{"id":42647,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/panel-maintenance-agreement-netratings-inc-and-nielsen-media.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"panel-maintenance-agreement-netratings-inc-and-nielsen-media","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/panel-maintenance-agreement-netratings-inc-and-nielsen-media.html","title":{"rendered":"Panel Maintenance Agreement &#8211; NetRatings Inc. and Nielsen Media Research Inc."},"content":{"rendered":"<pre>\n                         PANEL MAINTENANCE AGREEMENT\n\n       THIS PANEL MAINTENANCE AGREEMENT, made and entered into as of this 15th\nday of August, 1999 (the \"Agreement\") by and between NetRatings, Inc., a\nDelaware corporation (\"NRI\"), and Nielsen Media Research, Inc., a Delaware\ncorporation (\"NMR\", and together with NRI, the \"Parties\").\n\n                              B A C K G R O U N D\n\n       A.     Simultaneously with the execution and delivery of this Agreement,\nNMR and NRI are entering into an Operating Agreement (the \"Operating Agreement\")\npursuant to which, among other things, NMR and NRI have agreed to cooperate in\nthe development, marketing, sale and distribution of a data collection,\nprocessing, storage, analysis and reporting service to measure Internet usage\nprovided under the NRI trademarks and NMR trademarks (the \"Internet Service\");\n\n       B.     Pursuant to the terms of the Operating Agreement, the Parties have\nagreed to enter into this Agreement.\n\n\n       In consideration of these premises, and of the mutual promises and \nconditions contained in this Agreement, NMR and NRI hereby agree as follows:\n\n                                  ARTICLE I\n\n                                 DEFINITIONS\n\n       For the purposes of this Agreement, the following terms shall have the\nmeanings indicated.  Capitalized terms not otherwise defined shall have the\nmeanings set forth in the Operating Agreement.\n\n       1.1    \"AFFILIATE\" shall mean a Person that controls, is controlled by or\nis under common control with another Person.  For purposes of this Agreement,\n\"control\" shall mean direct or indirect ownership of more than 50% of the voting\ninterest or income interest in an Entity, or such other relationship as, in\nfact, constitutes actual control.\n\n       1.2    \"ANCILLARY AGREEMENTS\" shall mean, collectively, the Operating\nAgreement and the License Agreement.\n\n       1.3    \"COLLECTION SOFTWARE\" shall mean the part of the NRI Proprietary\nSoftware that is installed on a Panel Member's computer to gather data about\nsuch Panel Member's Internet usage activities.\n\n       1.4    \"CONFIDENTIAL PANEL DATA\" shall have the meaning set forth in\nSection 2.3 below.\n\n       1.5    \"ENTITY\" shall mean any general partnership, limited partnership,\nlimited liability company, corporation, joint venture, trust, business trust,\ncooperative or association, or any foreign trust or foreign business\norganization.\n\n\n\n\n       1.6    \"HOUSEHOLD PANEL\" shall mean the Panel comprised of the initial\ngroup of Panel Members identified by NMR on behalf of NRI for use in connection\nwith the Internet Service, consisting of approximately 5,000 households selected\nby NMR through the NMR Sampling Methodology.\n\n       1.7    \"INTELLECTUAL PROPERTY RIGHTS\" shall mean all worldwide right,\ntitle and interest of a Person in, to and under any and all: (i) United States\nor foreign patents and pending patent applications therefor, including the right\nto file new and additional patent applications based thereon, including\nprovisionals, divisionals, continuations, continuations-in-part, reissues and\nreexaminations; (ii) copyrights; and (iii) trade secrets, know-how, processes,\nmethods, engineering data and technical information.\n\n       1.8    \"INTERNET SERVICE\" shall have the meaning set forth in the\nrecitals hereto.\n\n       1.9    \"INTERNET USAGE DATA\" shall have the meaning set forth in Section\n2.3(a) below.\n\n       1.10   \"LICENSE AGREEMENT\" shall mean the Software License Agreement\nbetween the Parties of even date.\n\n       1.11   \"MAINTENANCE FEES\" shall have the meaning set forth in Section\n3.1.\n\n       1.12   \"MAINTENANCE SERVICES\" shall have the meaning set forth in Section\n2.1.\n\n       1.13   \"NMR SAMPLING METHODOLOGY\" shall mean NMR's proprietary analytical\nand statistical protocols, methodologies for developing universe estimates,\nsampling methodologies and related technologies for the identification,\nselection and recruitment of households and Persons within certain specified\nmarket, demographic, geographic and other criteria, in each case as the same\nexist on the date hereof or as the same may be hereafter modified, supplemented\nor changed.\n\n       1.14   \"NRI PROPRIETARY SOFTWARE\" shall mean all computer software\nprograms owned by NRI as of the date hereof, as listed on EXHIBIT A, or at any\ntime during the term of this Agreement, and all Updates thereto, for providing\nthe Approved Internet Service (as defined in the Operating Agreement).  NRI\nProprietary Software expressly excludes any software that NRI licenses from\nThird Parties for use with the NRI Proprietary Software.\n\n       1.15   \"PANEL\" shall mean any group of households or Persons identified\nand selected in accordance with specified criteria under the NMR Sampling\nMethodology for purposes of measuring specified activities.\n\n       1.16   \"PANEL MEMBER\" means households, Persons or other participants\ncomprising the Household Panel who are provided with the Collection Software for\nindividual use in connection with the Internet Service in accordance with the\nterms of the Panel Member License Agreement.\n\n       1.17   \"PANEL MEMBER LICENSE AGREEMENT\" shall mean the license agreement\nentered into between each Panel Member and NRI, as amended from time to time,\nsubstantially in the form attached hereto as EXHIBIT B.\n\n\n                                       2\n\n\n\n       1.18   \"PERSON\" shall mean any individual or Entity, and the heirs,\nexecutors, administrators, legal representatives, successors and assigns of the\n\"Person\" when the context so permits.\n\n       1.19   \"THIRD PARTY\" shall mean a Person other than NMR or its Affiliates\nand NRI or its Affiliates.\n\n       1.20   \"UPDATES\" shall have the meaning set forth in the Operating\nAgreement.\n\n                                  ARTICLE II\n\n                           HOUSEHOLD PANEL SERVICES\n\n       2.1    NMR PANEL MAINTENANCE OBLIGATIONS.  The services to be rendered by\nNMR hereunder shall include services relating to (i) the maintenance of the\nHousehold Panel and (ii) where Approved by the Operating Committee, the\nexpansion of the Household Panel, in each case as further provided in this\nSection 2.1 below.  Such services, together with the technical support services\nto be rendered by NMR pursuant to Section 2.2(a) below, are referred to\ncollectively herein as the \"Maintenance Services.\"  NMR shall be the exclusive\nsupplier of Maintenance Services to the Household Panel, provided that NMR shall\nhave the right to outsource certain aspects of the Maintenance Services to Third\nParties under its supervision in accordance with the provisions of Section 2.5.\nNRI may request outsourcing of Maintenance Services as provided in Section 2.5.\n\n       (a)    Subject to the terms and conditions of this Agreement, NMR hereby\nagrees to maintain the Household Panel (as the same may be expanded pursuant to\nSection 2.1(b) below) in accordance with the NMR Sampling Methodology, as the\nsame may be updated from time to time by NMR.  NRI has been provided with access\nto the NMR Sampling Methodology pursuant to the Operating Agreement and is\nfamiliar therewith.  NMR shall not be obligated to render any maintenance\nobligations with respect to the Household Panel which are not contemplated by\nthe NMR Sampling Methodology, unless specifically agreed to in writing by NMR.\n\n       (b)    The Parties acknowledge that the size of the Household Panel may\nbe expanded upon Operating Committee Approval.  If an expansion of the Household\nPanel is Approved by the Operating Committee, NMR will take steps to build the\nsize of the Household Panel in accordance with the NMR Sampling Methodology,\nsubject, however, to such guidelines as to timing, cost and other factors as are\ndetermined by Operating Committee Approval with respect to the implementation of\nsuch expansion.  Notwithstanding the above, the Parties have agreed to increase\nthe Household Panel to 25,000 Panel Members by October 31, 1999.\n\n       2.2    TECHNICAL SUPPORT OBLIGATIONS.  NMR and NRI shall each provide\ntechnical support with respect to the NRI Proprietary Software and the use of\nsuch software by Panel Members pursuant to this Section 2.2.  NMR and NRI shall\nreasonably coordinate their efforts in performing their respective technical\nservice obligations hereunder so as to minimize technical problems encountered\nby Panel Members and raise the installation and cooperation rates among Panel\nMembers.\n\n\n                                       3\n\n\n\n       (a)    NMR shall provide \"front-line\" technical support to Panel Members\nin connection with their installation, use and maintenance of the Collection\nSoftware.  Such support services shall include providing hotline telephone\nservice to Panel Members, trouble shooting to correct errors, bugs and\nincompatibilities in the Collection Software and similar technical support.  If\nNMR is unable to resolve any such technical problems, it shall refer them to NRI\nfor resolution pursuant to Section 2.2(b). NMR shall provide NRI with a written\nmonthly report describing all problems reported to NMR under this Section 2.2(a)\nand their resolution.\n\n       (b)    NRI shall provide, at its own cost and expense,  back-up technical\nsupport to Panel Members, technical training and assistance to NMR personnel and\ntechnical support with respect to the Collection Software as follows:\n\n              (i)    NRI shall provide backup technical support to NMR and\/or\nPanel Members, as and when requested by NMR, with respect to technical problems\nthat NMR is unable to initially resolve under Section 2.2(a).  NRI shall respond\nto all such requests for assistance as promptly as practicable in order to\nmaximize participation rates among Panel Members and facilitate NMR's\nmaintenance of the Household Panel.  NRI shall provide NMR with a written\nmonthly report describing all outstanding bugs\/incompatibilities and the\nestimated resolution dates therefor.\n\n              (ii)   NRI shall provide up to four three day sessions per\ncalendar year of technical training to NMR personnel at no cost to NMR at NMR's\nfacilities.  NRI shall be responsible for all expenses of its personnel\nproviding training, including without limitation, lodging and food.\n\n              (iii)  To assist NMR in raising the installation and continued\ncooperation rate among Panel Members, NRI shall make such improvements,\nenhancements and modifications to the Collection Software as may be reasonably\nnecessary and technically possible at reasonable expense from time to time in\norder to (A) minimize the occurrence of conflicts between the Collection\nSoftware and typical systems of computers used by Panel Members and (B) improve\nthe ease of installation and operation of the Collection Software by Panel\nMembers.  NRI shall provide NMR with a written monthly report setting forth all\nplanned Updates and other improvements, enhancements and modifications to the\nCollection Software in order to facilitate the timely preparation of revised\ninstruction and other printed materials for distribution by NMR to Panel Members\nand the training of NMR's personnel with respect to the technical modifications\nto be implemented.\n\n       (c)    The Parties acknowledge and agree that transfers of data are\nnecessary between NRI's data collection and reporting systems and NMR's Panel\nmanagement systems.  To facilitate such transfers, the Parties will reasonably\ncooperate with each other to ensure that all such data are in a format that is\ncompatible with each party's data management systems.\n\n       2.3    PANEL DATA.  (a)  Subject to NMR's rights under the Operating\nAgreement and this Agreement, as between NMR and NRI, all right, title and\ninterest in the data obtained via the Collection Software concerning the\nInternet usage activities of Panel Members in the Household Panel, and all\nreports generated from such data for sale and distribution to customers of the\nInternet Service (collectively, \"Internet Usage Data\"), shall be vested in NRI.\nNMR shall have \n\n\n                                       4\n\n\n\nthe right to store, access, sell, distribute and use the Internet Usage Data \nin accordance with the provisions of the Operating Agreement.\n\n       (b)    The Parties acknowledge and agree that the NMR Sampling\nMethodology imposes certain restrictions and limitations on any oral, written or\nother contacts with active and former Panel Members and members of the sample\nframe about which NRI has actual knowledge and on the use and dissemination of\ndata and information relating to the Panel Members, including their identities\nand addresses.  Accordingly, the Parties hereby undertake and agree to the\nfollowing restrictions:\n\n       (i)    All contacts with active and former Panel Members shall be\n              controlled by NMR, and such contacts shall only occur in\n              compliance with applicable restrictions contained in the NMR\n              Sampling Methodology.  Neither NRI, its employees nor agents shall\n\n              contact Panel Members for any purpose except as follows:\n\n              (1)    Appropriate NRI technical personnel may contact Panel \n                     Members by telephone or by E-mail to render the backup \n                     technical support services described in Section \n                     2.2(b)(i) above.\n\n              (2)    Appropriate NRI personnel may contact a Panel Member by \n                     telephone or by E-mail to confirm such Panel Member's \n                     continued active participation in the Household Panel if \n                     Internet Usage Data has not been received from such \n                     Panel Member for a period set by the Operating Committee.\n\n              (3)    Other contacts between NRI and Panel Members may occur \n                     for appropriate reasons (e.g., NRI's internal research \n                     purposes), but only to the extent such other contacts \n                     are mutually agreed upon in advance by NMR and NRI.  NRI \n                     shall give NMR prior written notice of any such proposed \n                     contacts it wishes to make so that mutual agreement of \n                     the Parties can be obtained.\n\n              (4)    All permitted contacts between NRI and Panel Members \n                     shall take place in accordance with applicable \n                     restrictions contained in the NMR Sampling Methodology \n                     which are disclosed to NRI in writing. NRI shall \n                     institute any additional limitations on contacts with \n                     Panel Members pursuant to the NMR Sampling Methodology \n                     within fifteen (15) days of notice by NMR.\n\n\n       (ii)   All data concerning active and former Panel Members in the\n              Household Panel, including the names, addresses, and related\n              demographic profiles of such Panel Members, prior contact\n              information, current follow-up status and such other information\n              as is generated by NMR or NRI hereunder (collectively,\n              \"Confidential Panel Data\") shall be held strictly confidential by\n              each of the Parties and their respective employees and agents in\n              accordance with the NMR Sampling Methodology.  Such Confidential\n\n\n                                       5\n\n\n\n              Panel Data shall be maintained by each party in a secure database\n              with appropriate restrictions on access and use which are\n              consistent with the NMR Sampling Methodology as disclosed to NRI\n              and this Agreement.  None of such Confidential Panel Data shall be\n              sold, transferred or otherwise disseminated by either party to any\n              Third Party for any reason whatsoever.\n\n       (iii)  Neither party shall permit its employees or consultants to assist\n              any oral, written or other contact to occur between Panel Members\n              and customers of the Internet Service or any other Third Parties.\n\n       2.4    REPORTS.  (a) NMR shall provide NRI with regular access  to NMR's\nsample management system with respect to real time (i) results of ongoing\nrecruitment efforts and acceptance rates and trends for prospective Panel\nMembers and (ii) technical information and assistance requests received by NMR.\n\n       (b)    NRI shall provide NMR with regular access  to NRI's sample\nmanagement system with respect to real time reports with respect to (i) Panel\nMembers who cease to be active Panel Members during the reporting period and\n(ii) the information concerning outstanding bugs\/incompatibilities and planned\nUpdates described in Section 2.2(b) above.\n\n       (c)    NMR shall maintain records for four (4) years after providing such\nMaintenance Services of all the Maintenance Services provided under this\nAgreement and the similar services  provided to its internal divisions to enable\nNRI to audit such records to confirm that the amounts charged as Maintenance\nFees relate to Maintenance Services as defined in this Agreement and that NRI is\nbeing charged therefor in the same manner as the internal divisions.  NRI may\naudit such records upon forty-eight (48) hours' prior written notice at the\nheadquarters of NMR during normal business hours.  If such audit reveals fees\ncharged by NMR equaling or exceeding 110% of the actual amount due, then NMR\nshall pay the expenses of such audit.\n\n       2.5    OUTSOURCING.  NMR shall have the right to retain the services of\nThird Party vendors and suppliers to perform (or to assist it in performing) any\naspect of the Maintenance Services, in each case in compliance with the NMR\nSampling Methodology and under the supervision of NMR.  At NRI's request, NMR\nagrees to provide the Maintenance Services through such Third Parties on the\nsame terms such services are provided to NMR if NMR uses such Third Parties for\nservices similar to the Maintenance Services.\n\n       2.6    UNIVERSE ESTIMATES.  At the request of NRI, NMR currently prepares\nspecial monthly universe estimates of the total population of Internet users in\nthe United States (\"Special Internet Universe Estimates\").  NMR shall continue\nto prepare Special Internet Universe Estimates for NRI on a monthly basis or on\nsuch other basis as the Operating Committee may determine.  NMR shall make all\nSpecial Internet Universe Estimates available to NRI on a co-exclusive basis\nwith NMR solely for use by NMR in projecting Internet usage from the Household\nPanel to the entire population for the Internet Service.  NMR agrees to include\nnew questions in the Special Internet Universe Estimate script unless NMR\nreasonably believes that such change will be inconsistent with the quality\ncontrol of the NMR Sampling Methodology. The Parties acknowledge and agree that\nthe cost of preparing the Special Internet Universe \n\n\n                                       6\n\n\n\nEstimates will be charged to NRI as part of the Maintenance Fees described in \nArticle III below.  NRI may use the Special Internet Universe Estimate in any \nmanner, including selling it as part of a different service.\n\n                                 ARTICLE III\n\n                               MAINTENANCE FEES\n\n       3.1    FEES AND CHARGES.  In consideration of the Maintenance Services to\nbe rendered by NMR hereunder, NRI agrees to reimburse NMR for all of its costs\nincurred in connection with the provision of such Maintenance Services on the\nsame basis as NMR charges its own divisions, including, without limitation, all\ncompensation and benefits of NMR employees in the provision of the Maintenance\nServices and an allocable portion of NMR's overhead charges with respect\nthereto.  NMR shall also be reimbursed for all out-of-pocket costs incurred by\nit in the performance (or its supervision of the performance by a Third Party\noutsourced pursuant to Section 2.5 above) of Maintenance Services hereunder,\nincluding the cost of consultants and contractors retained by NMR with the prior\nwritten approval of NRI, the cost of all training manuals and other\ninstructional materials with the prior written approval of NRI, packaging\nmaterials and printing and shipping costs for the Collection Software incurred\nspecifically in connection the Maintenance Services.  If the Operating Agreement\nis terminated as a result of NMR owning less than 5.0% of NRI on a fully-diluted\nbasis (i.e. based on the assumption that all options, warrants or other\nconvertible securities or instruments or other rights to acquire Common Stock or\nany other existing or future classes of capital stock have been exercised or\nconverted, as applicable, in full, regardless of whether any such options,\nwarrants, convertible securities or instruments of other rights are then vested\nor exercisable or convertible in accordance with their terms), as a result of\nthe purchase by NRI of NMR's shares of capital stock of NRI and the Warrants (as\ndefined in as defined in that certain Addendum No. 1 to Restated Stockholders'\nAgreement by and among NMR, NRI and the other parties set forth therein (the\n\"Addendum\")) upon the occurrence of a Competitive Takeover (as defined in the\nAddendum), the Maintenance Fees shall be 120% of the cost of providing the\nMaintenance Services as determined above.  All amounts charged by NMR pursuant\nto this Section 3.1 are referred to herein collectively as the \"Maintenance\nFees.\"\n\n              NMR and NRI shall agree upon a budget for providing the\nMaintenance Services for 1999 within sixty (60) days of the date hereof.\nThereafter, for each successive calendar year (each, a \"Budget Year\"), NMR and\nNRI will agree upon a budget for each Budget Year at least thirty (30) days\nprior to the first day of such Budget Year.  If the expenditures exceed the\nbudget, then NMR agrees to promptly meet with NRI to discuss methods to reduce\nthe costs.   Any budget item greater than $25,000 shall be itemized (each a\n\"Special Budget Item\").  If the actual aggregate expenditures by NMR on any\nBudget Item exceed the budget for such Special Budget Item by more than 20%\nduring such Budget Year,  NMR shall not spend more than the full amount budgeted\nfor such Special Budget Item during such Budget Year without the prior written\napproval of NRI which shall not be unreasonably withheld.  For purposes of this\nAgreement, the period from the date hereof through December 31, 1999 shall be\ndeemed a Budget Year.\n\n\n                                       7\n\n\n\n       3.2    MONTHLY INVOICES.  Following the end of each calendar month, NMR\nshall furnish NRI with an invoice for the Maintenance Fees for such calendar\nmonth (or partial calendar month prorated for such partial calendar month).  NRI\nshall remit payment for such invoice within fifteen (15) business days from the\ndate of its receipt thereof.  NMR shall furnish NRI upon request with all\nnecessary supporting documentation for the calculation of the Maintenance Fees.\nInterest shall be charged at the prime rate on any invoice which remains unpaid\nfor more than thirty (30) business days after its receipt by NRI.\n\n                                  ARTICLE IV\n\n                                 TERMINATION\n\n       4.1    TERMINATION.\n\n       (a)    The term of this Agreement shall commence on the date hereof and\ncontinue for so long as the Household Panel is marketed under the NMR Trademarks\nand the NRI Trademarks (as those terms are defined in the Operating Agreement)\nwhether or not the Operating Agreement is terminated.  If NMR elects to withdraw\nthe use of the NMR Trademarks in connection with the marketing and sale of the\nHousehold Panel in accordance with the terms of the Operating Agreement, this\nAgreement shall terminate upon the effective date of such withdrawal.\n\n       (b)    This Agreement may be terminated at any time by the mutual consent\nof NMR and NRI.\n\n       (c)    Either Party may terminate this Agreement with respect to the\nHousehold Panel upon the material breach of any other provision of this\nAgreement by the other Party in respect of the Household Panel and such other\nparty's failure to cure such breach within thirty (30) days after its receipt of\nwritten notice specifying the breach.\n\n       4.2    EFFECT OF TERMINATION.  In the event of any termination of this\nAgreement, NRI shall pay to NMR any and all amounts owed to NMR pursuant to\nArticle III with respect to the month in which such termination occurs and all\nprevious months, to the extent not already paid and such other amounts as may be\nowing.\n\n\n                                       8\n\n\n\n                                  ARTICLE V\n\n                              DISPUTE RESOLUTION\n\n       5.1    GENERAL DISPUTE PRINCIPLES.\n\n       (a)    All disputes between NRI and NMR under this Agreement shall be\nsettled, if possible, through good faith negotiations between the Parties.  In\nthe event such disputes cannot be so resolved, such disputes shall be resolved\nas provided in Section 5.2.\n\n       (b)    If either party or any of its Affiliates is subject to a claim,\ndemand, action or proceeding by a Third Party and is permitted by law or\narbitral rules to join another party to such proceeding, this Article V shall\nnot prevent such joinder.  This Article V shall also not prevent either party or\nany such Affiliate from pursuing any legal action against a Third Party.\n\n       5.2    ARBITRATION OF OTHER DISPUTES.\n\n       (a)    The Parties shall submit any controversy or claim arising out of,\nrelating to or in connection with this Agreement or any Ancillary Agreement, or\nthe breach hereof or thereof (\"Demand for Arbitration\"), to arbitration\nadministered by the American Arbitration Association (\"AAA\") in accordance with\nits then existing Commercial Arbitration Rules then in effect (collectively,\n\"AAA Rules\") and judgment upon the award rendered by the arbitrator may be\nentered in any court having jurisdiction thereof.\n\n       (b)    The place of arbitration shall be San Diego, California.\n\n       (c)    The Parties shall attempt, by agreement, to nominate a sole\narbitrator for confirmation by the AAA.  If the Parties fail so to nominate a\nsole arbitrator within 30 days from the date when the Demand for Arbitration has\nbeen communicated by the initiating Party, the arbitrator shall be appointed by\nthe AAA in accordance with the AAA Rules.  For purposes of this Section, the\n\"commencement of the arbitration proceeding\" shall be deemed to be the date upon\nwhich the Demand for Arbitration has been delivered to the Parties in accordance\nwith Section 5.2.  A hearing on the matter in dispute shall commence within\n30 days following selection of the arbitrator, and the decision of the\narbitrator shall be rendered no later than 60 days after commencement of such\nhearing.\n\n       (d)    An award rendered in connection with an arbitration pursuant to\nthis Section 5.2 shall be final and binding upon the Parties, and the Parties\nagree and consent that the arbitral award shall be conclusive proof of the\nvalidity of the determinations of the arbitrator set forth in the award and any\njudgment upon such an award may be entered and enforced in any court of\ncompetent jurisdiction.\n\n       (e)    The Parties agree that the award of the arbitral tribunal will be\nthe sole and exclusive remedy between them regarding any and all claims and\ncounterclaims between them with respect to the subject matter of the arbitrated\ndispute.  The Parties hereby waive all IN \n\n\n                                       9\n\n\n\nPERSONAM jurisdictional defenses in connection with any arbitration hereunder \nor the enforcement of an order or award rendered pursuant thereto (assuming \nthat the terms and conditions of this arbitration clause have been complied \nwith).\n\n       (f)    The arbitrator shall issue a written explanation of the reasons\nfor the award and a full statement of the facts as found and the rules of law\napplied in reaching his decision to both parties.  The arbitrator shall\napportion to each party all costs (including attorneys' and witness fees, if\nany) incurred in conducting the arbitration in accordance with what the\narbitrator deems just and equitable under the circumstances.  Any provisional\nremedy which would be available in a court of law shall be available from the\narbitrator pending arbitration of the dispute.  Either party may make an\napplication to the arbitrator seeking injunctive or other interim relief, and\nthe arbitrator may take whatever interim measures such arbitrator deems\nnecessary in respect of the subject matter of the dispute, including measures to\nmaintain the status quo until such time as the arbitration award is rendered or\nthe controversy is otherwise resolved.  The arbitrator shall only have the\nauthority to award any remedy or relief (except ex parte relief) that a Superior\nCourt of the State of California could order or grant, including, without\nlimitation, specific performance of any obligation created under this Agreement,\nthe issuance of an injunction, or the imposition of sanctions for abuse or\nfrustration of the arbitration process, but specifically excluding punitive\ndamages.\n\n       (g)    The Parties may file an application in any proper court for a\nprovisional remedy in connection with an arbitrable controversy, but only upon\nthe ground that the award to which the application may be entitled may be\nrendered ineffectual without provisional relief.  The Parties may also commence\nlegal action in lieu of any arbitration under this Section 5.2 in connection\nwith any Third Party litigation proceedings.\n\n       (h)    For purposes of any suit, action or legal proceeding permitted\nunder this Article V, each Party (a) hereby irrevocably submits itself to and\nconsents to the non-exclusive jurisdiction of the United States District Court\nfor the Southern District of California for the purposes of any suit, action or\nlegal proceeding in connection with this Agreement, including to enforce an\narbitral resolution, settlement, order or award made pursuant to this Agreement\n(including pursuant to the U.S. Arbitration Act or otherwise), and (b) to the\nextent permitted by applicable law, hereby waives, and agrees not to assert, by\nway of motion, as a defense, or otherwise, in any such suit, action or legal\nproceeding pending in such event, any claim that it is not personally subject to\nthe jurisdiction of such court, that the suit, action or legal proceeding is\nbrought in an inconvenient forum or that the venue of the suit, action or legal\nproceeding is improper.  Each party hereby agrees to the entry of an order to\nenforce any resolution, settlement, order or award made pursuant to this Section\n5.2 by the United States District Court for the Southern District of California\nand in connection therewith hereby waives, and agrees not to assert by way of\nmotion, as a defense, or otherwise, any claim that such resolution, settlement,\norder or award is inconsistent with or violative of the laws or public policy of\nthe State of California or any other jurisdiction.\n\n\n                                      10\n\n\n\n\n                                  ARTICLE VI\n\n                     INDEMNIFICATION; CERTAIN LIMITATIONS\n\n       6.1    NMR INDEMNIFICATION.  NMR hereby agrees, at its expense, to\ndefend, indemnify and hold harmless NRI from and against any losses, damages,\nexpenses, liabilities and costs (including reasonable legal fees) incurred by\nNRI as a result of any claims brought against NRI by Third Parties arising out\nof NMR's performance of Maintenance Services or any technical support services\nand performance of the Collection Software hereunder, except to the extent that\nNRI is responsible for any such losses and damages pursuant to Section 6.2.  NMR\nis not liable for any claims of infringement of Third Party intellectual\nproperty rights by the Collection Software.\n\n       6.2    NRI INDEMNIFICATION.  NRI's indemnification obligations with\nrespect to infringement of Third Party intellectual property rights are governed\nsolely by Article X of the License Agreement.  In addition, NRI hereby agrees,\nat its expense, to defend, indemnify and hold harmless NMR from and against any\nlosses, damages, expenses, liabilities and costs (including reasonable legal\nfees) incurred by NMR as a result of any claims brought against NMR by Panel\nMembers arising out of the provision of technical support services by NRI for\nthe Collection Software or the performance of the Collection Software by any\nPanel Member, including, without limitation, any claims that the Collection\nSoftware as delivered to NMR damaged or otherwise harmed any computers when\nproperly used, except to the extent that such damages or claims are caused by\nNMR's or the Panel Member's failure to follow technical support guidelines or\ninstructions established by NRI with respect to the Collection Software or NMR's\nerrors or other problems introduced as part of the reproduction or distribution\nof the Collection Software by NMR or its Affiliates.\n\n       6.3    CERTAIN LIMITATIONS.  The Parties' obligations under this Article\nVI shall be subject to the following terms and conditions:\n\n              (i)    The indemnified party shall give the indemnifying party \n                     prompt written notice of any claim, provided that any \n                     delay in or failure to provide such notice shall relieve \n                     the indemnifying party of its obligation to indemnify \n                     only to the extent that such failure or delay results in \n                     material prejudice to the indemnifying party,\n\n              (ii)   The indemnifying party shall have exclusive control over \n                     the defense and settlement of such claim, except that \n                     the indemnified party may participate in such action at \n                     its own cost and expense.\n\n              (iii)  The indemnified party shall provide reasonable \n                     assistance to the indemnifying party, at the \n                     indemnifying party's expense, in connection with the \n                     defense of such claim.  The indemnified party will \n                     cooperate with the indemnifying party to reduce its \n                     liability, such as by shipping new Collection Software \n                     to Panel Members.\n\n\n                                      11\n\n\n\n       6.4    NMR OBLIGATIONS.  The Parties acknowledge and agree that the size\nof the Household Panel will fluctuate as Panel Members terminate their active\nparticipation in such Panel or cease to qualify for such participation based\nupon criteria and requirements reflected in the relevant Panel Member License\nAgreement or the NMR Sampling Methodology. Further, the size of the Household\nPanel will be affected by the technical performance of the Collection Software\nwhich may impact install rates for such software, including, among other\nfactors, such software's capacity to measure all Internet usage within each\nhousehold in accordance with NMR Sampling Methodology and such software's\ncompatibility with personal computers operated by Panel Members. However, NMR\nshall use reasonable commercial efforts to maintain the number of Panel Members\nin the Household Panel at the minimum size requirements of 25,000 after October\n31, 1999 or such other number as the Operating Committee shall decide.\nNotwithstanding the foregoing, the Parties agree that the failure to maintain\nthe number of Panel Members in the Household Panel because of the failure of the\nCollection Software to perform in accordance with its specifications, a general\ndecrease in the participation by Panel Members not caused by changes in the NMR\nSampling Methodology or other factors beyond the reasonable control of NMR shall\nnot be a material breach of its obligations under the Agreement.\n\n       6.5    LIMIT OF LIABILITY.  EXCEPT AS PROVIDED IN SECTIONS 6.1 AND 6.2,\nNEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL,\nCONSEQUENTIAL OR STATUTORY DAMAGES RELATED TO ANY CAUSE OF ACTION OF THE OTHER\nPARTY ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY IS INFORMED OF THE\nPOSSIBILITY THEREOF IN ADVANCE.\n\n                                 ARTICLE VII\n\n                                MISCELLANEOUS\n\n       7.1    GOVERNING LAW.  This Agreement, and the respective rights, duties\nand obligations of the Parties hereunder, shall be governed by and construed and\nenforced in accordance with the laws of the State of New York.\n\n       7.2    SUCCESSORS AND ASSIGNS.  Except as otherwise provided in this\nAgreement, the provisions of this Agreement shall inure to the benefit of, and\nbe binding upon, the successors, assigns, heirs, executors and administrators of\nthe parties to this Agreement. Notwithstanding anything herein to the contrary,\neither Party shall have the right to assign its rights or obligations hereunder,\nwithout the prior written consent of the other Party, to an Affiliate, provided\nthat no such assignment hereunder shall relieve the assigning Party of its\nobligations hereunder.\n\n       7.3    ENTIRE AGREEMENT; AMENDMENT.  This Agreement, the Ancillary\nAgreements and the other documents delivered pursuant to this Agreement at the\nclosing constitute the full and entire understanding and agreement between the\nParties with regard to the subject matter hereof and thereof, and supersede all\nprior agreements and merge all prior discussions, negotiations, proposals and\noffers (written or oral) between them, and neither Party shall be liable or\nbound to the other party in any manner by any warranties, representations or\ncovenants except as specifically set forth herein or therein.  Except as\nexpressly provided in this Agreement, neither \n\n\n                                      12\n\n\n\nthis Agreement nor any term hereof may be amended, waived, discharged or \nterminated other than by a written instrument signed by the Party against \nwhom enforcement of any such amendment, waiver, discharge or termination is \nsought.\n\n       7.4    NOTICES, ETC.  All notices and other communications hereunder\nshall be deemed given if given in writing and delivered by hand, prepaid express\nor courier delivery service or by facsimile transmission or mailed by registered\nor certified mail (return receipt requested), facsimile or postage fees prepaid,\nto the party to receive the same at the respective addresses set forth below (or\nat such other address as may from time to time be designated by such Party in\naccordance with this Section 7.4):\n\n              (a)    If to NMR:\n\n                     Nielsen Media Research, Inc.\n                     299 Park Avenue\n                     New York, NY  10171\n                     Telephone:    (212) 708-7004\n                     Facsimile:    (212) 708-7012\n                     Attention:    Chief Legal Officer\n\n                     With copies to:\n\n                     Coudert Brothers\n                     1114 Avenue of the Americas\n                     New York, New York  10036\n                     Telephone:    (212) 626-4400\n                     Facsimile:    (212) 626-4120\n                     Attention:    James C. Colihan, Esq.\n\n              (b)    If to NRI:\n\n                     NetRatings, Inc.\n                     830 Hillview Court #225\n                     Milpitas, California 95035\n                     Telephone:    (408) 941-2946\n                     Facsimile:    (408) 951-0487\n                     Attention:    Stephen Gross, Vice President Finance\n\n                     With copies to:\n\n                     Gray, Cary, Ware &amp; Freidenrich, LLP\n                     400 Hamilton Avenue\n                     Palo Alto, CA  94301\n                     Telephone:    (650) 328-6561\n                     Facsimile:    (650) 327-3699\n                     Attention:    Mark F. Radcliffe, Esq.\n\n\n                                      13\n\n\n\n       All such notices and communications hereunder shall for all purposes of\nthis Agreement be treated as effective or having been given when delivered if\ndelivered personally, or, if sent by mail, at the earlier of its receipt or 72\nhours after the same has been deposited in a regularly maintained receptacle for\nthe deposit of the United States mail, addressed and postage prepaid as\naforesaid.\n\n       7.5    DELAYS OR OMISSIONS.  Except as expressly provided in this\nAgreement, no delay or omission to exercise any right, power or remedy accruing\nto either party, upon any breach or default of the other party under this\nAgreement, shall impair any such right, power or remedy of such party nor shall\nit be construed to be a waiver of any such breach or default, or an acquiescence\ntherein, or of or in any similar breach or default thereafter occurring; nor\nshall any waiver of any single breach or default be deemed a waiver of any other\nbreach or default theretofore or thereafter occurring.  Any waiver, permit,\nconsent or approval of any kind or character on the part of such party of any\nbreach or default under this Agreement, or any waiver on the part of such party\nof any provisions or conditions of this Agreement, must be in writing and shall\nbe effective only to the extent specifically set forth in such writing.  All\nremedies, either under this Agreement or by law or otherwise afforded to any\nholder, shall be cumulative and not alternative.\n\n       7.6    CONFIDENTIAL INFORMATION.  (a)  For the purposes of this\nAgreement, \"Confidential Information\" shall mean any information delivered by\none party (\"Disclosing Party\") to the other party (\"Receiving Party\") which the\nReceiving Party knows or has reason to know is considered confidential by the\nDisclosing Party.  Receiving Party agrees to take precautions to prevent any\nunauthorized disclosure or use of Confidential Information consistent with\nprecautions used to protect Receiving Party's own confidential information, but\nin no event less than reasonable care.  Except as provided below, Receiving\nParty agrees to treat the Confidential Information as confidential and shall not\ndisclose the Confidential Information to any Person or Entity without Disclosing\nParty's prior written consent.  Disclosing Party may only disclose the\nConfidential Information to Receiving Party's employees or contractors who\nreasonably require access to such Confidential Information to perform\nobligations under this Agreement.  Receiving Party shall take all appropriate\nsteps to ensure that its employees and contractors who are permitted access to\nthe Confidential Information agree to act in accordance with the obligations of\nconfidentiality imposed by this Agreement.  Should Receiving Party be faced with\nlegal action to disclose Confidential Information received under this Agreement,\nReceiving Party shall promptly notify Disclosing Party, and upon Disclosing\nParty's request, shall reasonably cooperate with Disclosing Party in contesting\nsuch disclosures.  Receiving Party shall maintain the secrecy of the\nConfidential Information disclosed pursuant to this Agreement for a period of\nfive (5) years from the date of disclosure thereof.  The obligations imposed by\nthis Article VII shall survive any termination of this Agreement.\n\n       7.7    NON-CONFIDENTIAL INFORMATION.  The obligations set forth in\nSection 7.6 shall not apply to any particular portion of any Confidential\nInformation that: (i) now or subsequently becomes generally known or available\nthrough no act or omission of Receiving Party; (ii) is known to Receiving Party\nat the time of receipt of the same from Disclosing Party; (iii) is provided by\nthe Disclosing Party to a Third Party without restriction on disclosure; (iv) is\nsubsequently rightfully provided to Receiving Party by a Third Party without\nrestriction on disclosure; or (v) is independently developed by Receiving Party,\nas can be demonstrated from \n\n\n                                      14\n\n\n\nReceiving Party's business records and documentation, provided the person or \npersons developing the same had not had access to the Confidential \nInformation of the Disclosing Party prior to such independent development.\n\n       7.8    PUBLICITY. Neither Party (nor such Party's Affiliates) shall issue\nany press release disclosing the terms of, or relating to, this Agreement or any\nAncillary Agreement, without the prior written consent of the other Party;\nprovided, however, that neither Party or its Affiliates shall be prevented from\ncomplying with any duty of disclosure it may have pursuant to Applicable Laws.\nSuch disclosing Party shall use its best efforts to consult with the other Party\nregarding the issuance of any such press release, or with regard to any public\nstatement disclosing the terms of this Agreement or any Ancillary Agreement and\nshall use its best efforts to obtain confidential treatment for any Confidential\nInformation where such press release or other public statement is required to be\nmade by Applicable Law.\n\n       7.9    EXPENSES.  Each of the Parties shall bear all legal, accounting\nand other transaction expenses incurred by it in connection with the\nnegotiation, execution, delivery and performance of this Agreement.\n\n       7.10   COUNTERPARTS.  This Agreement may be executed in counterparts,\neach of which shall be enforceable against the parties actually executing such\ncounterparts, and both of which together shall constitute one instrument.\n\n       7.11   SEVERABILITY.  In the event that any provision of this Agreement\nbecomes or is declared by a court of competent jurisdiction to be illegal,\nunenforceable or void, this Agreement shall continue in full force and effect\nwithout said provision; provided that no such severability shall be effective if\nit materially changes the economic benefit of this Agreement to any party.\n\n       7.12   TITLES AND SUBTITLES.  The titles and subtitles used in this\nAgreement are used for convenience only and are not considered in construing or\ninterpreting this Agreement.\n\n\n                                      15\n\n\n\nIN WITNESS WHEREOF, the parties have executed this Agreement as of the date\nfirst set forth above.\n\n                                            NETRATINGS, INC.\n\n\n\n                                            By:\n                                                -------------------------------\n\n                                            NIELSEN MEDIA RESEARCH, INC.\n\n\n\n                                            By:\n                                                -------------------------------\n\n\n\n\n                                      16\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8327,8356],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9620],"class_list":["post-42647","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-netratings-inc","corporate_contracts_companies-nielsen-media-research-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42647","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42647"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42647"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42647"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42647"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}