Operating Agreement - NetRatings Inc. and Nielsen Media Research Inc.
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OPERATING AGREEMENT
between
NETRATINGS, INC.
AND
NIELSEN MEDIA RESEARCH, INC.
Dated as of
August 15, 1999
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TABLE OF CONTENTS
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PAGE
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ARTICLE I Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1 "Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2 "Ancillary Agreements". . . . . . . . . . . . . . . . . . . . . . . . . .1
1.3 "Applicable Laws" . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.4 "Approved Internet Service" . . . . . . . . . . . . . . . . . . . . . . .1
1.5 "Business Panel". . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.6 "Collection Software" . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.7 "Documentation" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.8 "Entity". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.9 "Engineering Budget". . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.10 "Fiscal Year" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.11 "GAAP". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.12 "Household Panel" . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.13 "Intellectual Property Rights". . . . . . . . . . . . . . . . . . . . . .2
1.14 "Internet Measurement Panel". . . . . . . . . . . . . . . . . . . . . . .2
1.15 "Internet Service". . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.16 "License Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.17 "Net Customer Billings" . . . . . . . . . . . . . . . . . . . . . . . . .3
1.18 "Net SA Revenues" . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.19 "NMR Budget Approval Items" . . . . . . . . . . . . . . . . . . . . . . .3
1.20 "NMR Sampling Methodology". . . . . . . . . . . . . . . . . . . . . . . .3
1.21 "NMR Web Tracking Technologies" . . . . . . . . . . . . . . . . . . . . .3
1.22 "NMR Trademarks". . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.23 "North America" . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.24 "NRI Trademarks". . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.25 "NRI Proprietary Software". . . . . . . . . . . . . . . . . . . . . . . .3
1.26 "NRI Web Tracking Technologies" . . . . . . . . . . . . . . . . . . . . .3
1.27 "Operating Committee" . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.28 "Operating Committee Approval" and "Approved by the Operating
Committee". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.29 "Panel" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
1.30 "Panel Maintenance Agreement" shall mean the Panel Maintenance
Agreement attached as Exhibit I hereto. . . . . . . . . . . . . . . . . .4
1.31 "Panel Maintenance Charges" . . . . . . . . . . . . . . . . . . . . . . .4
1.32 "Panel Member". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
1.33 "Person". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
1.34 "Product Release" . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
1.35 "Proposed Budget" . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
1.36 "Specifications". . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
1.37 "Targeted Expenditures" . . . . . . . . . . . . . . . . . . . . . . . . .4
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1.38 "Third Party" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.39 "Third-Party Software". . . . . . . . . . . . . . . . . . . . . . . . . .5
1.40 "Updates" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.41 "Upgrade Release" . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.42 "Version Release" . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
ARTICLE II Operation of the Internet Service . . . . . . . . . . . . . . . . . . . .5
2.1 Internet Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.2 Marketing; Pricing. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.3 Targeted Expenditures.. . . . . . . . . . . . . . . . . . . . . . . . . .6
2.4 Panel Logistics.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
2.5 Strategic Alliances.. . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.6 Product Strategies. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.7 Product Quality Control.. . . . . . . . . . . . . . . . . . . . . . . . .9
2.8 Staffing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.9 Site Inspections. . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.10 Other Technologies. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III Operating Committee. . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.1 Operating Committee.. . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.2 Annual Budgets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV Technology Ownership Rights . . . . . . . . . . . . . . . . . . . . . . 13
4.1 NRI Ownership Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.2 NMR Ownership Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE V Net Customer Billings. . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.1 Payment Percentages.. . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.2 Payments to NMR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Right of Inspection.. . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI Trademarks; Licenses. . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.1 Trademarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.2 Acknowledgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.1 Termination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.2 Effect of Termination.. . . . . . . . . . . . . . . . . . . . . . . . . 19
7.3 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VIII Dispute Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.1 General Dispute Principles. . . . . . . . . . . . . . . . . . . . . . . 21
8.2 Arbitration of Other Disputes.. . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IX Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.1 Confidential Information. . . . . . . . . . . . . . . . . . . . . . . . 23
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9.2 Non-Confidential Information. . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE X Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
10.1 Governing Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
10.2 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . 24
10.3 Entire Agreement; Amendment.. . . . . . . . . . . . . . . . . . . . . . 24
10.4 Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.5 Delays or Omissions.. . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.6 Publicity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.7 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.8 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.9 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.10 Titles and Subtitles. . . . . . . . . . . . . . . . . . . . . . . . . . 27
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Exhibit A Licensed NRI Technology Specifications
Exhibit B License Agreement
Exhibit C Panel Member License Agreement
Exhibit D Operating Committee
Exhibit E Technology Companies, Marketers, Web Sites and Web-only Agencies for
which NMR has Marketing Responsibilities
Exhibit F Trademarks
Exhibit G Computer Languages
Exhibit H Competitors of NMR
Exhibit I Approved Strategic Alliance Partners
Exhibit J Panel Maintenance Agreement
Exhibit K Third Party Software
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OPERATING AGREEMENT
This Operating 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, California 95035 ("NRI"), and
Nielsen Media Research, Inc., a Delaware corporation with its principal place of
business at 299 Park Avenue, New York, New York 10171 (individually, "NMR" and,
collectively with NRI, the "Parties").
B A C K G R O U N D
NMR and NRI wish to cooperate in the development, marketing, sale and
distribution of a new data collection, processing, storage, analysis and
reporting service to measure Internet usage.
Simultaneously with the execution and delivery of this Agreement, NMR and
NRI are entering into a Series C Stock Purchase Agreement pursuant to which,
among other things, NMR has become an investor in NRI (the "Investment
Agreement").
In consideration of these premises, and of the mutual promises and
conditions contained in this Agreement, NMR and NRI hereby agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meanings indicated.
1.1 "AFFILIATE" shall mean a Person that controls, is controlled by or
is under common control with another Person. For purposes of this Agreement,
"control" shall mean direct or indirect ownership of more than 50% of the voting
interest or income interest in an Entity, or such other relationship as, in
fact, constitutes actual control.
1.2 "ANCILLARY AGREEMENTS" shall mean, collectively, the License
Agreement and the Panel Maintenance Agreement.
1.3 "APPLICABLE LAWS" shall mean all foreign, federal, state and local
laws, statutes, rules and regulations which have been enacted by a governmental
authority and are in force as of the Effective Date or which are enacted by a
governmental authority and come into force during the term of this Agreement, in
each case to the extent that the same are applicable to the performance by the
Parties of their respective obligations under this Agreement.
1.4 "APPROVED INTERNET SERVICE" shall mean the Internet Service
approved for marketing and provision under the NMR Trademarks.
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1.5 "BUSINESS PANEL" shall have the meaning set forth in Section 2.6
below.
1.6 "COLLECTION SOFTWARE" shall mean NRI Proprietary Software which is
installed on a Panel Member's computer to gather data about such Panel Member's
Internet usage activities.
1.7 "DOCUMENTATION" shall mean all digital or printed documents, flow
charts, design specifications, and any other information reasonably necessary to
use and modify the NRI Proprietary Software, including any amendments and
modifications thereto, whether presently existing or created hereafter by or for
NRI during the term of this Agreement.
1.8 "ENTITY" shall mean any general partnership, limited partnership,
limited liability company, corporation, joint venture, trust, business trust,
cooperative or association, or any foreign trust or foreign business
organization.
1.9 "ENGINEERING BUDGET" shall mean the projected expenditures of the
NRI engineering group for Internet Services related to: (i) software product
development and maintenance activities, (ii) panel collection software support
and maintenance activities and (iii) hardware and licensed software support and
maintenance activities. No portion of the Engineering Budget shall include any
expenditures for Panel Maintenance Charges.
1.10 "FISCAL YEAR" shall mean NRI's fiscal year.
1.11 "GAAP" shall mean generally accepted accounting principles as in
effect from time to time in the United States of America.
1.12 "HOUSEHOLD PANEL" shall mean the Panel comprised of the initial
group of Panel Members identified by NMR on behalf of NRI consisting initially
of approximately 5,000 households selected by NMR through the NMR Sampling
Methodology.
1.13 "INTELLECTUAL PROPERTY RIGHTS" shall mean all worldwide right,
title and interest of a Person in, to and under any and all: (i) United States
or foreign patents and pending patent applications therefor, including the right
to file new and additional patent applications based thereon, including
provisionals, divisionals, continuations, continuations-in-part, reissues and
reexaminations; (ii) copyrights; and (iii) trade secrets, know-how, processes,
methods, engineering data and technical information.
1.14 "INTERNET MEASUREMENT PANEL" shall mean (i) the Household Panel,
(ii) the Business Panel (iii) any future Panel developed by or for the Parties
for purposes of monitoring, measuring, analyzing and reporting on Internet
activities in North America using the NMR Trademarks and the NRI Trademarks and
(iv) such other Panels in North America as the Parties may mutually agree in
writing.
1.15 "INTERNET SERVICE" shall mean and include NRI's existing and
future business of developing, marketing and selling market research and other
services which collect, monitor, track, measure, store, report and analyze data
relating to worldwide activities on the Internet.
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1.16 "LICENSE AGREEMENT" shall mean the Software License Agreement in
the form attached as Exhibit B hereto.
1.17 "NET CUSTOMER BILLINGS" shall have the meaning set forth in
Section 5.1.
1.18 "NET SA REVENUES" shall mean the gross amount of revenues received
from a strategic alliance partner to the Party managing the relationship for the
provision of Internet Service.
1.19 "NMR BUDGET APPROVAL ITEMS" shall have the meaning set forth in
Section 3.2.
1.20 "NMR SAMPLING METHODOLOGY" 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, in each
case as the same exist on the Effective Date or as the same may hereafter be
improved, enhanced or modified by NMR, including all existing and further
derivatives thereof. NMR Sampling Methodology shall not include any analytical
and statistical methodologies, sampling methodologies and related methods
independently developed by NRI without use of the NMR Sampling Methodology
which shall be NRI Web Tracking Technologies.
1.21 "NMR WEB TRACKING TECHNOLOGIES" shall have the meaning set forth
in Section 2.10(c) below.
1.22 "NMR TRADEMARKS" shall mean the trademarks, logos and trade names
of NMR listed on Exhibit F.
1.23 "NORTH AMERICA" shall mean and include the United States and
Canada.
1.24 "NRI TRADEMARKS" shall mean the trademarks, logos and trade names
of NRI listed on Exhibit F.
1.25 "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 Updates thereto, for
providing the Approved Internet Service. Subject to Section 4.1(c) below, NRI
Proprietary Software expressly excludes any software that NRI licenses from
Third Parties for use with the NRI Proprietary Software ("Third-Party
Software").
1.26 "NRI WEB TRACKING TECHNOLOGIES" shall have the meaning set forth
in Section 2.10(b) below.
1.27 "OPERATING COMMITTEE" shall have the meaning set forth in
Section 3.1(a).
1.28 "OPERATING COMMITTEE APPROVAL" AND "APPROVED BY THE OPERATING
COMMITTEE" shall have the meaning set forth in Section 3.1(e) below.
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1.29 "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 which is developed under this
Agreement and marketed using the NRI Trademarks and the NMR Trademarks.
1.30 "PANEL MAINTENANCE AGREEMENT" shall mean the Panel Maintenance
Agreement attached as Exhibit J hereto.
1.31 "PANEL MAINTENANCE CHARGES" shall mean amounts charged to NRI
in support of the development, enhancement, construction, operation and
administration of any Internet Measurement Panel, including fees payable to
NMR or any Third Party in connection therewith, in each case in accordance
with the quality control standards set forth in Section 2.7 below or, if
applicable, in the Panel Maintenance Agreement.
1.32 "PANEL MEMBER" shall mean 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
Approved Internet Service in accordance with the terms of the Panel Member
License Agreement set forth in EXHIBIT C.
1.33 "PERSON" shall mean any individual or Entity, and the heirs,
executors, administrators, legal representatives, successors and assigns of
the "Person" when the context so permits.
1.34 "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.
1.35 "PROPOSED BUDGET" shall have the meaning set forth in Section
3.2 below.
1.36 "SPECIFICATIONS" shall mean the functional and operational
parameters of the various components of the NRI Proprietary Software as
described in EXHIBIT A.
1.37 "TARGETED EXPENDITURES" shall mean expenditures of NRI devoted
to modifications, updates, enhancements and improvements to the Internet
Service (or any component elements thereof) for the purpose of maintaining or
improving the Internet Service. "Targeted Expenditures" shall include,
without limitation, expenditures necessary for (i) ensuring that the NRI
Proprietary Software conforms in all material respects with the requirements
of the Approved Internet Service, including, without limitation, the
Specifications in respect of the NRI Proprietary Software as described in
Exhibit A, as updated from time to time, (ii) preparing Updates thereto and
(iii) ensuring compliance with the quality control standards and procedures
described in Section 2.7 and in the Panel Maintenance Agreement with respect
to Internet
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Measurement Panels; provided, however, that Panel Maintenance Charges shall
be excluded from "Targeted Expenditures" for all purposes hereunder.
1.38 "THIRD PARTY" shall mean, with respect to a Party, any Person
that is not an Affiliate of such Party.
1.39 "THIRD-PARTY SOFTWARE" shall have the meaning set forth in the
definition of "NRI Proprietary Software" above.
1.40 "UPDATES" shall mean upgrades, updates, corrections or
modifications to the NRI Proprietary Software made by NRI, whether such
upgrades, updates, corrections or modifications are characterized as Upgrade
Releases, Version Releases, Product Releases or otherwise.
1.41 "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.
1.42 "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
integration with third parties, user demanded functionality changes, minor
changes in the interface or support for new platforms.
ARTICLE II
OPERATION OF THE INTERNET SERVICE
2.1 INTERNET SERVICE. The Parties acknowledge and agree that
the initial focus of the Approved Internet Service will be on measuring
Internet activities of participants in the Household Panel and designing and
testing the Business Panel described in Section 2.6(a) below which is
currently under development.
2.2 MARKETING; PRICING; STANDARD CONTRACTS.
(a) NRI shall undertake, at its sole cost and expense, all
marketing and sales activities with respect to the Approved Internet Service,
subject to the rights and duties allocated to NMR pursuant to the provisions of
this Agreement. Notwithstanding the foregoing, NMR shall have primary
responsibility, at its sole cost and expense, for marketing products and
services of the Approved Internet Service which are marketed and sold using the
NMR Trademarks and the NRI Trademarks to customers in the following categories,
in each case to the extent that such customers are located in North America:
(i) traditional media customers, consisting of television, radio and other media
customers (including broadcast networks, local
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TV stations, superstations, cable networks, cable systems, syndicators and
television program producers); (ii) advertising agencies (including
television advertising customers of such agencies which are then current and
active NMR customers), interactive agencies and media buyers; (iii) the
technology companies, marketers, web sites and web-only agencies listed on
EXHIBIT E hereto; and (iv) such other customers as may be determined by the
Operating Committee. With respect to sales to customers located outside
North America, it is the intention of the Parties that, for any country or
territory in which a strategic alliance has been entered into as provided in
Section 2.5 below, the strategic alliance partner appointed for such country
or territory shall have primary responsibility for all marketing and sales
activities within such country or territory. It is the further intention of
the Parties that, to the extent possible, agreements entered into with
strategic alliance partners will provide that all Internet usage data
generated by such partners shall be in a format that is compatible with the
data storage and management systems of each of the Parties and such Internet
usage data shall be used by the Parties solely for sales to such Party's
customers in North America.
(b) The Operating Committee will determine all pricing and
rate card matters with respect to the Approved Internet Service, including,
without limitation, any discounts, rebates and other concessions offered to
customers. The Parties will coordinate their marketing and selling efforts so
as to maintain consistent pricing policies and practices among the different
customers for which marketing responsibilities have been allocated hereunder.
(c) For contracts entered into after thirty (30) days after
the Effective Date or extended after such date with end users of the Internet
Usage Data to which NRI is not a signatory, NMR agrees to use NRI's standard
form agreement for its own customers, which may change from time to time (NRI
is responsible for providing NMR with any modifications of its standard
customer agreement) or an agreement drafted by NMR which is reasonably
acceptable to NRI; provided, however, that NRI shall be a third party
beneficiary of such customer agreement. Without permission of NRI, which
shall not be unreasonably withheld, NMR shall not amend the provisions of
such customer contracts which deal with scope of data use, indemnity,
limitations of liability or impose economic or other obligations on NRI. NRI
shall provide to NMR copies of all executed customer contracts not previously
provided to NRI at least once a month.
2.3 TARGETED EXPENDITURES. NRI agrees that the proposed amount
of Targeted Expenditures reflected in the Proposed Budget submitted to the
Operating Committee in connection with each Proposed Budget shall represent
not less than 50% of the Engineering Budget of NRI for the Fiscal Year
covered by such Proposed Budget; provided, however, that NRI shall have the
right to submit a Proposed Budget with a lower percentage allocated to any
NMR Budget Approval Items which are approved by the Board of Directors in
accordance with Section 3.2 to be implemented in full. Targeted Expenditures
if such decrease is Approved by the Operating Committee in response to a
change in market conditions occurring prior to the due date for such Proposed
Budget. NRI shall cause all expenditures allocated to Targeted Expenditures.
NMR's sole and exclusive remedy for any non-willful breach of the obligation
contained in the preceding sentence shall be to require NRI (through an
injunction or similar action or otherwise) to spend fifty percent (50%) of
its Engineering Budget (but no less than 50%
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of such Engineering Budget) on Targeted Expenditures; provided however that
one half of all costs and expenses incurred by NMR in enforcing such
obligation of NRI if NMR prevails (including, without limitation, reasonable
attorney fees) shall be reimbursed by NRI.
2.4 PANEL LOGISTICS.
(a) NMR has heretofore developed the Household Panel on
behalf of NRI utilizing the NMR Sampling Methodology, and NRI hereby accepts
delivery of such Household Panel for use in connection with the Approved
Internet Service and agrees that such Household Panel complies with all
specifications requested by NRI with respect thereto. Simultaneously with
the execution and delivery of this Agreement, NRI has paid the amount of
$2,500,000 for Maintenance Services provided through June 30, 1999 (subject
to revision by NMR in respect of fees for Maintenance Services rendered in
June 1999 within thirty (30) days of the Effective Date) to NMR in
immediately available funds, representing (i) that portion of the costs
incurred by NMR in connection with the development of the Household Panel
which NRI has agreed to reimburse to NMR, plus (ii) all Panel Maintenance
Charges incurred by NMR with respect to the Household Panel through the
Effective Date. Effective upon NMR's receipt of such payment, NMR shall
transfer all right, title and interest worldwide in and to the Household
Panel to NRI, subject to NMR's continued ownership of the NMR Sampling
Methodology.
(b) Simultaneously with the execution and delivery of this
Agreement, the Parties shall enter into the Panel Maintenance Agreement. As
further provided in the Panel Maintenance Agreement, NMR shall have
responsibility for the maintenance of the Household Panel during the term of
such Agreement. All Panel Maintenance Charges shall be reimbursed by NRI to
NMR in accordance with the terms of the Panel Maintenance Agreement.
(c) The Operating Committee shall consider (i) all updates,
modifications or other changes which are proposed to be made by either Party
to the Household Panel and (ii) the matters described in Section 2.7(b) for
all future Internet Measurement Panels which are proposed to be developed by
either Party for use in connection with the Approved Internet Service, all of
which matters shall be subject to Operating Committee Approval (subject,
however, to the casting (I.E., controlling) vote granted in favor of NMR
pursuant to Section 3.1(e) below); provided, however, that if such proposed
service does not become part of the Approved Internet Service, the service
shall not be governed by the Operating Committee.
(d) It is the intention of the Parties that all products and
services offered by NRI as part of the Internet Service in North America
shall be marketed and sold under the NRI Trademarks and, if consented to by
NMR as hereinafter provided, the NMR Trademarks. The services of developing,
marketing and selling audience measurement and e-commerce strategies using
information derived from the Household Panel and Business Panel shall be
deemed approved as part of the Approved Internet Service. NMR's
representatives on the Operating Committee shall be informed of all products
and services which NRI proposes to offer as part of the Internet Service in
North America. Prior to the marketing and sale of any such product or
service, NMR shall advise NRI in writing whether or not it consents to the
use of the NMR Trademarks in connection therewith. The Parties' use of the
NMR Trademarks and the NRI
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Trademarks in connection with the Approved Internet Service shall be governed
by the provisions of Article VI below.
2.5 STRATEGIC ALLIANCES.
(a) Each Party shall have the right to propose to the Board
of Directors of NRI, through such Party's representatives on the Operating
Committee, the establishment of strategic alliances with Third Parties to
assist in the marketing and development of the Approved Internet Service.
The Operating Committee shall meet within thirty (30) days of the Effective
Date to discuss the strategy for extending the Internet Service to countries
outside of North America. NRI will consult with the Operating Committee from
time to time on the terms of strategic alliances in order to take advantage
of the experience of the members of the Operating Committee in such matters.
However, the management of NRI shall be responsible for selecting,
negotiating and operating such strategic alliances. Notwithstanding the
foregoing, any proposed strategic alliance which involves the Approved
Internet Service with any of the Persons listed in EXHIBIT H hereto shall
require the approval of NMR (expressed through its representatives on the
Operating Committee) prior to the submission of such proposed strategic
alliance to the Board of Directors of NRI. NMR shall have the right to make
additions to EXHIBIT H from time to time to reflect additional Persons that
become competitive with NMR subject to approval by NRI in writing. EXHIBIT I
hereto shall include the list of Approved Strategic Alliance Partners. The
Operating Committee at the suggestion of either Party shall have the right to
make additions to the list of Approved Strategic Alliance Partners on EXHIBIT I
from time to time to reflect additional potential strategic alliance
partners which approval shall not be unreasonably withheld. NMR shall have
the right to request deletions from EXHIBIT I from time to time to reflect
its disapproval of any of the Persons set forth thereon subject to prior
approval by NRI in writing. NRI may negotiate and enter into strategic
alliances (whether by license, joint venture or other means) with the
Approved Strategic Alliance Partners without approval from the Operating
Committee or NMR. For a company which is not an Approved Strategic Alliance
Partner, NRI must obtain the approval of the Operating Committee.
(b) If NRI desires to have NMR, and NMR agrees to, manage
the strategic alliance, Net SA Revenues derived from any such strategic
alliance shall be split with NRI on a 50-50 basis.
2.6 PRODUCT STRATEGIES. BUSINESS PANEL. NMR acknowledges that NRI
is developing a business panel as part of its Approved Internet Service (the
"Business Panel").
(b) MONITOR PLUS; AEM. It is the intention of the Parties
to expand into the area of North American advertising expenditure measurement
for the Internet. Subject to the other terms of this Section, such
advertising measurement data, when available for commercial introduction,
will be marketed and sold in North America in conjunction with NMR's Monitor
Plus service under the NMR Trademarks and the NRI Trademarks and not in
conjunction with any other Third Party product or service; provided, however,
that NRI may itself market and distribute such advertising expenditure
measurement data to its customers, but not in conjunction with any other
Third Party product or service. The Parties shall agree in good faith upon
annual
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sales goals for such NMR's Monitor Plus service within one year of the
Effective Date and each calendar year thereafter. If NMR fails to
consistently meet such sales goals, NRI may market and sell the advertising
expenditure data relating to such service in conjunction with other Third
Parties and, under appropriate agreed upon circumstances, may terminate NMR's
rights to distibute such data. The Net Customer Billings derived from such
advertising service in North America shall be allocated as follows: 60% to
NMR and 40% to NRI, provided that such allocation shall be reconsidered by
the Parties in good faith based upon the Parties' actual experience in
marketing, selling and distributing such expanded advertising service.
2.7 PRODUCT QUALITY CONTROL.
(a) DATA PROCESSING AND REPORTS.
(i) All data obtained by NRI which is marketed using
the NMR Trademarks and the NRI Trademarks from Panel Members shall be
collected, processed, stored and analyzed, and all reports and analyses
supplied to customers of the Approved Internet Service shall be prepared, by
NRI in accordance with edit rules, protocols, analytical methodologies and
quality control standards established from time to time by Operating
Committee Approval.
(ii) The Parties shall cooperate to ensure that the
quality control standards Approved by the Operating Committee are maintained
with respect to all aspects of the Approved Internet Service.
(b) PANELS. The selection, maintenance and updating of all
Internet Measurement Panels used in connection with the Approved Internet
Service shall be effected in compliance with the NMR Sampling Methodology, as
applied by the Operating Committee from time to time; provided, however, that
NMR shall have a casting (I.E., controlling) vote with respect to all matters
relating to the Internet Measurement Panels used in connection with this
Agreement, including, without limitation, the methodology for the
identification and selection of participants in such Panels, the maintenance
of such Panels, the establishment and application of specifications for such
Panels and the implementation of any material change or modification to such
specifications.
2.8 STAFFING. Each Party shall have and maintain such personnel
(including, without limitation, computer programmers, engineers and technical
personnel) as are sufficient to carry out its responsibilities under this
Agreement.
2.9 SITE INSPECTIONS. Each of the Parties (and its
representatives) shall have the right to visit and inspect the research,
development, manufacturing, distribution and data collection, storage and
management facilities of the other Party at its own expense in order to
verify the other Party's compliance with the terms and conditions of this
Agreement and to ensure compliance with quality control standards established
by the Operating Committee and by Third Party accrediting agencies or similar
authorities. Each Party shall have the right to conduct such inspections at
least twice per calendar year or more frequently as may be required to comply
with accrediting agency audit standards. All such visits shall occur at
mutually convenient times and
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dates during normal business hours and will be carried out in such a way as
to not unreasonably disrupt the operations of the Party being inspected. All
information obtained by the inspecting Party during such visits shall be
subject to the confidentiality requirements of this Agreement.
2.10 OTHER TECHNOLOGIES.
(a) The Parties do not intend to conduct any joint
technology development activities with each other; rather, the Parties intend
to retain the right to continue to develop their respective proprietary
technologies relating to Internet measurement independently from each other,
subject only to the remaining provisions of this Section 2.10.
(b) Except for the rights set forth in this Agreement, the
License Agreement or any other Ancillary Agreement relating to the Approved
Internet Service, NMR is not acquiring any license or other rights in the NRI
Proprietary Software or in any other software or proprietary technologies
owned or licensed by NRI as of the date of this Agreement or as may be
developed or acquired by NRI during the term of this Agreement in the field
of Internet measurement applications (collectively, the "NRI Web Tracking
Technologies"), and NRI shall retain the unrestricted right to develop and
exploit the NRI Proprietary Software and such NRI Web Tracking Technologies
for its own use and account, subject only to the provisions of this
Agreement, the License Agreement or any other Ancillary Agreement with
respect to NMR's rights to use the NRI Proprietary Software in connection
with the Approved Internet Service.
(c) NRI hereby acknowledges and agrees that NMR has
developed, and will continue to develop, certain proprietary technologies in
the field of Internet tracking and measurement and related applications
through a variety of methods, including personal computers on a stand-alone
basis, television and other "convergence" platforms and other devices and
methodologies (collectively, the "NMR Web Tracking Technologies"), certain of
which are listed in EXHIBIT G hereto. NRI is not acquiring any license or
other rights in any NMR Web Tracking Technologies owned or licensed by NMR as
of the date of this Agreement or as may be developed or acquired by NMR
during the term of this Agreement, and NMR shall retain the unrestricted
right to develop and exploit all such NMR Web Tracking Technologies for its
own use and account.
(d) The Parties may discuss with each other the possibility
of granting cross-licenses with respect to each other's web tracking
technologies during the term of this Agreement under such licensing
arrangements (including provisions governing the payment of royalties) as may
be mutually agreed by the Parties; provided, however, that neither Party
shall be under any obligation to enter into any such cross-licenses, or to
grant any rights in its proprietary technologies to the other Party, and
neither Party shall have any liability or obligation to the other Party (or
to the shareholders or other Affiliates of the other Party or any other
Person) for its failure or refusal to grant any such cross-licenses or rights
to the other Party or to make any other opportunity or right available to the
other Party, all of which claims are hereby irrevocably waived by the Parties.
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ARTICLE III
OPERATING COMMITTEE
3.1 OPERATING COMMITTEE. The Parties shall form an operating
committee (the "Operating Committee") to coordinate the activities of the
Parties under this Agreement. The Operating Committee will be comprised of
four members, two of whom shall be representatives of NMR and two of whom
shall be representatives of NRI, provided that the representatives of each
Party shall cast a single vote on behalf of such Party. A quorum shall
consist of the attendance, in person, by video conference or by conference
telephone call, of at least one representative of each Party authorized to
cast the vote of that Party on issues that come before the Operating
Committee. Each Party shall use reasonable efforts to assure that its
representatives so authorized to act on its behalf are present for all
meetings of the Operating Committee.
(b) The initial members of the Operating Committee are
identified on EXHIBIT D hereto. Notwithstanding the foregoing, each Party's
representatives shall serve at the discretion of such Party and may be
substituted for or replaced at any time by such Party upon written notice to
the other Party.
(c) The Operating Committee shall hold meetings in person,
by video conference or by conference telephone call at least monthly during
the first year of this Agreement, and at least quarterly thereafter (or as
may be otherwise agreed by the Parties). In case of need, either Party may
convene a meeting at the offices of the other Party on at least 20 days'
prior written notice or such shorter period as the other Party may agree.
Where practicable, the proposed agenda for each meeting of the Operating
Committee shall be circulated prior to the meeting. All proceedings of the
Operating Committee shall be summarized in written minutes to be prepared
jointly by the members of the Operating Committee, and such minutes shall be
sent regularly to all members for their signatures. The procedures
established in respect of the Operating Committee may be amended upon
Operating Committee Approval.
(d) The responsibilities of the Operating Committee shall
consist of the following matters:
(i) the quarterly status review of business and
marketing plans for NRI's development of the Approved Internet Service;
(ii) the consideration of Proposed Budgets and the
approval of the NMR Budget Approval Items by NMR's representative on the
Operating Committee, as further provided in Section 3.2;
(iii) the establishment of standards for the use of
each Party's trademarks as provided in Article VI; and
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(iv) all matters described in Article II as being subject
to Operating Committee Approval.
(e) All matters to be considered by the Operating Committee
shall be submitted to the members of the Operating Committee in the form of
proposed actions by the proposing Party. Only those proposed actions which
receive the affirmative vote of each Party's representatives on the Operating
Committee, voting in the manner specified in Section 3.1(a) above (I.E.,
unanimous approval), shall be deemed to have received "Operating Committee
Approval" for purposes of this Agreement. Any matter which has received such
favorable vote shall be deemed to have been "Approved by the Operating
Committee." Notwithstanding the foregoing, if a deadlock exists (I.E.,
unanimous approval of each Party's members has not been obtained), NRI and
NMR, respectively, shall be granted a special casting (I.E., controlling)
vote with respect to the following matters:
NRI -- Resolution of any dispute arising under
Section 2.2(a)(iv) with respect to the
allocation of marketing responsibilities for
any customer for products or services to be
provided using the NMR Trademarks and the NRI
Trademarks (such casting vote to be exercised
upon the recommendation of the Vice
President-Sales of NRI).
-- Resolution of any dispute relating to the
size of the Household Panel or any other
Internet Measurement Panel (such casting vote
to be exercised by the Chief Executive
Officer of NRI).
NMR -- All functions described in Sections 2.4(c)
and 2.7(b) above relating to the Internet
Measurement Panels, except as to the size
thereof.
-- Approval of any NMR Budget Approval Items.
(f) In the event that a deadlock exists for any matter which
is not subject to the special tie-breaking procedures described in Section
3.1(e) above, and such deadlock continues for a period of 15 days after the
date on which the matter is first submitted to the Operating Committee, the
matter shall be referred to the chief executive officers of NRI and NMR for
resolution. The chief executive officers shall meet within thirty (30) days
of such notice. If the deadlock continues for fifteen (15) days after such
meeting, the matter shall not be deemed to be Approved by the Operating
Committee and neither Party shall have any liability or obligation to the
other Party for any failure or refusal to approve any such matter submitted
to the Operating Committee. For the avoidance of doubt, neither Party shall
have the right to invoke the arbitration procedures in Article IX with
respect to any such deadlock.
3.2 ANNUAL BUDGETS. Commencing with Fiscal Year 2000, NRI shall
prepare and submit to the Operating Committee a proposed budget for the
operation and maintenance of the Approved Internet Service for the following
Fiscal Year (a "Proposed Budget"). The Proposed Budget shall include, among
other things, NRI's proposal for (i) Targeted Expenditures (subject
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to the obligations of NRI under Section 2.3); (ii) Panel Maintenance Charges
(except as provided in the Panel Maintenance Agreement); (iii) NMR's portion
of the projected marketing and sales activities for NMR and projected Net
Customer Billings in respect of customers for which NMR has been allocated
primary responsibility hereunder (collectively, the "NMR Budget Approval
Items"). Commencing with Fiscal Year 2000, each Proposed Budget and each NMR
Budget Approval Item shall be delivered to the members of the Operating
Committee at least 20 days prior to the meeting of the Board of Directors at
which such Proposed Budget will be considered and in any event not more than
60 days after the start of the Fiscal Year to which it relates for
consideration at the next meeting of the Operating Committee. Prior to the
submission of any Proposed Budget to the Board of Directors of NRI, NMR shall
have the right to approve (or disapprove) (through its representatives on the
Operating Committee) each of the NMR Budget Approval Items. If the Board of
Directors of NRI disapproves any NMR Budget Approval Item which has
previously been approved by NMR, such item shall be referred back to NMR for
further consideration in light of the reasons given for the Board of
Directors' disapproval, and such revised item will not be implemented until
so approved by NMR. For the avoidance of doubt, NRI acknowledges and agrees
that NMR shall have the right to disapprove any NMR Budget Approval Item
which fails to provide adequate support for the quality control standards
contemplated under Section 2.7.
ARTICLE IV
TECHNOLOGY OWNERSHIP RIGHTS
4.1 NRI OWNERSHIP RIGHTS. The Parties acknowledge and agree that,
as between NRI and NMR, all right, title and interest (including, without
limitation, all Intellectual Property Rights) in and to the NRI Proprietary
Software and the NRI Web Tracking Technologies shall be and remain vested in
NRI, subject, however, in the case of the NRI Proprietary Software, to the
license rights granted to NMR under the License Agreement.
(b) NRI represents and warrants to NMR that all Third-Party
Software which is currently used in connection with the NRI Proprietary
Software is readily available to NMR through normal commercial channels. A
list of all such Third-Party Software is set forth on EXHIBIT K hereto. The
foregoing representation and warranty is true and correct as of the Effective
Date and, subject only to Section 4.1(c) below, shall remain true and correct
throughout the term of this Agreement and the License Agreement.
(c) If NRI proposes to acquire license or other rights in
any Third-Party Software which would cause the foregoing representation and
warranty not to be true and correct, it shall provide written notice to NMR.
In such event, NRI shall use reasonable efforts to obtain, for the benefit of
NMR, license or other rights in such Third-Party Software which are
substantially similar (in terms of scope of rights granted and royalties, if
any, payable therefor) to the rights of NRI in such software; provided,
however, that NMR shall be responsible for any royalty or other amounts which
are payable solely with respect to any rights which are licensed in favor of
NMR (and which are accepted by NMR). NMR shall pay NRI the reasonable
out-of-
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pocket costs and expenses related to such negotiations to the extent such
expenses are incurred seeking to obtain rights on behalf of NMR.
4.2 NMR OWNERSHIP RIGHTS. The Parties acknowledge and agree that,
as between NRI and NMR, all right, title and interest (including, without
limitation, all Intellectual Property Rights) in and to the NMR Web Tracking
Technologies and the NMR Sampling Methodology shall be and remain vested in
NMR.
(b) NMR shall provide NRI and its authorized personnel
(including consultants) with access to the NMR Sampling Methodology, for
their internal use only, to the limited extent necessary to enable NRI to
work with NMR in the development of new or modified Internet Measurement
Panels in the manner contemplated under Section 2.4(c). NRI's access and use
rights with respect to the NMR Sampling Methodology shall not apply to any
panels of NRI that do not constitute Internet Measurement Panels or to any
other aspects of the Internet Service other than the Approved Internet
Service.
(c) NRI acknowledges and agrees that the NMR Sampling
Methodology constitute valuable trade secrets of NMR 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 NMR 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 NMR Sampling Methodology; (iii) otherwise disclose or
permit the use of or access to the NMR Sampling Methodology to or by any
other Person; (iv) modify, adapt or translate the NMR Sampling Methodology;
or (v) remove any proprietary or copyright legend from any portion of the NMR
Sampling Methodology. All right, title and interest in the Internet usage
data obtained from the Internet Measurement Panels will be owned by NRI,
subject to the rights of NMR to store, access, sell, distribute and use such
Internet usage data to market the Approved Internet Service in accordance
with Section 2.2 above.
(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 4.2(c) above (to
the extent that they have been provided access to the NMR Sampling
Methodology), which shall include, at a minimum, making NMR a third-party
beneficiary of all confidentiality covenants entered into between NRI and any
such Persons who obtain access to the NMR Sampling Methodology from NRI. In
any event, NRI shall be responsible for any breach of the foregoing by its
employees.
ARTICLE V
NET CUSTOMER BILLINGS
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5.1 PAYMENT PERCENTAGES. Except as otherwise provided in this
Agreement, all Net Customer Billings derived from the marketing, sale and
distribution of the Approved Internet Service shall be allocated to the
Parties in the following respective payment percentages: (i) NMR -- 35%, and
(ii) NRI -- 65%. As used herein, the term "Net Customer Billings" shall mean
the gross amount billed to each customer of the Approved Internet Service
located in North America for which marketing responsibility is allocated to
NMR hereunder, as reflected in invoices issued by NRI to such customer,
whether pursuant to contracts with such customers or otherwise, less only
sales, excise or value added taxes included in such invoice to the extent
separately reflected thereon. Except as provided above for Net Customer
Billings, NRI shall be entitled to 100% of all amounts billed to customers of
the Approved Internet Service.
5.2 PAYMENTS TO NMR. Within ten days after the end of each calendar
month during the term of this Agreement, NRI shall prepare and submit to NMR a
report setting forth a detailed summary of (i) all sales and subscriptions made
to customers of the Approved Internet Service during such calendar month,
together with an indication of those sales for which NMR is entitled to receive
a commission hereunder and the relevant commission percentage applicable
thereto, (ii) the length of the contract (in months) to which such payment
relates and (iii) the total amount billed to such customers during such calendar
month. Not later than fifteen (15) days after the end of the calendar quarter
in which such report is delivered to NMR, NRI shall pay to NMR an amount equal
to the product obtained by multiplying the relevant payment percentage for such
customer (as identified in such report) times the total amount paid by and
collected from such customer during the relevant calendar quarter for sales
subject to NMR's commission hereunder. Subject to NMR's other rights hereunder,
NRI shall pay interest at the prime rate on any late payments to NMR. For the
avoidance of doubt, NMR shall have the right to receive the full amount of such
payment notwithstanding that NRI may be obligated to defer the recognition of a
portion of the Net Customer Billings derived from such sale or subscription
until a later date under GAAP.
5.3 RIGHT OF INSPECTION. NRI agrees to keep accurate books of account
and records covering all transactions relating to sales of and subscriptions to
the Approved Internet Service and the computation of Net Customer Billings
hereunder. NMR and its duly authorized representatives shall have the right,
after reasonable notice and during regular business hours, to examine such books
of account and records and all other documents and materials in NRI's possession
or under its control with respect to the Approved Internet Service and shall
have free and full access thereto for such purposes and for the purpose of
making extracts therefrom. All such books of account and records shall be kept
available for at least two (2) years after the expiration or termination of this
Agreement. In the event that NMR or its duly authorized representative shall
discover a discrepancy of seven and one-half percent (7.5%) or more pursuant to
any such examination, NRI shall pay to NMR the reasonable cost of such
examination.
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ARTICLE VI
TRADEMARKS; LICENSES
6.1 TRADEMARKS.
(a) LICENSES. (i) During the term of this Agreement and as
provided in Section 7.2(c), NRI hereby grants to NMR, and NMR hereby accepts
from NRI, a nonexclusive, nontransferable, limited, royalty-free license,
without the right to sublicense, to use the NRI Trademarks solely to provide,
market and sell the Approved Internet Service in North America in accordance
with the terms of this Agreement. If NMR consents to the use of the NMR
Trademarks in connection with the products and services of the Approved Internet
Service (as set forth in Section 2.4(d)), NMR agrees to use the NRI Trademarks
in conjunction with the NMR Trademarks in connection with all such products and
services.
(ii) During the term of this Agreement and as provided in
Section 7.2(c), NMR hereby grants to NRI, and NRI hereby accepts from NMR, a
nonexclusive, nontransferable, limited, royalty-free license, without the right
to sublicense, to use the NMR Trademarks in North America solely (a) to develop
the Household Panel (and any other Internet Measurement Panel developed using
the NMR Sampling Methodology) and (b) to market and sell products and services
derived from Internet Measurement Panels which shall include, at a minimum, the
services set forth in the second sentence of Section 2.4(d) (the uses described
in sub-clauses (a) and (b) being referred to as the "Permitted NMR Trademark
Uses"), in connection with the Approved Internet Service in accordance with the
terms of this Agreement.
(b) QUALITY CONTROL. (i) The nature and quality of the
Approved Internet Services supplied in connection with the NMR Trademarks shall
conform to the standards of the Approved Internet Service on the Effective Date
as modified from time to time by the Operating Committee. NRI will cooperate
with NMR in facilitating its monitoring and control of the nature and quality of
such services, and will supply NMR with specimens of use of the NMR Trademarks
upon request. In the event that NRI's use of the NMR Trademarks does not comply
with the Operating Committee's quality standards, NRI shall modify its use of
the NMR Trademarks and shall submit corrected specimens of use to NMR within
thirty (30) days of notice by NMR.
(ii) The nature and quality of the Approved Internet
Services marketed by NMR in connection with the NRI Trademarks shall conform to
the standards of the Approved Internet Service on the Effective Date as modified
from time to time by the Operating Committee. NMR will cooperate with NRI in
facilitating its monitoring and control of the nature and quality of such
services, and supply NRI with specimens of use of the NRI Trademarks upon
request. In the event that NMR's use of the NRI Trademarks does not comply
with the Operating Committee's quality control standards, NMR shall modify its
use of the NRI Trademarks and shall submit corrected specimens of use to NRI
within thirty (30) days of notice by NRI.
(c) CERTAIN ACKNOWLEDGMENTS. (i) NRI acknowledges and agrees
that NMR has the right to use the NMR Trademarks as provided in this Agreement.
Except as prohibited by
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law, NRI agrees that it will not do anything inconsistent with such ownership
either during the term of this Agreement or thereafter. NRI agrees that use
of the NMR Trademarks by NRI shall inure to the benefit of and be solely on
behalf of NMR. NRI acknowledges that its utilization of the NMR Trademarks
will not create or confer any right, title or interest in the NMR Trademarks
in NRI.
(ii) NMR acknowledges and agrees that NRI is the sole and
exclusive owner of the NRI Trademarks. Except as prohibited by law, NMR agrees
that it will not do anything inconsistent with such ownership either during the
term of this Agreement or thereafter. NMR agrees that use of the NRI Trademarks
by NMR shall inure to the benefit of and be solely on behalf of NRI. NMR
acknowledges that its utilization of the NRI Trademarks will not create or
confer any right, title or interest in the NRI Trademarks in NMR.
(d) RESTRICTIONS ON USE. (i) 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 NMR Trademarks. NRI shall use the NMR Trademarks so that they
create a separate and distinct impression from any other trademark that may be
used by NRI, except for the use of the combined words "Nielsen//NetRatings" in
connection with the Permitted NMR Trademark Uses pursuant to the standards set
forth in Section 6.1(b). NRI agrees that it will not contest any NMR
registration or application for any of the NMR Trademarks. NRI shall comply
with all applicable laws and regulations pertaining to the proper use and
designation of the NMR Trademarks.
(ii) NMR agrees that it will not adopt or use as part or
all of any corporate name, trade name, trademark, service mark or certification
mark, any trademark or other mark confusingly similar to the NRI Trademarks.
NMR shall use the NRI Trademarks so that they create a separate and distinct
impression from any other trademark that may be used by NMR, except for the use
of the combined words "Nielsen//NetRatings" in connection with the Permitted NMR
Trademark Uses pursuant to the standards set forth in Section 6.1(b). NMR
agrees that it will not contest any NRI registration or application for any of
the NRI Trademarks. NMR shall comply with all applicable laws and regulations
pertaining to the proper use and designation of the NRI Trademarks.
(e) NO REGISTRATION. (i) NRI agrees not to apply to register
any of the NMR Trademarks, or any words or combination of words containing the
NMR Trademarks (including, without limitation, "Nielsen//NetRatings") or any
confusingly similar designation, anywhere in the world. If any application for
registration is or has been filed by or on behalf of NRI in any country and
relates to any mark which, in the reasonable opinion of NMR, is confusingly
similar, deceptive or misleading with respect to, or dilutes or in any way
materially damages, any of the NMR Trademarks, NRI shall, at NMR's request,
abandon all use of such mark and withdraw any registration or application for
registration thereof. Nothing in this Section 6.1(e)(i) shall require NRI to
abandon or withdraw any of the existing NRI Trademarks listed on EXHIBIT F.
(ii) NMR agrees not to apply to register any of the NRI
Trademarks or any words or combination of words containing the NRI Trademarks
(including, without
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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 NMR 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, NMR shall, at NRI's request, abandon all use of such
mark and withdraw any registration or application for registration thereof.
Nothing in this Section 6.1(e)(ii) shall require NMR to abandon or withdraw
any of the existing NMR Trademarks listed on EXHIBIT F.
(f) CERTAIN REPRESENTATION AND WARRANTIES. (i) NRI owns all
right, title and interest in the NRI Trademarks in the United States free and
clear of any liens, pledges or other encumbrances. NRI is the sole owner of, or
applicant for, all registrations and applications for registrations of the NRI
Trademarks with any governmental or other authority in the United States, all of
which are valid and in full force and effect. To the knowledge of NRI, none of
the NRI Trademarks infringes the trademarks of any Third Party. There are no
pending or threatened litigations, claims or challenges relating to the NRI
Trademarks.
(ii) NMR has the right to use the NMR Trademarks as
provided in this Agreement, free and clear of any liens, pledges or other
encumbrances in the following jurisdictions: United States and Canada. NMR is
the sole owner of, or applicant for, all registrations and applications for
registrations of the NMR Trademarks with any governmental or other authority in
such jurisdictions, all of which are valid and in full force and effect. To the
knowledge of NMR, none of the NMR Trademarks infringes the trademark of any
Third Party. There are no pending or threatened litigations, claims or
challenges relating to the NMR Trademarks.
6.2 ACKNOWLEDGMENT. 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 NMR Trademark Uses under the
standards set forth in Section 6.1(b). The intent of the Parties is not to
create a jointly owned trademark or servicemark with respect to
"Nielsen//NetRatings". Neither Party shall claim any ownership interest in the
combined words in "Nielsen//NetRatings", and neither Party shall register the
combined words "Nielsen//NetRatings" as a trademark in any jurisdiction.
ARTICLE VII
TERMINATION
7.1 TERMINATION. This Agreement may be terminated as follows:
(a) by the mutual written consent of NRI and NMR;
(b) by either Party:
(i) upon the material breach of any provision of this
Agreement by the other Party which material breach remains uncured
thirty (30) days after written notice thereof to such other Party;
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(ii) upon thirty days' written notice if NMR's beneficial
ownership of the issued and outstanding shares of Common Stock on
a fully diluted basis (as defined in the Addendum No. 1 to
Restated Stockholders Agreement of even date by and among NMR, NRI
and the other parties set forth therein (the "Addendum")) is less
than 5.0% for any reason other than as set forth in Section
7.1(b)(iii); or.
(iii) if NMR's beneficial ownership of the issued and
outstanding shares of Common Stock on a fully diluted basis (as
defined in the Addendum) is less than 5.0% because NRI exercises
its right to purchase NMR's shares and options due to a
Competitive Takeover (as defined in the Addendum).
7.2 EFFECT OF TERMINATION. In the event of any termination of this
Agreement, NRI shall pay NMR any amounts owed to NMR pursuant to Article V or
any other provision of this Agreement for services provided prior to the
effective date of such termination (the "Termination Date"). In addition, in
the event of any termination of this Agreement:
(a) by NRI pursuant to Section 7.1(b)(i) above:
(i) NRI shall have the right, for a period of one year
from the Termination Date, (A) to access and to use the NMR
Sampling Methodology reasonably necessary to continue to provide
the Approved Internet Service (including, without limitation,
maintaining Panels); and (B) to continue to use the NMR Trademarks
pursuant to the license granted in Article VI in accordance with
the quality control provisions in effect on the Termination Date;
provided, however, that NRI may not represent to potential Panel
Members that it is NMR or an agent of NMR;
(ii) The license granted to NMR pursuant to Article VI to
use the NRI Trademarks shall terminate as of the Termination Date;
(iii) NMR shall be obligated, upon the written request of
NRI, (A) for a period of up to one year from the Termination Date,
to provide the Maintenance Services (as defined in the Panel
Maintenance Agreement) in respect of any Panels in existence on
the Termination Date at the cost of providing such services
determined in accordance with Article III of the Panel Maintenance
Agreement and (B) assigning to NRI , to the extent assignable, any
contracts between NMR and a Third Party relating to the provision
of the Approved Internet Service.
(iv) NRI shall be obligated (A) to continue to perform
under written customer contracts for which primary marketing
responsibility was allocated to NMR as of the Termination Date and
(B) to pay to NMR any portion of Net Customer Billings in respect
of such contracts to which NMR would have been entitled under, and
in accordance with the payment terms of, Article V above.
(b) by NMR pursuant to Section 7.1(b)(i) above:
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(i) NMR shall have the right, (A) to terminate the Panel
Maintenance Agreement effective upon written notice thereof to
NRI; (B) for a period of one year from the Termination Date, (1)
to continue to use the NRI Trademarks pursuant to the license
granted in Article VI and subject to the quality control standards
in effect as of the Termination Date and (2) to continue to
distribute the Collection Software (as defined in the License
Agreement) in connection with the provision of any Internet
Service;
(ii) The license granted to NRI pursuant to Article VI to
use the NMR Trademarks shall terminate as of the Termination Date;
(iii) NRI shall be obligated, upon the request of NMR, to
provide NMR with a copy of the Object Form (as defined in the
License Agreement) of the Back End Software (as defined in the
License Agreement), and NMR shall have the rights to use the Back
End Software set forth in the License Agreement.
(iv) NRI shall be obligated (A) to continue to perform
under written customer contracts for which primary marketing
responsibility was allocated to NMR as of the Termination Date
entered into on or prior to the Termination Date; and (B) to pay
to NMR any portion of Net Customer Billings in respect of such
contracts to which NMR would have been entitled under, and on the
payment terms set forth in, Article V above.
(v) NRI shall be obligated (A) to perform under written
customer contracts entered into that are executed between NMR and
a Third Party during the one-year period immediately after the
Termination Date, under written customer contracts containing
terms substantially the same as the terms of the standard customer
contracts as of the Termination Date, until the end of such
one-year period; and (B) to pay to NMR 50% of the Net Customer
Billings in respect of such contracts, on the payment terms set
forth in Article V above.
(c) by either Party pursuant to Section 7.1(b)(ii) or (iii)
above:
(i) NRI shall have the right, for a period of one year
from the Termination Date, (A) to access and to use the NMR
Sampling Methodology reasonably necessary to continue to provide
the Approved Internet Service (including, without limitation,
maintaining Panels); and (B) to continue to use the NMR Trademarks
pursuant to the license granted in Article VI in accordance with
the quality control provisions in effect on the Termination Date;
provided, however, that NRI may not represent to potential Panel
Members that it is NMR or an agent of NMR;
(ii) The license granted to NMR pursuant to Article VI to
use the NRI Trademarks shall terminate as of the Termination Date;
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(iii) NMR shall be obligated, upon the written request of
NRI, (A) for a period of up to one year from the Termination Date,
to provide the Maintenance Services (as defined in the Panel
Maintenance Agreement) in respect of any Panels in existence on
the Termination Date at the cost (or, if the termination is made
pursuant to Section 7.1(b)(iii), at 120% of the cost) of providing
such services determined in accordance with Article III of the
Panel Maintenance Agreement; ; and (B) assigning to NRI, to the
extent assignable, any contracts between NMR and a Third Party
relating to the provision of the Approved Internet Service.
(iv) NRI shall be obligated (A) to continue to perform
under written customer contracts executed prior to the Termination
Date for which primary marketing responsibility was allocated to
NMR as of the Termination Date and (B) to pay to NMR any portion
of Net Customer Billings in respect of such contracts to which NMR
would have been entitled under, and in accordance with the payment
terms of, Article V above.
7.3 SURVIVAL. All provisions of this Agreement that, by their sense
or context, are intended to survive termination shall so survive any termination
of this Agreement.
ARTICLE VIII
DISPUTE RESOLUTION
8.1 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 8.2.
(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 VIII shall
not prevent such joinder. This Article VIII shall also not prevent either Party
or any such Affiliate from pursuing any legal action against a Third Party.
8.2 ARBITRATION OF OTHER DISPUTES.
(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 ("AAA") in accordance with its Commercial
Arbitration Rules then in effect (collectively, "AAA Rules") and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
(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 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
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arbitrator shall be appointed by the AAA in accordance with the AAA Rules. For
purposes of this Section, the "commencement of the arbitration proceeding"
shall be deemed to be the date upon which the Demand for Arbitration has been
delivered to the Parties in accordance with this Section 8.2. A hearing on
the matter in dispute shall commence within 30 days following selection of
the arbitrator, and the decision of the arbitrator shall be rendered no later
than 60 days after commencement of such hearing.
(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 he deems necessary in respect
of the subject matter of the dispute, including measures to maintain the status
quo until such time as the arbitration award is rendered or the controversy is
otherwise resolved. The arbitrator shall only have the authority to award any
remedy or relief (except ex parte relief) that a Superior Court of the State of
California could order or grant, including, without limitation, specific
performance of any obligation created under this Agreement, the issuance of an
injunction, or the imposition of sanctions for abuse or frustration of the
arbitration process, but specifically excluding punitive damages.
(g) Either Party may file an application in any proper court
for a provisional remedy in connection with an arbitrable controversy, but only
upon the ground that the award to which the application may be entitled may be
rendered ineffectual without provisional relief. Notwithstanding the foregoing,
NMR shall have the right, without the requirement of making the showing as to
provisional relief set forth in the preceding sentence, to initiate an
injunctive or similar action with respect to the enforcement of any breach by
NRI of Section 2.3. The Parties may also commence legal action in lieu of any
arbitration under this Section 8.2 in connection with any Third Party litigation
proceedings.
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(h) For purposes of any suit, action or legal proceeding
permitted under this Article VIII, each Party (a) hereby irrevocably submits
itself to and consents to the non-exclusive jurisdiction of the 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 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 IX
CONFIDENTIALITY
9.1 CONFIDENTIAL INFORMATION. For the purposes of this Agreement,
"Confidential Information" shall mean any information delivered by one party
("Disclosing Party") to the other party ("Receiving Party") which the Receiving
Party knows or has reason to know is considered confidential by the Disclosing
Party. NMR acknowledges that it has received access to the source code of NRI's
Proprietary Software pursuant to the Escrow Agreement (as defined below). NMR
has not reviewed such source code and it remains the Confidential Information of
NRI. The NMR Sampling Methodology shall be deemed to be "Confidential
Information", subject to the provisions of Section 9.2 below. The Receiving
Party agrees to take precautions to prevent any unauthorized disclosure or use
of Confidential Information consistent with precautions used to protect the
Receiving Party's own confidential information, but in no event less than
reasonable care. Except as provided below, the Receiving Party agrees to treat
the Confidential Information as confidential and shall not disclose the
Confidential Information to any Person or Entity without the Disclosing Party's
prior written consent. The Receiving Party may only disclose the Confidential
Information to the Receiving Party's employees or contractors who reasonably
require access to such Confidential Information to perform obligations under
this Agreement. 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
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disclosure thereof. The obligations imposed by this Article IX shall survive
any termination of this Agreement.
9.2 NON-CONFIDENTIAL INFORMATION. The obligations set forth in
Section 9.1 shall not apply to any particular portion of any Confidential
Information that: (i) now or subsequently becomes generally known or available
through no act or omission of the Receiving Party; (ii) is known to the
Receiving Party at the time of receipt of the same from the Disclosing Party;
(iii) is provided by the Disclosing Party to a Third Party without restriction
on disclosure; (iv) is 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. The parties acknowledge
that questions may arise as to what parts of the of the NMR Sampling
Methodology are not confidential, and NMR agrees to promptly answer requests for
clarification regarding the confidential status of particular parts of the NMR
Sampling Methodology.
ARTICLE X
MISCELLANEOUS
10.1 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of California without regard to choice of law provisions thereof, and
by the General Corporation Law of the State of Delaware to the extent applicable
to any corporate action related to NRI.
10.2 SUCCESSORS AND ASSIGNS. Neither this Agreement nor any rights or
obligations hereunder may be assigned by either Party without the prior written
consent of the other Party, except that either Party may assign, without such
consent, to an Affiliate. The provisions of this Agreement shall inure to the
benefit of, and be binding upon, the permitted successors, assigns, heirs,
executors and administrators of the Parties to this Agreement. 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, provided that no such assignment hereunder shall relieve
the assigning Party of its obligations hereunder.
10.3 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Ancillary
Agreements constitute the full and entire agreement between the Parties with
respect to the subject matter hereof and thereof, and supersede all prior oral
and written agreements and understandings between the Parties. For the
avoidance of doubt, the Escrow Agreement (and associated License Agreement)
among NRI, NMR and Brambles NSD, Inc., as escrow agent, dated October 26, 1998
(the "Escrow Agreement"), including all extensions thereof, and the License
Agreement defined and referred to therein, are hereby terminated and rendered
null and void. NMR confirms that it received the source code to the NRI
Proprietary Software from the escrow agent under the Escrow Agreement, that it
has returned all copies of such source code to NRI simultaneously herewith and
that it has not downloaded, reviewed, decompiled, copied or otherwise accessed
such source code during the period of its possession by NMR. NRI hereby
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acknowledges receipt of such source code. Except as expressly provided in this
Agreement, neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the Party
against whom enforcement of any such amendment, waiver, discharge or termination
is sought.
10.4 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 10.4):
(a) If to NMR:
Nielsen Media Research, Inc.
299 Park Avenue
New York, New York 10171
Telephone: (212) 708-7004
Facsimile: (212) 708-7012
Attention: Chief Legal Officer
With copies to:
Coudert Brothers
1114 Avenue of the Americas
New York, New York 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:
Gray Cary Ware & Freidenrich
400 Hamilton Avenue
Palo Alto, California 94301-1825
Telephone: (650) 833-2266
Facsimile: (650) 327-3699
Attention: Mark Radcliffe, Esq.
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All such notices and communications hereunder shall for all purposes
of this Agreement be treated as effective or having been given when delivered
if delivered personally, or, if sent by mail, at the earlier of its receipt
or 72 hours after the same has been deposited in a regularly maintained
receptacle for the deposit of United States mail, addressed and postage
prepaid as aforesaid.
10.5 DELAYS OR OMISSIONS. Except as expressly provided in this
Agreement, no delay or omission to exercise any right, power or remedy
accruing to a Party, upon any breach or default of the other Party under this
Agreement, shall impair any such right, power or remedy of such Party nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring.
Any waiver, permit, consent or approval of any kind or character on the part
of a Party of any breach or default under this Agreement, or any waiver on
the part of such Party of any provisions or conditions of this Agreement,
must be in writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement or by law
or otherwise afforded to any holder, shall be cumulative and not alternative.
10.6 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.
10.7 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 $10,000.
10.8 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.
10.9 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.
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10.10 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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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
NETRATINGS, INC.
By:
-----------------------------------
NIELSEN MEDIA RESEARCH, INC.
By:
-----------------------------------
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