Exhibit 10.1
MANAGEMENT SERVICES AGREEMENT
The parties to this agreement are Media Metrix, Inc., a Delaware
corporation ("MMX"), The NPD Group, Inc., a New York corporation ("NPD") and Xxx
Xxxxxxx, an individual with an address at c/o The NPD Group, Inc., 000 Xxxx
Xxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 ("Xxxxxxx").
MMX is in the business of developing, marketing and selling
marketing research services which track and evaluate usage of Internet resources
and computer software and operates a national consumer usage panel (the "Panel")
in order to generate data for market research purposes (the "Business"). NPD has
been providing certain services to MMX pursuant to an Amended and Restated
Management Services Agreement among MMX, NPD and Xxxxxxx, dated as of April 17,
1997 (the "Prior MMX Management Services Agreement"). Xxxxxxx is the Chief
Executive Officer and the controlling shareholder of NPD. The parties desire to
provide for a continuation of certain of the services set forth in the Prior MMX
Management Services Agreement.
It is therefore agreed as follows:
1. Appointment; Services.
1.1 Appointment. MMX hereby retains NPD on behalf of itself
and its subsidiaries, and NPD hereby accepts retention, to provide the services
relating to the Business set forth in this agreement.
1.2 Services. Subject to the terms and conditions of this
agreement, NPD shall continue to provide to MMX and its subsidiaries such
services relating to the Business as NPD performed immediately prior to the date
hereof under the Prior MMX Management Services Agreement. Services under this
agreement shall be provided at such times and in such manner as MMX shall
reasonably request. The services to be provided by NPD shall include:
(i) The support of the operation and administration of the
Panel. Such support includes supporting efforts such as recruiting, operating,
projecting and compensating the Panel, using the methods and procedures
generally in use on the date of this agreement or as modified in the reasonable
judgment of MMX.
(ii) Access to panelists in NPD's panels, including the Home
Testing Institute ("HTI") panel, so long as such access will not adversely
affect other projects using any panelist who is primarily a member of an NPD
panel.
(iii) The data capture and editing of all data reasonably
requested by MMX.
(iv) The data base structuring and storage of all relevant
data.
(v) Processing of reports as reasonably specified by MMX and,
where appropriate, supporting clients for on-line usage.
(vi) Provision of such systems support and development as
shall be mutually agreed between NPD and MMX.
(vii) Provision of such computer time, storage and printing as
shall be reasonably necessary in connection with the services specified in (i)
through (vi) above.
(viii) Support in connection with client service and sales.
(ix) Office space and facilities appropriate to the Business
within NPD leased facilities.
(x) The provision of NPD's Hardware Ownership Survey (if NPD
chooses to collect it).
-2-
In addition to the services specified above, NPD shall provide MMX
with such administrative and office logistical support, including payroll
management, as shall be reasonably necessary in connection with the performance
of such services and the operation of the Business.
1.3 Employees. All NPD employees (other than those, if any,
who become employees of MMX) shall remain under the exclusive direction and
control of NPD.
2. Non-Competition. NPD and Xxxxxxx hereby agree that during the
term of this agreement and for a period of two years thereafter, they shall not
individually nor collectively, directly or indirectly, either as an employee,
employer, consultant, agent, principal, partner, stockholder, corporate officer,
director or in any other individual or representative capacity, engage or
participate in the field of audience measurement for digital online media and
measurement of usage of computer software and personal computers, except for any
investment in a publicly traded company which does not exceed, in the aggregate,
10% of the outstanding capital stock thereof.
3. Term. The term of this agreement commenced on the date hereof and
shall continue until terminated by either party giving the other at least 90
days' prior written notice to such effect; provided, however, NPD may not
terminate this agreement pursuant to this Section 3 until March 31, 2002. Upon
termination of this agreement, NPD shall provide to MMX a copy of all data and
other documentation in its possession which were generated during the
performance of its services pursuant to this agreement relating to, and
necessary or useful to continue, the Business or other businesses developed in
connection with the Business (the "Information") upon reimbursement by MMX to
NPD of its reasonable out of pocket costs for delivering the Information. All
the Information with respect to the operation of the Panel shall be provided on
a non-exclusive basis pursuant to a perpetual, royalty free, non-forfeitable
license from NPD to MMX, subject to
-3-
confidentiality agreements similar in scope and substance to those set forth in
section 6(a); all other Information (including those derived from the operation
of the Panel) shall be the exclusive property of MMX, and NPD shall, to the
extent not previously done, transfer title to such other Information (without
representation or warranty) to MMX pursuant to instruments of transfer
reasonably satisfactory to MMX. MMX shall, at the reasonable request of NPD,
license such Information owned by MMX back to NPD for use in connection with its
businesses pursuant to a non-exclusive, perpetual, royalty-free, non-forfeitable
license, subject to confidentiality agreements similar in scope and substance to
those set forth in section 6(a). Any services provided by NPD to MMX following
the termination of this agreement shall be at NPD's discretion and on such terms
and conditions as shall be agreed to by the parties.
4. Compensation.
4.1 Amount. As compensation for the services provided by NPD,
MMX shall pay to NPD an amount equal to (a) all expenses reasonably incurred by
NPD in the performance of its duties under this agreement, plus, without
duplication, 105% of the sum of (b) a reasonable allocation of the overhead of
NPD as set forth on Exhibit A hereto and (c) the service charges, subject to
adjustment, as set forth in said Exhibit A. Exhibit A hereto also summarizes
NPD's monthly cost allocation system and will be applied to the extent
appropriate in determining expenses under this Section 4.1.
4.2 Billing. NPD shall allocate its expenses and overhead
relating to the performance of its obligations under this agreement in its cost
accounting system as currently in effect, with such changes as may be agreed to
by the parties. NPD shall xxxx MMX monthly in arrears
-4-
for the amounts payable to NPD pursuant to Section 4.1 for that month, and MMX
shall pay such amounts as soon as practical after receipt of such invoice but no
later than 30 days after receipt.
5. Indemnity. (a) MMX shall indemnify and hold harmless NPD and its
directors, officers and employees from and against all loss, liability, damage
or expense (including, without limitation, reasonable fees and expenses of
counsel) NPD or such directors, officers or employees may suffer, sustain or
become subject to as a result of, or otherwise relating to, (i) the performance
of its or their duties under this agreement, unless such loss, liability, damage
or expense shall result from the gross negligence or willful misconduct of NPD
or its directors, officers or employees or the breach of this agreement and (ii)
the operation of the Businesses.
(b) NPD shall indemnify and hold harmless MMX and its subsidiaries
and their respective directors, officers and employees from and against all
loss, liability, damage or expense (including, without limitation, reasonable
fees and expenses of counsel) MMX or such directors, officers or employees may
suffer, sustain or become subject to as a result of, or otherwise relating to,
(i) the gross negligence or willful misconduct of NPD or its directors, officers
or employees in the performance of its or their duties under this agreement or
(ii) the operation of the business of NPD (excluding the services performed
hereunder).
6. Confidentiality. (a) MMX and NPD each agrees that it shall not,
and shall cause its directors, officers, employees and affiliates not to,
directly or indirectly, either during the term of this agreement or thereafter,
disclose to anyone (except at the other's direction), any confidential or secret
aspect of the business or affairs of the other obtained during the term of this
agreement which is not presently in and does not enter the public domain.
-5-
(b) Subject to the provisions of Section 3 of this agreement,
all processes and ideas developed by NPD or its employees in connection with the
services rendered under this agreement shall remain the sole property of NPD.
(c) NPD and MMX each acknowledges that the remedy at law for
breach of its covenants under this Section 6 will be inadequate and,
accordingly, in the event of any breach or threatened breach by NPD or MMX of
the provisions of this Section 6, MMX or NPD, as the case may be, shall be
entitled, in addition to all other remedies, to an injunction restraining any
such breach.
7. Complete Agreement. This agreement contains a complete statement
of all the arrangements between the parties with respect to its subject matter,
supersedes all previous agreements between them relating to its subject matter
and cannot be modified, amended or terminated orally. The Prior MMX Management
Services Agreement is hereby terminated. Nothing herein shall limit the rights
and obligations of the parties under that certain Services Agreement, dated
March 31, 1996, by and between PC Meter L. P. (the predecessor in interest to
MMX) and NPD.
8. Waiver. The failure of a party to insist upon strict adherence to
any term of this agreement on any occasion shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this agreement. Any waiver must be in writing.
9. Invalidity. The invalidity or unenforceability of any term or
provision of this agreement shall not affect the validity or enforceability of
the remaining terms or provisions of this agreement which shall remain in full
force and effect and any such invalid or unenforceable term or provision shall
be given full effect to the extent possible. If any term or provision of this
agreement
-6-
is invalid or unenforceable in one jurisdiction, it shall not affect the
validity or enforceability of that term or provision in any other jurisdiction.
10. Governing Law. This agreement shall be governed by and construed in
accordance with the law of the State of New York applicable to agreements made
and to be performed in New York.
11. Assignability. This agreement shall be binding on and inure to the
benefit of the respective successors and assigns of the parties, provided, that
neither party may assign any of its rights under this agreement (by operation of
law or otherwise) without the prior written consent of the other, other than in
connection with a transfer of the Business, in the case of MMX, or a transfer of
all or substantially all of its business, in the case of NPD, in either case to
an entity that agrees in a writing satisfactory to the other to be bound by the
terms of this agreement.
Dated as of September 30, 1998.
MEDIA METRIX, INC.
By: /s/ Xxx Xxxxxxx
----------------------------------
Name:
Title:
THE NPD GROUP, INC.
By: /s/ Xxx Xxxxxxx
----------------------------------
Name:
Title:
/s/ Xxx Xxxxxxx
--------------------------------------
XXX XXXXXXX
-7-
EXHIBIT A
SUMMARY OF NPD COST ALLOCATION SYSTEM AND SERVICE CHARGES
General
NPD accounting utilizes an expense cost allocation system that is
currently maintained in a Microsoft Excel and Xxxxx Xxxxx Xxxxxxx (SDG)
financial software environment. In the near future, SDG will be replaced by
Xxxxxx financial software. Reports generated from this system reflect (a) direct
expenses captured through the general ledger or "book" and (b) allocated costs.
These latter expenses represent costs originally incurred by either NPD Service
or Corporate Administration departments (cost centers) which are subsequently
allocated to the operating departments based on an actual usage or on an
overhead basis.
NPD Charges on an Actual Usage Basis
Computer Rent Charge from NPD Dept 835 for desktop PCs/Network/Tech.
Support. Average of $500 per month per PC.
Computer Time: Charge from NPD Dept 830 for usage of HP Mainframe
Computer. Based on standard CPU click charge plus disk
storage charge.
Data Capture: Charge from NPD Dept 630 for loading and processing
disks. Based on standard hourly personnel charge -
$20.50 per hour.
Mail Handling: Charge from NPD Dept 770 for mail handling. Based on
standard hourly personnel charge - $24.50 per hour.
Panel Management: Charge from NPD Dept 745 for panel assistance. Based on
standard hourly personnel charge - $50 per hour.
HTI Panel Charge: Charge for use of HTI Panelists. Based on $2.50 per
month for each HTI panel member.
Printing & Postage: Charge from NPD Dept 781 for printing of monthly
reports. Based on standard click charges from Printing
Center.
NSHO/Other Survey: Charge from NPD Dept 465 for assistance from Custom for
fielding surveys. Based on discounted internal Custom
charge out rates.
Applications Support: Charge from NPD Dept. 840 for testing of software. Based
on standard hourly personnel charge.
-8-
NPD Charges on an Overhead Basis
NPD - Rent: Charge from NPD Dept. 130 and Dept. 131 for space at
Port Washington and Uniondale. Such space in Port
Washington is leased by NPD from NPD Realty Company LLC
which is owned by Xxx Xxxxxxx, the 1995 Xxxxxx Xxxxxxx
Trust and the 0000 Xxxxx Xxxxxxx Trust, at rates not
exceeding fair rental value. Based on actual square
footage used and standard sq. footage charge.
NPD - Benefits: Charge from NPD Dept. 110 for personnel related benefits
such as 401(k) plan, vacation pay and standard bonus
accrual. Based on actual headcount or actual
participation.
NPD - Insurance: Charge from NPD Dept. 110 for Life and Health (L&H), and
Property and Casualty Insurance (P&C). L&H based on
actual headcount and actual usage and P&C based on
actual sq. footage and actual usage.
NPD - Finance: Charge from NPD Dept. 121 for Xxx Xxxxx and accounting
dept. services (A/R, A/P Processing etc). Based on $200
per hour for Xxx Xxxxx and fixed agreed charge for other
services.
NPD - HR: Charge from NPD Depts. 122/123 for provision of Human
Resource and Personnel services. Based on actual
headcount.
NPD - Mgment: Charge from Dept. 110 for Xxx Xxxxxxx. Based on $400 per
hour.
NPD reserves the right to implement reasonable fee increases upon no less
than 90 days advance notice to Media Metrix consistent with NPD's internal
policies.
-9-
