANK]
ARTICLE IX
REPRESENTATIONS AND WARRANTIES OF NRI
Section 9.1 REPRESENTATIONS AND WARRANTIES. NRI represents and warrants
to NMR that the statements contained in this Section 9.1 are true, correct
and complete as of the Effective Date, PROVIDED, HOWEVER, that the statements
set forth in Section 9.1(v) will be true, correct with respect to any Update
only upon the date of the release of such Update:
(i) The Collection Software shall perform substantially as described
in EXHIBIT A .
(ii) To the best of NRI's knowledge, NRI has good and marketable
title to the NRI Proprietary Software, including all
Intellectual Property Rights therein, and has all necessary
rights to enter into this Agreement without violating any
other agreement or commitment to which it is subject;
provided, however, that this representation does not increase
the scope of the representation in Section 9.1(iv) by making
any representations regarding unasserted patent claims by
third parties.
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(iii) To the best of NRI's knowledge, the NRI Proprietary Software
does not infringe or constitute a misappropriation of the
Intellectual Property Rights of any third party.
(iv) To the best of NRI's knowledge, the NRI Proprietary Software
does not contain, nor will contain upon delivery Harmful Code,
as that term is defined below. "Harmful Code" shall mean any
computer programming code which is constructed with the intent
to and which does, damage, interfere with or otherwise
improperly affect other computer programs, data files or
hardware without the knowledge or consent of the computer
user. "Harmful Code" includes, but is not limited to,
self-replicating and self-propagating program instructions
commonly referred to as "viruses" or "worms".
(v) The NRI Proprietary Software will be able to accurately
process data (including but not limited to, calculating,
comparing, and sequencing, from and into and between, the
twentieth and twenty-first centuries, including leap year
calculations), without diminution in function or performance,
to the extent that any third party hardware and/or software
that the user of the Collection Software uses in conjunction
with the NRI Proprietary Software exchanges data accurately
with the NRI Proprietary Software.
ARTICLE X
NRI INDEMNIFICATION
Section 10.1 NRI INDEMNIFICATION. NRI agrees, at its expense, to
defend, indemnify and hold harmless NMR from and against any losses, damages,
expenses, liabilities and costs (including, without limitation, legal fees)
incurred by NMR as a result of any claims brought against NMR by third
parties arising from any infringement or misappropriation of any Intellectual
Property Right arising out of or relating to NMR's use of the NRI Proprietary
Software within the licenses set forth in this Agreement. NRI's obligations
under this Section are subject to the terms and conditions set forth below:
(i) NMR shall give NRI prompt notice, in writing, of the claim,
provided that any delay in such notice shall relieve NRI of
its obligation to indemnify NMR only to the extent that such
delay has prejudiced NRI's ability to defend such claim.
(ii) NMR shall grant NRI exclusive control over its defense and
settlement, provided that NMR may participate in such action
at NMR's own expense.
(iii) NMR provides reasonable information and assistance to NRI, at
NRI's expense, in the defense of such claim.
(iv) NRI's obligations under this Section shall cover only the NRI
Proprietary as delivered by NRI to NMR and not to any
modification or addition made by NMR or third parties not
acting on NRI's behalf if the NRI Proprietary as delivered
would not have violated the Intellectual Property Rights of
the third party.
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(v) NRI's obligations under this Section shall not cover any claim
of infringement of any third party's rights arising from use
of any NRI Proprietary furnished hereunder in combination with
other products if such infringement would be avoided by the
use of the NRI Proprietary alone.
(vi) If an infringement claim is asserted or is likely, NRI, at
NRI's cost, will have the right to terminate its indemnity
obligations for such claim herein by: (i) procuring for NMR
the right to use the NRI Proprietary for the use contemplated
by this Agreement; or (ii) modifying the NRI Proprietary
furnished hereunder as appropriate to avoid such rightful
claim of infringement, as long as the modification does not
impair or have a material adverse effect on the operation of
the Internet Service. NRI shall not be liable for any damages
incurred after the delivery of such modified version of the
NRI Proprietary.
Section 10.2 LIMITATION. THE FOREGOING STATES NMR'S SOLE AND EXCLUSIVE
REMEDY AND NRI'S SOLE AND EXCLUSIVE OBLIGATION, WITH RESPECT TO CLAIMS OF
INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND AND IS IN LIEU OF
ALL OTHER WARRANTIES OF NONINFRINGEMENT, EXPRESS OR IMPLIED.
ARTICLE XI
CONFIDENTIALITY
Section 11.1 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 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. 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 Receiving Party
shall maintain the secrecy of the Confidential Information disclosed pursuant
to this Agreement for a period of five (5) years from the date of disclosure
thereof. The obligations imposed by this Article IX shall survive any
termination of this Agreement.
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Section 11.2 NON-CONFIDENTIAL INFORMATION. The obligations set forth in
Section 11.1 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 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 XII
DISPUTE RESOLUTION
Section 12.1 GENERAL DISPUTE PRINCIPLES.
(a) All disputes between or among NRI, NMR and/or any of their
Affiliates 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
Section 12.2 ("Arbitration of Other Disputes").
(b) 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 XII
shall not prevent such joinder. This Article XII shall also not prevent
either Party or any such Affiliate from pursuing any legal action against a
third party.
Section 12.2 ARBITRATION OF OTHER DISPUTES.
(a) The Parties shall submit any controversy or claim arising out of,
relating to or in connection with this Agreement, or the breach thereof
("Demand for Arbitration"), to arbitration administered by the American
Arbitration Association ("AAA") in accordance with its then existing
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 San Diego, California.
(c) The Parties shall attempt, by agreement, to nominate a sole
arbitrator for confirmation by the AAA. If the Parties fail so to nominate a
sole arbitrator within thirty (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 Section 12.2. A
hearing on the matter in dispute shall commence within thirty (30) days
following selection of the arbitrator, and the decision of the arbitrator
shall be rendered no later than sixty (60) days after commencement of such
hearing.
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(d) 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 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 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 they deem 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 as 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.
(g) The Parties 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 Section
12.2 in connection with any third party litigation proceedings.
(h) For purposes of any suit, action, or legal proceeding permitted
under this Article XII, each Party (a) hereby irrevocably submits itself to
and consents to the non-exclusive jurisdiction of the 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 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
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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
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 XIII
MISCELLANEOUS
Section 13.1 GOVERNING LAW. This Agreement, and the respective rights,
duties and obligations of the Parties hereunder, shall be governed by and
construed and enforced in accordance with the laws of the State of California.
Section 13.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided in
this Agreement, the provisions of this Agreement shall inure to the benefit
of, and be binding upon, the successors, assigns, heirs, executors and
administrators of the parties to this Agreement. Notwithstanding anything
herein to the contrary, either Party shall have the right to assign its
rights or obligations hereunder, without the prior written consent of the
other Party, to an Affiliate (as defined in the Operating Agreement),
provided that no such assignment hereunder shall relieve the assigning Party
of its obligations hereunder.
Section 13.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Ancillary
Agreements and the other documents delivered pursuant to this Agreement on
the Effective Date constitute the full and entire understanding and agreement
between the Parties with regard to the subjects hereof and thereof, and
supersede all prior agreements and merge all prior discussions, negotiations,
proposals and offers (written or oral) between them, and neither Party shall
be liable or bound to the other Party in any manner by any warranties,
representations or covenants except as specifically set forth herein or
therein. This Agreement expressly supersedes the Escrow Agreement between the
parties dated October 26, 1998. 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.
Section 13.4 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 13.4):
(a) If to NMR:
Nielsen Media Research, Inc.
299 Park Avenue
New York, NY 10171
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Telephone: (212) 708-7004
Facsimile: (212) 708-7012
Attention: Chief Legal Officer
With copies to:
Coudert Brothers
1114 Avenue of the Americas
New York, NY 10036
Telephone: (212) 626-4400
Facsimile: (212) 626-4120
Attention: James C. Colihan, 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:
Mark Radcliffe, Esq.
Gray, Cary, Ware & Freidenrich
400 Hamilton Avenue
Palo Alto, CA 94301
Telephone: (650) 328-6561
Facsimile: (650) 327-3699
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 seventy-two (72) hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and postage prepaid as aforesaid.
Section 13.5 DELAYS OR OMISSIONS. Except as expressly provided in this
Agreement, no delay or omission to exercise any right, power or remedy
accruing to NMR, upon any breach or default of NRI under this Agreement,
shall impair any such right, power or remedy of NMR 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 NMR of any breach or
default under this Agreement, or any waiver on the part of NMR of any
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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.
Section 13.6 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 to obtain
confidential treatment for any Confidential Information where such press
release or other public statement is required to be made by Applicable Law.
Section 13.7 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.
Notwithstanding the foregoing, NMR shall reimburse NRI, upon presentation of
a written invoice therefor, for the reasonable fees and expenses of one
special outside counsel retained by NRI to advise it in connection with this
Agreement and the transactions contemplated hereby and thereby, provided that
such reimbursement obligation of NMR shall not exceed ten thousand dollars
($10,000).
Section 13.8 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.
Section 13.9 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.
Section 13.10 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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<PAGE>
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first set forth above.
NETRATINGS, INC.
By:
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Title:
--------------------------------
Date:
---------------------------------
NIELSEN MEDIA RESEARCH, INC.
By:
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Title:
--------------------------------
Date:
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