Exhibit 10.2
SERVICES AGREEMENT
The parties to this agreement are Media Metrix, Inc, a Delaware
corporation (the "Company"), and The NPD Group, Inc., a New York corporation
("NPD").
The Company 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"). The
Company owns certain computer software (the "Software") used to effect such
measurement. The Company has been providing NPD with a royalty-free license to
certain computer software relating to the Business and access to all databases
generated by the Business pursuant to a Services Agreement between PC Meter
L.P., the Company's predecessor, and NPD dated as of March 31, 1996 (the "Prior
Services Agreement"). The parties desire to provide for a continuation of the
services set forth in the Prior Services Agreement.
It is therefore agreed as follows:
1. Services; License.
1.1 Services. Subject to the terms and conditions of this agreement,
the Company shall provide to NPD and its affiliated companies access to its data
bases, at such times and in such manner as NPD may reasonably request, for any
business purpose of NPD; provided that such data bases may not be used by NPD or
its affiliated companies in direct competition with the Business.
1.2 Grant of License; Scope. The Company hereby grants to NPD and
its affiliated companies a perpetual, non-forfeitable, worldwide license (the
"License") to use the Software in the operation of its businesses. The License
shall include the right to make revisions, modifications and improvements to the
Software; without limitation, NPD may modify the Software as necessary or
desirable to permit the Software to be used on hardware and operating systems
different than those used by the Company. Any such revisions, modifications and
improvements shall be the property of the Company.
1.3 Exclusivity. The License shall be non-exclusive and the Company
shall retain the right to use, and to license the use of, the Software (and any
modifications, revisions and improvements to the Software) for all purposes;
provided that the Company shall not license or otherwise transfer the Software
to any third party or use the Software or any modification, revision or
improvement of the Software for uses in direct competition with the businesses
of NPD and in connection with any license or transfer to a third party shall
obtain a written undertaking from such third party not to use the Software (or
such modifications, revisions and improvements) in direct competition with such
businesses.
1.4 Modifications. If the Company shall modify the Software during
the term of this agreement, it shall make such modifications available to NPD
upon the terms and subject to the conditions set forth in this agreement as if
such modifications were part of the Software licensed under this agreement.
2. Term. The term of this agreement shall commence on the date of this
agreement and shall continue until terminated by (i) either party giving the
other at least 120 days' prior written notice or (ii) the mutual consent of the
parties hereto. No termination of this agreement shall affect the right of any
client of NPD or its affiliated companies to use the Software for the balance of
any unfulfilled contractual commitment of NPD or such affiliate to such client.
3. Compensation.
3.1 Amount. As compensation for the services provided by the
Company, NPD shall pay to the Company a monthly fee of $2,500 plus the
reasonable out of pocket expenses incurred by the Company in providing services
to NPD hereunder. The Company reserves the right to implement reasonable fee
increases upon no less than 90 days' advance written notice to NPD. The
percentage increases in any calendar year shall not exceed the increase over the
prior year in the
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Consumer Price Index for the New York Metropolitan Area -- All Items, as
reported by the U.S. Department of Labor.
3.2 Billing. The Company shall xxxx NPD monthly in arrears for the
amounts payable to the Company pursuant to section 3.1 for that month, and NPD
shall pay such amounts as soon as practical after receipt of such invoice but no
later than 30 days after receipt.
4. Title; Confidentiality.
4.1 Title. The Company shall deliver to NPD complete sets of object
and source code for the Software and any revisions, modifications or
improvements to the Software and complete sets of such documentation as may at
any time be available for the Software or such revisions, modifications or
improvements. In the event of destruction of the NPD's copy of any source code
or documentation, the Company shall, at NPD's expense, use its best efforts to
deliver a replacement copy of such destroyed source code or documentation. NPD
may make such copies of the Software or such revisions, modifications and
improvements as may be appropriate to enable NPD to exercise its rights under
this agreement. Title to the Software, source code and documentation, shall at
all times be vested in the Company, notwithstanding any delivery to NPD.
5. Indemnity.
(a) The Company shall indemnify and hold harmless NPD and its
directors, officers, affiliates 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, affiliates 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, affiliates or employees or
the breach of this agreement and (ii) the operation of the Business.
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(b) NPD shall indemnify and hold harmless the Company and its
partners, officers and employees from and against all loss, liability, damage or
expense (including, without limitation, reasonable fees and expenses of counsel)
the Company or such partners, 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, affiliates
or employees in the performance of its or their duties under this agreement or
(ii) the operation of the businesses of NPD.
6. Confidentiality.
(a) The Company and NPD each agrees that it shall not, and shall
cause its directors, partners, 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.
(b) All processes and ideas developed by the Company or its
employees in connection with the services rendered under this agreement shall
remain the sole property of Company.
(c) NPD and the Company 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 the
Company of the provisions of this section 6, the Company 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.
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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 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 the Company, or
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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
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Name: Xxx Xxxxxxx
Title: Chairman
THE NPD GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: President
