{"id":42809,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/software-license-agreement-netratings-inc-and-acnielsen.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"software-license-agreement-netratings-inc-and-acnielsen","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/software-license-agreement-netratings-inc-and-acnielsen.html","title":{"rendered":"Software License Agreement &#8211; NetRatings Inc. and ACNielsen eRatings.com"},"content":{"rendered":"<pre>\n                           SOFTWARE LICENSE AGREEMENT\n\n\n                                    between\n\n\n                                NETRATINGS, INC.\n                                   (LICENSOR)\n\n\n                                      and\n\n\n                             ACNielsen eRatings.com\n                                   (LICENSEE)\n\n\n                         Dated as of September 22, 1999\n\n\n\n                                TABLE OF CONTENTS\n\n\n\n                                                                                  Page\n                                                                               \n\n1.       Definitions.................................................................1\n         1.1      ACNielsen Sampling Methodology.....................................1\n         1.2      Back End Software..................................................1\n         1.3      Collection Software................................................1\n         1.4      Contract Quarter...................................................2\n         1.5      Claims.............................................................2\n         1.6      Consulting Services................................................2\n         1.7      Disaster Recovery Site and Disaster Recovery Sites.................2\n         1.8      Documentation......................................................2\n         1.9      E-Commerce.........................................................2\n         1.10     E-Commerce Service.................................................2\n         1.11     Entity.............................................................2\n         1.12     Excluded Country and Excluded Countries............................2\n         1.13     Gross Revenue......................................................2\n         1.14     Initial Release....................................................2\n         1.15     Initial Roll-Out Costs.............................................2\n         1.16     Intellectual Property Right and Intellectual Property Rights.......3\n         1.17     Internet Measurement Panel.........................................3\n         1.18     Internet Penetration...............................................3\n         1.19     Licensor Intellectual Property Rights..............................3\n         1.20     Licensor \"Know-How\"................................................3\n         1.21     Localized..........................................................3\n         1.22     Localized Software.................................................3\n         1.23     Minimum Usage Threshold............................................3\n         1.24     Licensor Proprietary Software......................................3\n         1.25     Operating Agreement................................................4\n         1.26     Operating Committee................................................4\n         1.27     Other Agreements...................................................4\n         1.28     Panel Data.........................................................4\n         1.29     Panel Member License Agreement.....................................4\n         1.30     Person.............................................................4\n         1.31     Requested Developments.............................................4\n         1.32     Site and Sites.....................................................4\n         1.33     Subscriber.........................................................4\n         1.34     Term...............................................................4\n         1.35     Territory..........................................................4\n         1.36     Third Party........................................................4\n         1.37     Upgrade and Upgrades...............................................4\n         1.38     Use................................................................4\n\n2.       License Grants and Restrictions.............................................5\n         2.1      Grant of License in Collection Software............................5\n         2.2      Grant of License in Back End Software..............................5\n         2.3      Grant of License to Documentation..................................5\n         2.4      Grant of Licensor Know-How License.................................5\n         2.5      Localized Software.................................................6\n\n                                       i\n\n\n\n                                TABLE OF CONTENTS\n                                   (continued)\n\n         2.6      Notice of Panel Member's Breach....................................6\n         2.7      Reservation of Rights..............................................6\n         2.8      Restrictions.......................................................7\n         2.9      Delivery...........................................................7\n         2.10     Acceptance.........................................................7\n         2.11     Requested Developments.............................................7\n         2.12     Mediametrie Agreement..............................................8\n\n3.       Compensation................................................................9\n         3.1      Guaranteed Commissions.............................................9\n         3.2      Maintenance Fees...................................................9\n         3.3      Taxes and Assessments..............................................9\n         3.4      Payment Terms......................................................9\n         3.5      Reporting..........................................................9\n         3.6      Access and Audit..................................................10\n\n4.       Territory; Internet Measurement Panel Establishment........................10\n\n5.       [Intentionally Left Blank].................................................11\n\n6.       Business Panel Establishment...............................................11\n\n7.       Proprietary Rights Notices.................................................12\n         7.1      Support and Maintenance...........................................12\n\n8.       Representations and Warranties of Licensor.................................12\n\n9.       Indemnification............................................................14\n\n10.      Confidentiality............................................................16\n         10.1     Confidential Information..........................................16\n         10.2     Non-Confidential Information......................................16\n\n11.      Liability..................................................................17\n         11.1     Waiver of Consequential Damages...................................17\n         11.2     Limitation of Liability...........................................17\n\n12.      Dispute Resolution.........................................................17\n\n13.      Term.......................................................................17\n\n15.      Applicability of Bankruptcy Code...........................................19\n\n16.      General Provisions.........................................................20\n         16.1     Allocation of Risk................................................20\n         16.2     Amendment.........................................................20\n         16.3     Assignment........................................................20\n\n                                      ii\n\n\n\n                                TABLE OF CONTENTS\n                                   (continued)\n         16.4     Change of Control..............................................20\n         16.5     Choice of Law..................................................20\n         16.6     Compliance with Laws\/Foreign Corrupt Practices Act.............20\n         16.7     Counterparts...................................................21\n         16.8     Entire Agreement...............................................21\n         16.9     Force Majeure..................................................21\n         16.10    Licensee's Governmental Approval Obligations...................21\n         16.11    Notices, etc...................................................21\n         16.12    Relationship of Parties........................................22\n         16.13    Severability...................................................22\n         16.14    Waiver.........................................................22\n         16.15    Calendar Days..................................................23\n\n                                     iii\n\n\n\n                           SOFTWARE LICENSE AGREEMENT\n\n\n\n         THIS SOFTWARE LICENSE AGREEMENT (this \"Agreement\") is made as of\nSeptember 22, 1999, (the \"Effective Date\"), between NetRatings, Inc., a Delaware\ncorporation with a place of business at 830 Hillview Court, Suite 225, Milpitas,\nCA 95035 (\"Licensor\"), and ACNielsen eRatings.com, a Delaware corporation with\nits principal place of business at 177 Broad Street, Stamford, Connecticut 06901\n(\"Licensee\") (each a \"Party\" and together the \"Parties\").\n\n                                    RECITALS\n\n         Licensor is in the business of developing, marketing, servicing and\nselling interactive media and market research data related to the Internet.\nLicensor has developed certain software products with the functional and\noperational components (\"Licensor Proprietary Software\" as further described\nbelow); and\n\n         Licensee desires to obtain from Licensor, and Licensor desires to grant\nto Licensee, a license to distribute and sublicense the Collection Software and\na license to use the Back End Software on the terms set forth herein.\n\n         In consideration of these premises and of the mutual promises and\nconditions contained in this Agreement, Licensor and Licensee agree as follows:\n\n1.       Definitions\n\n         Terms with Initial Capitalization not otherwise defined below shall\nhave the meaning set forth in the Operating Agreement entered into by the\nParties of even date.\n\n         1.1  ACNIELSEN SAMPLING METHODOLOGY shall mean ACNielsen's \nproprietary analytical and statistical protocols, methodologies for \ndeveloping universe estimates, sampling methodologies and related methods, \nprocesses and technologies for the identification, selection and recruitment \nof households and Persons within certain specified market, demographic, \ngeographic and other criteria, in each case as the same exist on the \nEffective Date or as the same may hereafter be improved, enhanced or modified \nby ACNielsen, including all existing and further derivatives thereof.\n\n         1.2  BACK END SOFTWARE shall mean the Initial Release and all \nUpgrades of the part of the Licensor Proprietary Software in object code form \nthat is designed to be installed on a server to collect and aggregate the \ndata collected by the Collection Software, and process that and other data, \nincluding without limitation, banner tracking data, in connection with the \nInternet Services.\n\n         1.3  COLLECTION SOFTWARE shall mean the Initial Release and all \nUpgrades of the part of the Licensor Proprietary Software in object code form \nthat is designated to be installed on a Panel Member's computer to gather \ndata about such Panel Member's Internet usage activities.\n\n         1.4  CONTRACT QUARTER shall mean each calendar quarter period (March \n31, June 30, September 30 and December 31) following the Effective Date \nduring the Term. \n\n\n\n         1.5  CLAIMS shall have the meaning set forth in Section 9.1.\n\n         1.6  CONSULTING SERVICES shall mean services based on data collected \nby the Internet Measurement Panels or the Panels developed by Licensor or its \njoint venture partners based outside of the Territory (including Japan to the \nextent permitted under Licensor's agreements with Netratings KK, a Japanese \ncorporation, as in effect on the date hereof) which are based on the Licensor \nProprietary Software and which are custom or ad hoc analysis of the data. The \nlicensing sale of data and provision of analysis of data on a recurring basis \nare not Consulting Services.\n\n         1.7  DISASTER RECOVERY SITE and DISASTER RECOVERY SITES shall mean \none or more Sites designated from time to time by the Operating Committee as \nhot back- up sites for use in the event and to the extent that a natural \ndisaster or other force majeure event renders a Site unsuitable for use in \nconnection with the Internet Services.\n\n         1.8  DOCUMENTATION means the documentation and operating \ninstructions for the Back End Software, and Upgrades thereto.\n\n         1.9  E-COMMERCE shall mean the purchases, sales and other \ntransactions on the Internet.\n\n         1.10  E-COMMERCE SERVICE shall mean the business of tracking or \nmeasuring E-Commerce, compiling data from such measurement, licensing such \ndata to third parties and selling consulting services and analysis related \nthereto.\n\n         1.11  ENTITY shall mean any general partnership, limited \npartnership, limited liability company, corporation, joint venture, trust, \nbusiness trust, cooperative or association, or any foreign trust or foreign \nbusiness organization.\n\n         1.12  EXCLUDED COUNTRY and EXCLUDED COUNTRIES shall mean a country \ndesignated as an Excluded Country pursuant to Sections 4.2, 4.3 or 4.4 \nwherein Licensor may seek a third party to assist in providing the Internet \nServices or provide Internet Services itself in such country.\n\n         1.13  GROSS REVENUE shall mean the revenue derived in the Territory \nfrom the licensing of data relating to Internet Measurement Panels in the \nTerritory.\n\n         1.14  INITIAL RELEASE shall mean the version of the Collection \nSoftware as of the Effective Date or the Back End Software as of the \nEffective Date, as appropriate.\n\n         1.15  INITIAL ROLL-OUT COSTS shall mean the direct costs of \nestablishing Internet Measurement Panels (including costs of recruitment, \nincentives, churn and universe estimates) in the countries and of the initial \nsizes specified on Exhibit G hereto (or, where Exhibit G does not specify \nsize, panels of commercially reasonable size), provided however that to the \nextent that Licensee shall elect that the initial number of panel members \nshall exceed the number specified in Exhibit G, the incremental costs of such \nincreased number of initial panel members shall be included as \"Initial \nRoll-Out Costs.\"\n\n                                       2\n\n\n\n         1.16  INTELLECTUAL PROPERTY RIGHT and INTELLECTUAL PROPERTY RIGHTS \nshall mean all worldwide right, title and interest of a Person in, to and \nunder any and all: (a) United States or foreign patents and pending patent \napplications therefor, including the right to file new and additional patent \napplications based thereon, including provisionals, divisionals, \ncontinuations, continuations-in-part, reissues and reexaminations; (b) \ncopyrights; and (c) trade secrets, know-how, processes, methods, engineering \ndata and technical information.\n\n         1.17  INTERNET MEASUREMENT PANEL shall mean any Panel developed by \nLicensee or its Affiliates or their contractors for purposes of monitoring, \nmeasuring, analyzing and reporting on Internet activities in countries in the \nTerritory.\n\n         1.18  INTERNET PENETRATION shall mean with respect to any country \nthe percentage of residences in such country which have access to the \nInternet, provided that if such statistics shall not be available with \nrespect to a country, and another generally accepted industry measure shall \nbe available, then Internet Penetration shall mean such measure.\n\n         1.19  LICENSOR INTELLECTUAL PROPERTY RIGHTS shall mean one or more \nIntellectual Property Rights owned by Licensor or licensed to Licensor by a \nThird Party with the right to sublicense at no cost. Licensor is not under an \nobligation to seek such third party licenses.\n\n         1.20  LICENSOR \"KNOW-HOW\" shall mean all know-how, methodologies, \ntechniques, and knowledge useful in using, implementing and supporting the \nLicensor Proprietary System and the Internet Services.\n\n         1.21  LOCALIZED shall mean the localizations of an agreement, the \nCollection Software, Documentation and other material hereunder made, and \nrevised from time to time, by agreement of the Parties to meet the \nrequirements of countries in the Territory.\n\n         1.22  LOCALIZED SOFTWARE shall mean Localized versions of the \nCollection Software.\n\n         1.23  MINIMUM USAGE THRESHOLD with respect to any country shall mean \nthat such country (i) had Total Advertising Spending for the prior year of \nnot less than $1 billion (as reported by Zenith Media or similar \norganization) and (ii) Internet Penetration in the prior year of not less \nthan twenty-five percent (25%).\n\n         1.24  LICENSOR PROPRIETARY SOFTWARE shall mean all computer software \nprograms owned by or developed by or on behalf of Licensor as of the \nEffective Date and during the Term hereof relating to the Internet Services \n(but excluding software for Consulting Services and E-Commerce Services), \nincluding without limitation, the Collection Software, Localized Software, \nBack End Software and the other software identified in Exhibit A, and all \nUpgrades thereto. Subject to Section 4.1(c) below, Licensor Proprietary \nSoftware expressly excludes any Third Party Software.\n\n         1.25  OPERATING AGREEMENT shall mean the operating agreement between \nthe Parties of even date.\n\n         1.26  OPERATING COMMITTEE shall have the meaning set forth in \nSection 3.1(a) of the Operating Agreement.\n\n                                       3\n\n\n\n         1.27  OTHER AGREEMENTS shall mean the Operating Agreement, the term \nsheet for the data processing agreement between the Parties of even date and \nthe Data Processing Agreement when entered into by the Parties.\n\n         1.28  PANEL DATA shall mean all data provided by the Panel Members \nthrough the Collection Software.\n\n         1.29  PANEL MEMBER LICENSE AGREEMENT shall mean the panel member \nend-user license for the Collection Software set forth in Exhibit D as \nmodified by mutual agreement of the Parties during the Term and the Localized \nVersion of the same.\n\n         1.30  PERSON shall mean any individual or Entity, and the heirs, \nexecutors, administrators, legal representatives, successors and assigns of \nthe \"Person\" when the context so permits.\n\n         1.31  REQUESTED DEVELOPMENTS shall mean Upgrades or other \nmodifications to the Licensor Proprietary Software requested by Licensee in \naccordance with Section 29.\n\n         1.32  SITE and SITES shall mean one or more facilities established \nby the Operating Committee from time to time where servers owned or \ncontrolled by Licensee and used in connection with the Internet Services are \nlocated. \n\n         1.33  SUBSCRIBER shall mean an Entity that purchases reports from \nLicensee that contain data collected from Panel Members.\n\n         1.34  TERM shall mean the term of this Agreement as provided in \nArticle 13.\n\n         1.35  TERRITORY shall mean the world except Japan, the United \nStates, Canada and the Excluded Countries.\n\n         1.36  THIRD PARTY shall mean, with respect to a Party, any Person \nthat is not an Affiliate of such Party.\n\n         1.37  UPGRADE and UPGRADES shall mean one or more upgrades, updates, \nenhancements, error corrections, new versions, new releases, bug fixes, \npatches and other modifications to software or documentation.\n\n         1.38  USE shall mean operate, reproduce, distribute, transmit (by \nelectronic means or otherwise), make available, perform and display.\n\n2. License Grants and Restrictions\n\n         2.1  GRANT OF LICENSE IN COLLECTION SOFTWARE. Subject to the terms \nof this Agreement, Licensor hereby grants to Licensee, and Licensee hereby \naccepts, a non-transferable, exclusive, perpetual (except as provided in \nArticle 13) royalty-free license under the Licensor Intellectual Property \nRights (with the right to sublicense to its wholly-owned subsidiaries and \nPanel Members) to Use the Collection Software and Localized Software on Panel \nMembers' computers in the Territory. Licensee and its wholly-owned \nsubsidiaries may sublicense the Collection \n\n                                       4\n\n\n\nSoftware only to Panel Members pursuant to the Panel Member License\nAgreement applicable to the jurisdiction in which the computer of the Panel\nMember is located, provided, however, that a Panel Member's continued use of the\nCollection Software shall be subject to such new or revised version of the\ngoverning Panel Member License Agreement as the Parties may agree upon and issue\nfrom time to time hereunder.\n\n         2.2  GRANT OF LICENSE IN BACK END SOFTWARE. Subject to the terms of \nthis Agreement, Licensor hereby grants to Licensee, and Licensee hereby, \naccepts a non-transferable, perpetual (except as provided in Article 13), \nroyalty-free license under Licensor Intellectual Property Rights, to install, \noperate, reproduce, distribute publicly perform and publicly display the Back \nEnd Software on computers at the Sites only to provide or support the \nInternet Service and at computers at the Disaster Recovery Site(s). The \nlicense shall be exclusive in the Territory and non-exclusive in North \nAmerica. Licensee shall have the right to sublicense its rights under this \nlicense to Third Parties who are directly involved in the operation of \ncomputer facilities of Licensee or its or ACN's wholly-owned subsidiaries \n(including without limitation existing facilities of ACN's wholly-owned \nsubsidiaries) or at one or more Sites in connection with or in support of the \nInternet Services, including without limitation, any Third Party to which \ncomputer operations have been outsourced. Any license granted pursuant to \nthis Section 2.2 by Licensor to Third Parties who are not Affiliates shall be \ngranted in a written agreement approved by the Operating Committee.\n\n         2.3  GRANT OF LICENSE TO DOCUMENTATION. Subject to the terms of this \nAgreement, Licensor hereby grants to Licensee, and Licensee hereby accepts, a \nnon-transferable, non-exclusive, royalty-free license under the Licensor \nIntellectual Property Rights, to Use the (a) Documentation (and all Upgrades \nthereto) at the Sites and (b) Use end-user documentation on a Panel Member's \ncomputers with the right to sublicense to Panel Members. Licensee shall have \nthe right to sublicense its rights under this license to Third Parties who \nare directly involved in the operation of computer facilities of Licensee or \nits or ACN's wholly-owned subsidiaries (including without limitation existing \nfacilities of ACN's wholly-owned subsidiaries) or at one or more Sites in \nconnection with or in support of the Internet Services, including without \nlimitation, any Third Party to which computer operations have been outsourced.\n\n         2.4  GRANT OF LICENSOR KNOW-HOW LICENSE. Subject to the terms of \nthis Agreement, Licensor hereby grants to Licensee and Licensee hereby \naccepts a non-transferable, non-exclusive, royalty-free license, with the \nright to sublicense to Licensee's wholly-owned subsidiaries, to use Licensor \nKnow How in connection with or in support of its use of the Licensor \nPropriety Software. Licensee shall have the right to sublicense its rights \nunder this license to third parties who are directly involved in the \noperation of computer facilities of Licensee or its or ACN's wholly-owned \nsubsidiaries (including without limitation existing facilities of ACN's \nwholly-owned subsidiaries) or at one or more Sites in connection with or in \nsupport of the Internet Services, including without limitation, any party to \nwhich computer operations have been outsourced. To the extent that \nDocumentation has not been completed as of the Effective Date, Licensor shall \ncomplete and deliver Documentation to Licensee in a form agreed to by the \nParties within sixty (60) days after the Effective Date.\n\n                                       5\n\n\n\n         2.5  LOCALIZED SOFTWARE.\n\n         2.5.1  Subject to the terms hereof, Licensor shall be responsible \nfor creating the Localized Software versions for use in each jurisdiction of \nthe Territory, provided, however, that Licensee, as and when it deems \nnecessary and at its option with the assistance of third parties, shall at \nits expense prepare natural language translations of English language terms \nin the user interfaces, commands, menus and pop-up screens displayed in \nCollection Software and deliver the same to Licensor in a format agreed upon \nby Parties. Licensee shall from time to time advise Licensor of legal terms \nto which the Collection Software is required to conform (or are advantageous) \nunder the law of a particular jurisdiction. Licensor shall incorporate such \ntranslations and legal terms in the applicable Localized Software versions, \nand in addition, and without limitation, shall modify the programming code \nand make other modifications to the Collection Software (or the Localized \nSoftware versions) that are reasonably required to implement such \ntranslations or are otherwise reasonably necessary to enable Panel Members to \nsuccessfully use the Collection Software in each of the jurisdictions in the \nTerritory. Licensee shall reimburse Licensor for its direct costs in creating \nLocalized Software. The schedule for creation and distribution of the \nLocalized Software shall be decided upon pursuant to the Operating Agreement. \nEach version of Localized Software shall meet the functionality and quality \nstandards of the then-current version of the English language version of the \nCollection Software. If either Party discovers or believes the Localized \nSoftware fails to meet the functionality and quality standards of the then \ncurrent English language version of the Collection Software, Licensor shall \ncorrect such versions as necessary to meet or exceed such finality and \nquality standards. Upon delivery of such translations Licensee will assign \nits copyright in the translations to Licensor, and Licensor will immediately \ngrant to Licensee a fully paid up, worldwide non-exclusive copyright license \nto Licensee to such translations with the right to sublicense.\n\n         2.6  NOTICE OF PANEL MEMBER'S BREACH. Licensee shall promptly notify \nLicensor if Licensee becomes aware of any Panel Member's material breach of \nany provision under the governing Panel Member License Agreement. License \nfurther agrees to cooperate with Licensor in any legal action in the \nTerritory reasonably necessary to prevent or stop unauthorized use, \nreproduction, public display, public performance, derivation or distribution \nof the Collection Software or any part thereof.\n\n         2.7  RESERVATION OF RIGHTS. All rights not specifically granted to \nLicensee hereunder are reserved by Licensor, provided, however, that Licensee \nretains all of its Intellectual Property Rights in the ACNielsen Sampling \nMethodology.\n\n         2.8  RESTRICTIONS.\n\n             2.8.1  REVERSE ENGINEERING. Licensee shall not modify the \nLicensor Proprietary Software or disassemble, decompile, reverse engineer or \notherwise attempt to derive source code from the Licensor Proprietary \nSoftware.\n\n             2.8.2  EXPORT. Licensee acknowledges and agrees that it shall \nnot import, export, or re-export the Licensor Proprietary Software and \nDocumentation to any country in violation of the laws and regulations of any \napplicable jurisdiction. Licensee further agrees to defend, \n\n                                       6\n\n\n\nindemnify, and hold Licensor harmless for any losses, costs, claims, or other \nliabilities arising out of Licensee's breach of this Section.\n\n         2.9  DELIVERY. Licensor shall provide (by physical delivery or \nelectronic transmission) Licensee: one (1) copy of the Initial Release of the \nBack End Software and Collection Software in computer readable form; one (1) \ncopy each of the Documentation within thirty (30) days from the Effective \nDate of this Agreement; and one (1) copy of each Upgrade in computer readable \nform and one (1) copy of the new or revised version of the Documentation for \neach such Upgrade at the same time as or immediately after Licensor begins \nusing the Upgrade. In the event of physical delivery, all shipments will be \nF.O.B. Licensor, and delivery will be deemed complete and risk of loss or \ndamage to the Initial Release, Upgrade and Documentation will pass to \nLicensee upon delivery to the carrier.\n\n         2.10  ACCEPTANCE. The Initial Release, Upgrades and Documentation \nwill be deemed accepted by Licensee unless it gives notice to Licensor of \nnon-conformity within seven (7) days of date of its receipt. The Parties \nagree that such acceptance shall not limit any of the remedies or rights \notherwise provided to Licensee hereunder.\n\n         2.11  REQUESTED DEVELOPMENTS.\n\n              2.11.1  If, during the term of this Agreement, Licensee desires \na particular new feature, enhancement or development to the Licensor \nProprietary Software, it will notify Licensor in writing. In the event that \nLicensor is already in the process of developing or has committed to develop \nsuch Requested Development or a similar new feature or enhancement on its own \nor for a third party, Licensor will so notify Licensee in writing, within ten \n(10) days of receipt of Licensee's request, specifying the functionality and \nexpected date of availability. In such event, Licensor shall be entitled, at \nits sole election, to either (i) receive such product release from Licensor \nfree of additional charge promptly upon the specified availability date, or \n(ii) pay to Licensor a mutually agreeable fee for Licensor to develop such \nrelease by an earlier date. Under (ii) above and in all other cases, Licensor \nshall develop and incorporate Requested Developments as requested by Licensee \nunder the terms and conditions contained in this Section. Licensor will use \nreasonable commercial efforts to provide the services as soon as practicable \nand no later than the completion dates set forth in mutually agreeable \ndevelopment project specifications. All features, enhancements developments \nand deliverables under development projects pursuant to Section 2.11.2 \naccepted by Licensee shall be deemed part of the Licensor Proprietary \nSoftware.\n\n              2.11.2  At Licensee's request, Licensor and Licensee may \nmutually agree to enter into one or more development projects to develop \nRequested Developments and execute an a Development Project form. Subject to \nthe terms of this Agreement, Licensor will render the services set forth in \nthe Development Project forms accepted by Licensee. Licensor agrees to \nschedule the development of any Requested Developments ahead of all \ndevelopment projects that have not been started prior to the mutual agreement \nof Licensor and Licensee on the terms and specifications of the Requested \nDevelopment or such other reasonable timetable agreed to by Licensee. The \nParties agree that development projects undertaken pursuant to this Agreement \ninclude, but are not limited to customization development projects in support \nof specific sales to \n\n                                       7\n\n\n\nLicensee's customers which involve generally a limited amount of \ncustomization and technical services to meet the requirements of such \ncustomers.\n\n              (a)  For each development project, a Development Project form \n         shall be prepared by Licensor and signed by Licensee and Licensor. \n         The Development Project Appendix shall contain the following terms \n         and conditions as applicable: (i) the features and specifications \n         for the particular development project; (ii) the non-recurring \n         engineering fees to be paid by Licensee for the particular \n         development project; and (iii) the milestones, anticipated schedule \n         and acceptance tests for the particular development.\n\n              (b)  For each deliverable specified in the applicable Development\n         Project form, Licensee shall have thirty (30) days (or such other terms\n         as may be specified in the applicable Development Project form) from\n         the date on which Licensor meets the delivery milestone, as contained\n         in the particular Development Project form, to examine and test the\n         deliverables to determine that the deliverable conforms to the\n         acceptance test cited on the applicable Development Project form.\n         Within such period, Licensee shall provide Licensor with written\n         acceptance of the deliverable or a statement of errors to be corrected.\n         The deliverables will be deemed to have been accepted by Licensee if\n         Licensor does not receive such written acceptance or statement of\n         errors within such thirty (30) day period. Licensor shall use\n         reasonable commercial efforts to correct any such reproducible errors\n         and redeliver the deliverables to Licensee and Licensee shall, within\n         thirty (30) days of redelivery, provide Licensor with written\n         acceptance or a statement of errors. Should the redelivered deliverable\n         not conform to the relevant acceptance tests, Licensee shall elect one\n         of the following remedies by giving Licensor a statement of errors\n         within said thirty (30) day period: (a) to extend the correction period\n         for a mutually agreeable time; (b) to revise the acceptance tests in a\n         mutually agreeable manner with respect to the particular errors, or (c)\n         to terminate the development of the rejected deliverable and obtain a\n         refund in the amount of the development fees specified as payables\n         under such circumstances according to the terms of the Development\n         Project form.\n\n         2.12  MEDIAMETRIE AGREEMENT. Licensee agrees that notwithstanding \nits exclusive license in the Territory, in the event that the Parties enter \ninto an agreement with Mediametrie S.A. on substantially the terms described \nin the term sheet attached hereto as Exhibit H (the \"Mediametrie Agreement\"), \nLicensee shall waive its license rights in France for so long as the \nMediametrie Agreement is in effect.\n\n3. Compensation\n\n         3.1  GUARANTEED COMMISSIONS. Licensee agrees to pay Licensor ten \npercent (10%) of Gross Revenues (\"Commission\") for a five (5) year period \ncommencing upon the Effective Date as follows: Within thirty (30) days of the \nend of each Contract Quarter, Licensee shall pay Licensor the greater of (a) \n$375,000 or (b) ten percent (10%) of Gross Revenues due in such Contract \nQuarter until such time as the total of such payments equals $7.5 million. \nThereafter, Licensee shall pay Licensor within thirty (30) days of the end of \neach Contract Quarter a payment equal to the difference between (a) ten \npercent (10%) of the cumulative Gross \n\n                                       8\n\n\n\nRevenues to date and (b) total Commissions paid to date until such time as \nsuch payments equal $15 million. The Parties agree that the first Contract \nQuarter for which Commissions shall be due is the Contract Quarter beginning \non October 1, 1999.\n\n         3.2  MAINTENANCE FEES. Licensee shall pay Licensor an annual \nmaintenance fee (\"Maintenance Fee\") as set forth in Exhibit E (\"Fees\").\n\n         3.3  TAXES AND ASSESSMENTS.\n\n             3.3.1  In addition to any other payments due under this \nAgreement, Licensee agrees to pay, indemnify and hold Licensor harmless from \nany sales, use, excise, import or export, value-added or similar tax or duty, \nand any other tax not based upon Licensor's net income, including any \npenalties and interest, and all government permit or license fees and all \ncustoms and similar fees, levied upon the use or distribution of the Licensor \nProprietary Software which Licensor may incur in respect of this Agreement, \nand any costs associated with the collection or withholding of any of the \nforegoing items (\"Taxes\").\n\n             3.3.2  If Licensee fails to pay any Taxes as of the original due \ndate for such Taxes and Licensor receives any assessment or other notice \n(collectively the \"Assessment\") from any governmental taxing authority \nproviding that such Taxes are due from Licensor, Licensor shall give Licensee \nwritten notice of the Assessment and Licensee shall pay to Licensor or the \ntaxing authority the amount set forth as due in the Assessment within thirty \n(30) days of receipt of such written notice from Licensor.\n\n         3.4  PAYMENT TERMS. The pricing for the reports for Subscribers \nshall be determined pursuant to the Operating Agreement. Licensee shall make \nall payments therefor in United States currency. Payments calculated in a \nnon-U.S. currency shall be converted to U.S. currency on the last day of the \nContract Quarter. Licensee shall convert Licensee shall pay Licensor the \nCommissions owed pursuant within thirty (30) days of the end of the Contract \nQuarter in which statements upon which such Commissions are due. The \nMaintenance Fee for each Contract Quarter shall be due and payable within \nthirty (30) days of the Contract Quarter. If for any reason payments owing to \nLicensor are not paid when due, then interest shall accrue on the unpaid \nbalance at the rate of eighteen percent (18%) per annum or part thereof, \nbeyond the due date, or the highest amount allowed by United States law, \nwhichever is lower.\n\n         3.5  REPORTING. In conjunction with the above Commission payment, \nLicensee shall submit to Licensor a clearly itemized royalty statement \nsetting forth the amounts received from each Subscriber. Each royalty \nstatement shall be signed and certified to be correct by the an officer of \nLicensee. The receipt by Licensor of any royalty statement or any Commission \npayment shall not bind Licensor as to the correctness of the statement or \npayment.\n\n         3.6  ACCESS AND AUDIT. Licensor shall be entitled, annually during \nthe term of this Agreement, and once within two (2) years after expiration or \ntermination of this Agreement, to an independent audit of Licensee's books of \naccount, records, cash receipts and other pertinent data, to determine \nLicensee's compliance with the payment obligations herein pursuant to Section \n5.3 of the Operating Agreement. If the audit shows that there is a deficiency \nin the payment of any royalty, the deficiency shall become immediately due \nand payable along with \n\n                                       9\n\n\n\ninterest thereon at the rate of one and a half percent (1 1\/2%) per month or \nthe highest rate allowed by law, whichever is lower, from the date on which \nthe amount became due Licensor from Licensee.\n\n4.  Territory; Internet Measurement Panel Establishment\n\n         4.1  The Parties acknowledge that Licensee shall focus its efforts \non the establishment of the Internet Measurement Panels in the thirty-three \n(33) countries set forth in Section 1 of Exhibit G hereto.\n\n         4.2  With respect to each of the countries or regions set forth in \nSection 2 of Exhibit G, Licensee shall establish Internet Measurement Panels \nwith the specified number of persons per panel by the end of the specified \nperiod covering such country or region. In the event that Licensee fails to \nestablish an Internet Measurement Panel as contemplated by this Section 4.2, \nLicensor, at its option, may give written notice to Licensee of its intention \nto designate such country or each of the countries contained in the region as \nan Excluded Country. If Licensee fails to establish an Internet Measurement \nPanel with the specified number of persons within ninety (90) days of its \nreceipt from Licensor of the aforementioned written notice, Licensor may then \ndesignate such country or each of the countries contained in the region as an \nExcluded Country.\n\n         4.3  With respect to each of the countries set forth in Section 3 of \nExhibit G, Licensee shall establish Internet Measurement Panels of a \ncommercially reasonable size by the end of the specified period covering such \ncountry. In the event that Licensee fails to establish an Internet \nMeasurement Panel in a commercially reasonable manner in any country as \ncontemplated by this Section 4.3, Licensor, at its option, may give written \nnotice to Licensee of its intention to designate such country as an Excluded \nCountry. If Licensee fails to establish an Internet Measurement Panel in a \ncommercially reasonable manner within ninety (90) days of its receipt from \nLicensor of the aforementioned written notice, Licensor may then designate \nsuch country as an Excluded Country.\n\n         4.4  Commencing January 1, 2005, Licensor shall have the right to \ndesignate up to two countries per year not within the group of thirty three \ncountries on Exhibit G for establishment of an Internet Measurement Panel; \nprovided that Licensor must (i) notify Licensee in writing by June 30 of the \nprior year which countries it is designating, if any, for the upcoming year, \nand (ii) Licensor must establish to Licensee's reasonable satisfaction that \nany country it designates meets the Minimum Usage Threshold. In the event \nthat Licensee fails to establish an Internet Measurement Panel in a \ncommercially reasonable manner in a country designated pursuant to this \nSection 4.4, Licensor, at its option, may submit to Licensee in writing a \nproposal regarding the establishment of an Internet Measurement Panel in such \ncountry, which proposal shall specify the time period for providing Internet \nService in such country and the minimum number of Panel Members for the \nInternet Measure Panel for such country. Licensee shall have sixty (60) \nBusiness Days from receipt of such proposal to elect to match the proposal by \nproviding written notice to such effect to Licensor. In the event Licensee \nelects to match such proposal but fails to establish an Internet Measurement \nPanel in accordance with such proposal, Licensor, at its option, shall have \nthe right to designate such country as an Excluded Country. If Licensee \nelects not to match the proposal, Licensor, at its option, may seek a third \nparty to assist in \n\n                                      10\n\n\n\nproviding the Internet Service or provide the Internet Service itself in such \ncountry; provided that in the event Licensor or a third party develops a \nproposal which contemplates a longer lead time for establishment of an \nInternet Measurement Panel or a smaller panel size than the proposal Licensee \nhad previously elected not to match, Licensor shall be obligated to deliver a \ncopy of such new proposal to Licensee, which shall specify the time period \nfor providing Internet Service in such country and the minimum number of \nPanel Members for such country, and Licensee shall have the right to match \nthe new proposal within sixty (60) Business Days; provided further that if \nLicensee elects not to match the last received proposal, Licensor shall have \nthe right to designate such country as an Excluded Country.\n\n         4.5  MAINTENANCE CRITERIA. If Licensee has established an Internet \nMeasurement Panel in a country and (i) fails to maintain the size of the \nInternet Measurement Panel set forth in Section 2 of Exhibit G in countries \nin which Internet Measurement Panels were established pursuant to Section \n4.2, or (ii) fails to maintain an Internet Measurement Panel of commercially \nreasonable size for those countries in which Internet Measurement Panels were \nestablished pursuant to Section 4.3 or 4.4, then Licensor may give Licensee \nninety (90) days written notice (the \"EC Notice Period\") of its intention to \ndesignate such country as an Excluded Country. If Licensee fails to increase \nthe size of the Internet Measurement Panel to its required size prior to the \nexpiration of the EC Notice Period, Licensor may designate such country an \nExcluded Country.\n\n         4.6  AMENDMENTS. The Internet Measurement Panel establishment \nrequirements and maintenance provisions of this Section 4 may only be amended \nby the Operating Committee Approval (as such term is defined in the Operating \nAgreement).\n\n5. [Intentionally Left Blank]\n\n6. Business Panel Establishment\n\n         Commencing January 1, 2002, Licensor shall have the right to designate\nup to three countries per year for establishment of Business Panels, subject to\nthe following restriction:\n\n         6.1  Licensor can only designate countries in which Home Panels have \nalready been established and operating for at least one year;\n\n         6.2  Licensor must notify Licensee no later than June 30 of the year \nprior which countries it is designating, if any, for the upcoming year;\n\n         6.3  To the extent that Licensee unilaterally establishes a Business \nPanel in a country in which a Home Panel has already been established, the \nnumber of countries in which Licensor can designate in that same year shall \nbe reduced accordingly. For example, assume Licensor designates three \ncountries for establishment of Business Panels in 2003. If Licensee provides \nwritten to Licensor prior to January 1, 2003 of Licensee's intention to \nunilaterally establish Business Panels in one country in 2003 which has not \nbeen designated by Licensor in accordance with this Section, then Licensor's \nright to designate countries under this Section shall be reduced to two (and \nshall be limited to two of the countries originally designated); and\n\n                                      11\n\n\n\n         6.4  In the event that Licensee fails to establish a Business Panel \nin a commercially reasonable manner in a country designated pursuant to this \nSection 6.1, Licensor, at its option, may submit to Licensee in writing a \nproposal regarding the establishment of a Business Panel in such country, \nwhich proposal shall specify the time period for establishing a Business \nPanel in such country and the minimum number of Panel Members for such \ncountry. Licensee shall have thirty (30) Business Days from receipt of such \nproposal to elect to match the proposal by providing written notice to such \neffect to Licensor. In the event Licensee elects to match such proposal but \nfails to establish a Business Panel in accordance with such proposal, \nLicensor, at its option, shall have the right to designate such country as an \nExcluded Country solely with respect to Business Panels. If Licensee elects \nnot to match the proposal, Licensor, at its option, may seek a third party to \nassist in establishing a Business Panel in such country; provided that in the \nevent Licensor or a third party develops a proposal which is different than \nthe proposal Licensee had previously elected not to match, Licensor shall be \nobligated to deliver a copy of such new proposal to Licensee, which shall \nspecify the time period for establishing the Business Panel in such country \nand the minimum number of Panel Members for such country, and Licensee shall \nhave the right to match the new proposal; provided further that if Licensee \nelects not to match the last received proposal, and such proposal is not \nexecuted pursuant to its terms, Licensor shall not have the right to \ndesignate such country as an Excluded Country with respect to Business Panels.\n\n7.  Proprietary Rights Notices\n\n         Ownership Title and ownership of all Intellectual Property Rights in\nthe Licensor Proprietary Software will at all times remain the property of\nLicensor. Licensee agrees not to remove or obliterate any copyright, trademark\nor proprietary rights notices of Licensor or Licensor's Suppliers from the\nLicensor Proprietary Software or Documentation. Licensee further agrees to\nreproduce all such notices found in the Initial Release, including but not\nlimited to those specified in Exhibit C (\"Trademarks\"), on all copies of the\nLicensor Proprietary Software and Documentation.\n\n         7.1  SUPPORT AND MAINTENANCE. During any period for which Licensee \nhas purchased maintenance and support services, Licensor shall provide to \nLicensee the Maintenance and Support Services as set forth in Exhibit F \n(\"Support and Maintenance\").\n\n8. Representations and Warranties of Licensor\n\n         8.1  Licensor represents and warrants to Licensee that the \nstatements contained in this Section 8 are true, correct and complete as of \nthe Effective Date, provided, however, that the statements set forth in \nSection 8.3 will be true, correct and complete with respect to any Upgrade \nonly upon the date of the release of such Upgrade.\n\n         8.2  Licensor has the right to grant Licensee, free of liens, \nclaims, encumbrances and other restrictions, the rights set forth in Section \n2.1 in each jurisdiction in the Territory and the rights set forth in Section \n2.2 pursuant to the terms hereof.\n\n         8.3  Licensor warrants to Licensee that (a) the Initial Release of \nthe Collection Software shall perform substantially in accordance with the \nspecifications and \n\n                                      12\n\n\n\nDocumentation related to the Collection Software delivered to Licensee on the \nEffective Date or within sixty (60) days thereof; (b) that the Upgrades to \nthe Collection Software shall perform substantially in accordance with the \nSpecifications and Documentation related to such Upgrade to the Collection \nSoftware; (c) that the Initial Release of the Back End Software shall perform \nsubstantially in accordance with the specifications and Documentation related \nto the Back End Software delivered to Licensee on the Effective Date or \nwithin sixty (60) days thereof; and (d) that the Upgrades to the Back End \nSoftware performs substantially in accordance with the specifications and \nDocumentation related to such Upgrade to the Back End Software. Licensee \nagrees to report to Licensor in a form and with supporting documentation any \nfailure to meet the warranty. Licensor shall use the efforts set forth in \nExhibit F for errors which are reproducible by Licensor (\"Errors\"). Licensee \nshall assist Licensor in verifying, diagnosing and correcting Errors. A \nbreach of this Section 8.3 within sixty (60) days of the Effective Date shall \nbe a material breach under Section 14.0.2.\n\n         8.4  Each of the Licensor Proprietary Software, Licensor Know-How \nand Documentation, and each part thereof, does not infringe or violate any \ncopyright, trade secret or know-how any third party and no claims that the \nLicensor Proprietary Software, Licensor Know-How and Documentation violate \nthe copyrights, trade secrets or know-how of a Third Party are pending or \nhave been asserted or threatened as of the Effective Date.\n\n         8.5  To the best knowledge of Licensor, the Licensor Proprietary \nSoftware and Licensor Know-How does not infringe the patent of any Third \nParty issued on or before the Effective Date, and that to the best of the \nknowledge of Licensor, no claims that the Licensor Proprietary Software or \nthe Licensor Know-How infringe the patent rights of a third party are pending \nor have been asserted or are threatened as of the Effective Date.\n\n         8.6  To the best of Licensor's knowledge, Licensor has all necessary \nrights to enter into this Agreement without violating any other agreement or \ncommitment to which it is subject, provided, however, that this \nrepresentation does not increase the scope of the representation in Section \n8.5 by making any representations regarding unasserted patent claims by third \nparties.\n\n         8.7  To the best of Licensor's knowledge, the Licensor Proprietary \nSoftware does not contain, nor will contain upon delivery Harmful Code, as \nthat term is defined below. \"Harmful Code\" shall mean any computer \nprogramming code which is constructed with the intent to and which does, \ndamage, interfere with or otherwise improperly affect other computer \nprograms, data files or hardware without the knowledge or consent of the \ncomputer user. \"Harmful Code\" includes, but is not limited to, \nself-replicating and self-propagating program instructions commonly referred \nto as \"viruses\" or \"worms.\"\n\n         8.8  The Licensor Proprietary Software will be able to accurately \nprocess data (including but not limited to, calculating, comparing, and \nsequencing, from and into and between, the twentieth and twenty-first \ncenturies, including leap year calculations), without diminution in function \nor performance, to the extent that any third party hardware and\/or software \nthat the user of the Collection Software uses in conjunction with the \nLicensor Proprietary Software exchanges data accurately with the Licensor \nProprietary Software.\n\n                                      13\n\n\n\n         8.9  The obligations set forth in Exhibit F and the provisions of \nSections 9 and 14.0.4 are the sole and exclusive remedies for breach of \nSections 8.1- 8.8 inclusive. EXCEPT AS PROVIDED IN SECTION 8, LICENSOR \nDISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF \nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF \nTHIRD PARTY RIGHTS.\n\n9. Indemnification\n\n         9.1  INDEMNIFICATION.\n\n             9.1.1  Licensor hereby agrees, at its expense, to defend, \nindemnify and hold harmless Licensee and its Affiliates from and against any \nand all claims, losses, damages, expenses, liabilities and costs (including \nreasonable attorneys' fees) (\"Claim\" or \"Claims\") brought against any of them \nby one or more Panel Members arising out of the provision of technical \nsupport services by Licensor for the Collection Software or the performance \nof the Collection Software by any Panel Member, including, without \nlimitation, any Claims that the Collection Software as properly connected \nthereto damaged or otherwise harmed that computers or any other computer or \ncomputer hardware when properly used (except to the extent that such damages \nare caused by a Panel Member's failure to follow technical support guidelines \nor instructions established by Licensor and communicated to Licensee with \nrespect to the Collection Software or errors by Licensee or its Affiliates or \nother problems introduced as part of the reproduction or distribution of the \nCollection Software by Licensee or its Affiliates) or resulting from a breach \nor alleged breach of Section 8.7.\n\n             9.1.2  Licensor agrees, at its expense, to defend, indemnify and \nhold harmless Licensee and its Affiliates from and against any and all claims \nresulting from (a) a breach or alleged breach of the warranty set forth in \nSection 8.4 in any country in the world and (b) a Claim alleging of patent \ninfringement or alleging patent infringement in North America and in any \ncountry in the Territory. Licensor's obligations under Sections 9.1.1 and \n9.1.2 are conditioned upon the terms and conditions below:\n\n                   (a)  Licensee shall give Licensor prompt notice, in \n         writing, of the claim.\n\n                   (b)  Licensee shall grant Licensor exclusive control over \n         its defense and settlement, provided that Licensee at its expense \n         may select counsel to participate on its behalf in the action and \n         shall have the right to approve in advance all settlements in the \n         event of a proposed settlement.\n\n                   (c)  Licensee provides reasonable information and \n         assistance  to Licensor, at Licensor's expense, in the defense of \n         such claim.\n\n                   (d)  Licensor may, at no cost to Licensee, (i) obtain for \n         Licensee the right to continue to use the Licensor Proprietary \n         Software, Licensor Know-How and Documentation pursuant to the terms \n         hereof if available upon reasonable commercial terms, (ii) modify \n         the Licensor Proprietary Software, Licensor Know-How and \n         Documentation so as to remove the cause of the Claim and render the \n         Licensor \n\n                                      14\n\n\n\n         Proprietary Software, Licensor Know-How and Documentation (provided \n         that Licensor's modification will not materially affect the \n         performance of the Licensor Proprietary Software), or (iii) replace \n         the Licensor Proprietary Software, Licensor Know-How and \n         Documentation with an equally suitable, non-infringing \n         substitutions, which will have substantially the same function as \n         the provisions of this Agreement.\n\n             9.1.3  EXCEPTIONS. Licensor's obligations under this Section are \nnot applicable to the Licensor Proprietary Software or portions thereof:\n\n                   (a)  that are modified by Licensee or third parties after \n         shipment by Licensor;\n\n                   (b)  that are combined with other products, processes or\n         materials where the alleged infringement relates to such combination;\n         or\n\n                   (c)  where Licensee continues such alleged infringing \n         activity after being notified thereof or after being informed of \n         modifications that would have avoided the alleged infringement.\n\n         9.2  NOTICE OF ACTION. In the event that any such Claims in Section \n9.1 actions or demands are made against either Party for the Licensor \nProprietary Software, Licensee will promptly furnish to Licensor copies of \nany and all documents (inclusive of all correspondence and pleadings other \nthan attorney-client communications) pertaining thereto. Licensee will also \nkeep Licensor continuously and fully informed in a timely manner as to the \nstatus of the same and will provide copies of any additional documents \npertaining thereto.\n\n         9.3  SECTIONS 9 AND 14 STATE LICENSEE'S SOLE AND EXCLUSIVE REMEDY \nWITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF \nANY KIND AND IS IN LIEU OF ALL OTHER WARRANTIES OF NON-INFRINGEMENT, EXPRESS \nOR IMPLIED.\n\n         9.4  Licensee Indemnification Obligation.\n\n             9.4.1  Licensee hereby agrees, at its expense, to defend, \nindemnify and hold harmless Licensor from and against any claims arising out \nof performance by Licensee of the ACN Panel Maintenance Service; technical \nsupport services and performance of the Collection Software hereunder, except \nto the extent that Licensor is responsible for any such losses and damages \npursuant to Section 9.1; and a Claim by a Third Party that the ACNielsen \nSampling Methodology as used in connection with the Internet Services in the \nTerritory infringes the copyright, trade secrets or know-how of any Third \nParty. Licensee is not liable for any claims of infringement of Third Party \nintellectual property rights by the Collection Software. Licensor's \nobligations under this Section are conditioned upon the terms and conditions \nset forth below:\n\n                   (a)  Licensor shall give Licensee prompt notice, in \n         writing, of the claim. \n\n                                      15\n\n\n\n                   (b)  Licensor shall grant Licensee exclusive control over \n         its defense and settlement, provided that Licensor may participate \n         in such action at Licensor's own expense.\n\n                   (c)  Licensor provides reasonable information and \n         assistance to Licensee, at Licensee's expense, in the defense of \n         such claim.\n\n         9.5  NOTICE OF ACTION. In the event that any such Claims are made \npursuant to Section 9.4, Licensor will promptly furnish to Licensee copies of \nany and all documents (inclusive of all correspondence and pleadings other \nthan attorney-client communications) pertaining thereto. Licensor will also \nkeep Licensee continuously and fully informed in a timely manner as to the \nstatus of the same and will provide copies of any additional documents \npertaining thereto.\n\n10.  Confidentiality\n\n         10.1  CONFIDENTIAL INFORMATION. For the purposes of this Agreement, \n\"Confidential Information\" shall mean any information delivered by one Party \nto another which the receiving party (\"Receiving Party\") knows or has reason \nto know is considered confidential by disclosing party (\"Disclosing Party\"). \nWithout limiting the foregoing, the ACNielsen Sampling Methodology and the \nspecifications for the Back-End Software and Documentation that is not \nintended for use by Panel Members shall be deemed Confidential Information. \nThe Receiving Party agrees to take precautions to prevent any unauthorized \ndisclosure or use of Confidential Information of the Disclosing Party \nconsistent with precautions used to protect the Receiving Party's own \nconfidential information, but in no event less than reasonable care. Except \nas provided below, Licensee agrees to treat the Confidential Information as \nconfidential and shall not disclose the Confidential Information to any \nperson or Entity without the Disclosing Party's prior written consent. The \nReceiving Party may only disclose the Confidential Information to its \nAffiliates, employees and agents who reasonably require access to such \nConfidential Information to perform obligations under this Agreement. The \nReceiving Party shall take all appropriate steps to ensure that its employees \nand contractors who are permitted access to the Confidential Information of \nthe Disclosing Party agree to act in accordance with the obligations of \nconfidentiality imposed by this Agreement. Should any Party be faced with \nlegal action to disclose Confidential Information under this Agreement, the \nReceiving Party shall promptly notify the Disclosing Party and upon the \nDisclosing Party's request, shall reasonably cooperate with the Disclosing \nParty in contesting such disclosures. The obligations imposed by this Section \nshall survive any termination of this Agreement.\n\n         10.2  NON-CONFIDENTIAL INFORMATION. The obligations set forth in \nSection 10.1 shall not apply to any particular portion of any Confidential \nInformation to the extent that: (i) now or subsequently becomes generally \nknown or available through no act or omission of Receiving Party; (ii) was or \nis known at the time of receipt of same from Disclosing Party; (iii) is \nprovided by the Disclosing Party to a third party without restriction on \ndisclosure; (iv) is subsequently rightfully provided to Receiving Party by a \nthird party without restriction on disclosure; or (v) is independently \ndeveloped by Receiving Party and as can be demonstrated from Receiving \nParty's business records and documentation, provided the person or persons \ndeveloping same had not \n\n                                      16\n\n\n\nhad access to the Confidential Information of the Disclosing Party prior to \nsuch independent development.\n\n11. Liability\n\n         11.1  WAIVER OF CONSEQUENTIAL DAMAGES. EXCEPT WITH RESPECT TO A \nBREACH OF SECTION 10, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY \nSPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR STATUTORY DAMAGES RELATED TO \nANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT, EVEN IF A PARTY IS \nINFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.\n\n         11.2  LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO AMOUNTS \nPAYABLE UNDER SECTIONS 9.1.2 AND 10, NO PARTY'S LIABILITY TO THE OTHER UNDER \nTHIS AGREEMENT SHALL EXCEED THE AMOUNTS ACTUALLY PAID TO LICENSOR BY LICENSEE \nUNDER THIS AGREEMENT, PROVIDED HOWEVER, THAT THE CAP ON LICENSOR'S \nINDEMNIFICATION OBLIGATION PURSUANT TO 9.1.2(b) SHALL BE THE TOTAL \nCOMMISSIONS PAID BUT IN NO EVENT LESS THAN $7.5 million OR GREATER THAN $15 \nmillion.\n\n12. Dispute Resolution\n\n         Disputes arising out of this Agreement shall be governed by Article\nXIII of the Operating Agreement.\n\n13. Term\n\n         The Term of this Agreement shall begin on the Effective Date and shall\ncontinue unless and until terminated pursuant to Section 14.\n\n14. Termination. This Agreement may be terminated as follows:\n\n                  14.0.1  by the mutual written consent of the Parties; or\n\n                  14.0.2  by either Party upon a breach of any provision of \nthis Agreement by the other Party, which breach remains uncured for sixty \n(60) days after written notice thereof to such other Party, and as a result \nof which breach the non-breaching Party will be unable to substantially \nrealize the benefits that it would have realized from this Agreement and the \nOther Agreements absent such breach; or\n\n                  14.0.3  by either Party upon the happening of any event \nunder an Other Agreement that, pursuant to the terms of such Other Agreement, \ngives rise to the right of such Party to terminate such Other Agreement, \nprovided, that if the Party entitled to terminate this Agreement pursuant to \nthis Section 14.0.3 does so, it shall also terminate the Other Agreement(s) \ngiving rise to its right under this Section 14.0.3.\n\n                                      17\n\n\n\n                  14.0.4  by Licensee\n\n                          (a) if that Licensor is unable to satisfactorily \n         correct a Critical Error and\/or Significant Error (as such terms are \n         defined pursuant to Section 1.3 of Exhibit F) that materially \n         impairs significant functionality of the Licensor Proprietary \n         Software within six (6) months, provided, however, that Licensee \n         shall not have the right to terminate if Licensor can reinstate the \n         previous version of the Licensor Proprietary Software (which shall \n         be at Licensor's expense) and that version does not manifest a \n         Critical Error or Significant Error at the time of reinstatement;\n\n                        (b) if remedies provided in Section 9.1.2(d) are\n         insufficient to provide Licensee with the right to continue using any\n         part of the Licensor Proprietary Software subject to a Claim of patent\n         infringement or alleged patent infringement, provided that Licensee\n         shall not have the right to terminate if to the extent that Licensor is\n         able to avoid infringement or alleged infringement of the patent rights\n         of a Third Party by (a) having Licensee revert to the prior version of\n         a part of the Licensor Proprietary Software, Licensee agrees to do so\n         at Licensor's expense, provided that no material degradation in the\n         Internet Services will result, and\/or (b) by having the use of Back End\n         Software or the conduct of Internet Services relocated to a different\n         jurisdiction, Licensee agrees to do so at Licensor's expense to the\n         extent reasonably feasible, provided that no material degradation\n         Internet Services will result; and\n\n                        (c) provided further that Licensee's right to terminate\n         pursuant to the foregoing subsections (a) and\/or (b) shall not limit\n         Licensee's rights and remedies otherwise available in this Agreement or\n         at law.\n\n                                      18\n\n\n\n                  14.0.5  by either Party if the other Party:\n\n                          (a)  makes an assignment for the benefit of \n         creditors;\n\n                          (b)  admits in writing its inability to pay its \n         debts as they become due;\n\n                          (c)  distributes to its creditors any composition, \n         extension or similar kind of agreement which purpose is to reach an \n         out of court settlement with its creditors;\n\n                          (d)  causes or consents to the appointment of a \n         receiver, trustee, liquidator or similar officer for all or any \n         material portion of its property;\n\n                          (e)  files in any court, pursuant to any statute of \n         the United States or any state, any petition in any bankruptcy, \n         reorganization, composition, extension, arrangement or insolvency \n         proceeding;\n\n                          (f)  shall be dissolved or fails to maintain its \n         corporate existence;\n\n                          (g)  has its ability to conduct business suspended \n         or terminated;\n\n                          (h)  becomes insolvent;\n\n                          (i)  makes or consents to a notice of intended bulk \n         transfer of its assets;\n\n                          (j)  convenes a meeting of creditors to restructure \n         its debts;\n\n                          (k)  takes any corporate or other action for the \n         purpose of effectuating any of the foregoing.\n\n                          (l)  if any petition is filed against the other \n         Party in any court, pursuant to any statute of the United States or \n         any state, any bankruptcy, reorganization, composition, extension, \n         arrangement or insolvency proceeding, and such court either:\n\n                          (m)  enters an order for relief;\n\n                              (i)   approves the petition;\n\n                              (ii)  assumes jurisdiction of the subject matter,\n                                    or\n\n                              (iii) fails to dismiss such proceeding within \n                                    45 days after the institution thereof.\n\n                          (n)  if any proceeding, a receiver, trustee, \n         liquidator or similar officer is appointed to administer and\/or \n         liquidate all or any portion of the property of the other Party and \n         such appointment is not vacated or set aside within 45 days after \n         the appointment of such receiver, trustee, liquidator or similar \n         officer.\n\n         14.2 EFFECT OF TERMINATION. In the event of any termination of this\nAgreement, each Party shall be entitled to the remedies provided under Section\n7.2 of the Operating Agreement, to \n\n\n\n\nthe rights and remedies afforded pursuant to Section 365(n) of the Bankruptcy \nCode, and to any and all other legal and equitable remedies to which such \nparty may be entitled under the law. Upon the termination or expiration of \nthis Agreement, Licensee shall terminate further use and distribution of the \nCollection Software, cease use of the Back End Software and, return or \ndestroy all copies of the Back End Software and Collection Software to \nLicensor. The Parties agree, however, that the licenses granted to Panel \nMembers to use the Collection Software shall remain in effect according to \ntheir terms.\n\n         14.3  SURVIVAL. The defined terms contained herein and the rights \nand obligations in the following Sections shall survive any termination of \nthis Agreement: 3 (\"Compensation\"), 8 (\"Representations and Warranties of \nLicensor\"), 9 (\"Indemnification\"), 10 (\"Confidentiality\"), 11 (\"Liability\"), \n12 (\"Dispute Resolution\"), 14 (\"Termination\"), 15 (\"Applicability of \nBankruptcy Code\"), and 16 (\"General Provisions\").\n\n15. Applicability of Bankruptcy Code\n\n         15.1  The Parties intend and agree that (a) the rights granted under \nLicensor's patented copyrights hereunder and in the Other Agreements are \nindividually, and in the aggregate deemed to be \"intellectual property\" as \nthat term is defined in Section 101 of the United States Bankruptcy Code, as \nin effect as of the date hereof (\"Bankruptcy Code\"); and (b) the provisions \nof Section 365(n) of the Bankruptcy Code shall be applicable to the rights \nand obligations of the Parties upon the occurrence of one or more of the \nevents set forth in Section 14.0.5.\n\n16. General Provisions\n\n         16.1  ALLOCATION OF RISK. The Sections on limitation of liability, \nlimitation of warranties and limited warranties allocate the risks of this \nAgreement between the Parties. This allocation is reflected in the pricing of \nthe license fees and is an essential element of the basis of the bargain \nbetween the Parties.\n\n         16.2  AMENDMENT. This Agreement may be amended or supplemented only \nby a writing that is signed by duly authorized representatives of both \nparties.\n\n         16.3  ASSIGNMENT. Licensor may assign this Agreement to any person \nto who it transfers all or substantially all of its rights in the Licensor \nProprietary Software. Except as provided in the preceding sentence, neither \nParty may assign, voluntarily, by operation of law, or otherwise, any rights \nor delegate any duties under this Agreement (other than the right to receive \npayments) without the other party's prior written consent. Any attempt to do \nso without that consent will be void. This Agreement will bind and inure to \nthe benefit of the parties and their representative successors and permitted \nassigns.\n\n         16.4  CHANGE OF CONTROL. The sale, assignment, transfer, pledge \nhypothecation, mortgage or disposal, whether by will, gift, operation of law \n(including, but not limited to, by merger or consolidation) or otherwise, as \nwell as the encumbrance (\"Transfer\") of all or any part of the shares of \nLicensee (\"Shares\") owned by ACN which results in a Change of Control (as \ndefined below) shall be a material breach of this Agreement. For purposes of \nthe preceding sentence, each of the following shall constitute a Change of \nControl: (a) any merger or consolidation with a Direct Competitor (as defined \nbelow) involving (i) the Licensee or ACN, \n\n                                      20\n\n\n\n(ii) any entity directly or indirectly controlled by ACN that owns Shares; \n(b) a Transfer to a Direct Competitor in one or more transactions, by (i) ACN \nof beneficial ownership of shares representing either fifty percent (50%) or \nmore of the combined voting power of the then outstanding voting securities \nof Licensee or the right to elect a majority of the board of directors or \ngoverning body, as the case may be, of Licensee, or (ii) ACN of beneficial \nownership of securities of any entity owning the Shares directly or \nindirectly controlled by ACN representing either 50% or more of the combined \nvoting power of the then outstanding voting securities of such entity or the \nright to elect a majority of the board of directors or governing body, as the \ncase may be, of such entity. Direct Competitor is an entity whose primary \nbusiness is any of the following (i) the tracking or measuring audience, \nadvertising and viewing activities on the Internet, (ii) providing licenses \nof such data, or (iii) providing consulting services based on such data.\n\n         16.5  CHOICE OF LAW. This Agreement will be governed by and \nconstrued in accordance with the laws of the United States and the State of \nCalifornia as applied to agreements entered into and to be performed entirely \nwithin California between California residents. The Parties agree that the \nUnited Nations Convention on Contracts for the International Sale of Goods \n(1980) is specifically excluded from application to this Agreement.\n\n         16.6  COMPLIANCE WITH LAWS\/FOREIGN CORRUPT PRACTICES ACT. Licensee \nagrees at all times to comply with applicable laws and regulations in its \nperformance of this Agreement, including, without limitation, the provisions \nof the United States' Foreign Corrupt Practices Act (\"FCPA\"). Licensee will \nindemnify, defend and hold harmless Licensor and its respective officers, \nagents and employees from and against any and all losses, costs, claims and \nother liabilities arising out of, relating to or resulting from Licensee's \nfailure to comply with the provisions of applicable laws or the FCPA.\n\n         16.7  COUNTERPARTS. This Agreement may be executed simultaneously in \ntwo or more counterparts, each of which will be deemed an original, but all \nof which together will constitute one and the same instrument.\n\n         16.8  ENTIRE AGREEMENT. Except for the Operating Agreement, this \nAgreement, including all exhibits to this Agreement, constitutes the entire \nagreement between the Parties relating to this subject matter and supersedes \nall prior or simultaneous representations, discussions, negotiations and \nagreements, whether written or oral. The headings and captions are inserted \nfor convenience of reference only and do not constitute a part of or modify \nany of the terms of this Agreement.\n\n         16.9  FORCE MAJEURE. Neither party will be liable for any failure or \ndelay in performance under this Agreement which might be due, in whole or in \npart, directly or indirectly, to any contingency, delay, failure, or cause \nof, any nature beyond the reasonable control of such party, including, \nwithout in any way limiting the generality of the foregoing, fire, explosion, \nearthquake, storm, flood or other weather, unavailability of necessary \nutilities or raw materials, strike, lockout, unavailability of components, \nactivities of a combination of workmen or other labor difficulties, war, \ninsurrection, riot, act of God or the public enemy, law, act, order, export \ncontrol regulation, proclamation, decree, regulation, ordinance, or \ninstructions of Government or other public authorities, or judgment or decree \nof a court of competent jurisdiction (not arising \n\n                                      21\n\n\n\nout of breach by such party of this Agreement). In the event of the happening \nof such a cause, the party whose performance is so affected will give prompt \nwritten notice to the other party, stating the period of time the same is \nexpected to continue.\n\n         16.10  LICENSEE'S GOVERNMENTAL APPROVAL OBLIGATIONS. Except as \nprovided in the Operating Agreement, Licensee shall, at its own expense, \nobtain and arrange for the maintenance in full force and effect of all \ngovernmental approvals, consents, licenses, authorizations, declarations, \nfilings, and registrations as may be necessary or advisable for the \nperformance of all the terms and conditions of this Agreement including, but \nnot limited to, distribution approval, foreign exchange approvals, import and \nexport licenses and all approvals which may be required to realize the \npurpose of this Agreement.\n\n         16.11  NOTICES, ETC. All notices and other communications hereunder \nshall be deemed given if given in writing and delivered by hand, prepaid \nexpress or courier delivery service or by facsimile transmission or mailed by \nregistered or certified mail (return receipt requested), facsimile or postage \nfees prepaid, to the Party to receive the same at the respective addresses \nset forth below (or at such other address as may from time to time be \ndesignated by such Party in accordance with this SECTION 14.10):\n\n               (a)        If to Licensee:\n\n                          ACNielsen eRatings.com 177 Broad Street Stamford, \n                          Connecticut 06901 Telephone:  (203) 961-3320 \n                          Facsimile:  (203) 961-3179 Attention:  General \n                          Counsel\n\n               (b)        If to Licensor:\n\n                          NetRatings, Inc. 830 Hillview Court Milpitas, \n                          California 95035 Telephone:  (408)957-0699  \n                          Facsimile:  (408) 957-0487 Attention:  Jack Lazar, \n                          Chief Financial Officer\n\n                          With copies to:\n\n                          Mark Radcliffe, Esq.\n                          Gray, Cary, Ware &amp; Freidenrich\n                          400 Hamilton Avenue\n                          Palo Alto, CA  94301\n                          Telephone: (650) 328-6561 Facsimile: (650) 327-3699\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\nseventy-two (72) hours after the same has been deposited in a regularly\nmaintained receptacle for the deposit of the United States mail, addressed and\npostage prepaid as aforesaid.\n\n                                      22\n\n\n\n         16.12  RELATIONSHIP OF PARTIES. The Parties to this Agreement are \nindependent contractors. Neither Party has the authority to bind the other or \nto incur any obligation on its behalf.\n\n         16.13  SEVERABILITY. If any part of this Agreement is found invalid \nor unenforceable, that part will be amended to achieve as nearly as possible \nthe same economic effect as the original provision and the remainder of this \nAgreement will remain in full force.\n\n         16.14  WAIVER. No term or provision hereof will be considered waived \nby either party, and no breach excused by either party, unless such waiver or \nconsent is in writing signed by both parties. No consent by either party to, \nor waiver of, a breach by either party, whether express or implied, will \nconstitute a consent to, waiver of, or excuse of any other, different, or \nsubsequent breach by either party.\n\n         16.15  CALENDAR DAYS. The references to \"days\" herein are to be \ncalendar days unless expressly designated as \"business days\".\n\n         IN WITNESS WHEREOF, the Parties have executed this Agreement as of the\ndate first set forth above.\n\n                                     NETRATINGS, INC.\n\n\n\n                                     By:\n                                        -------------------------------------\n\n                                     Title:\n                                           ----------------------------------\n\n                                     Date:\n                                          -----------------------------------\n\n                                    ACNIELSEN ERATINGS.COM\n\n\n\n                                    -----------------------------------------\n\n                                    Title: \n                                           ----------------------------------\n\n                                    Date: \n                                          -----------------------------------\n\n                                      23\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6557,8327],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9616],"class_list":["post-42809","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-acnielsen-corp","corporate_contracts_companies-netratings-inc","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42809","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=42809"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42809"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42809"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42809"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}