EXHIBIT 10.33
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 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.
(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.
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 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: Xxx Xxxxxxx
Title: Chairman
THE NPD GROUP, INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: President
FIRST AMENDMENT TO THE SERVICES AGREEMENT
Whereas The NPD Group, Inc., a New York corporation ("NPD"), and Media
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Metrix, Inc., a Delaware corporation ("MMX"), executed a Services Agreement
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dated September 30, 1998 (the "Services Agreement");
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Whereas, Jupiter Media Metrix, Inc., a Delaware corporation ("JMXI"),
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is the successor-in-interest to MMX;
Whereas, NetRatings, Inc., a Delaware corporation ("NetRatings,"
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and with JMXI and NPD, the "Parties") as of the date hereof is entering into a
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settlement agreement under which it shall settle Civil Action No. 01-CV-193
filed by JMXI in the United States District Court for the District of Delaware,
and, as a term thereof, NTRT is acquiring all rights and interests in U.S.
Patent No. 6,115,680 entitled "Computer Use Meter and Analyzer" (the "Patent");
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and
Whereas, the Parties wish to clarify the interpretation of the terms of
the Services Agreement.
NOW, THEREFORE, in return for good and valuable consideration, the
sufficiency of which is acknowledged by all the Parties, the Parties agree as
follows:
1. Amendment of the Services Agreement:
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(a) The second sentence of the preamble of the Services
Agreement is amended and restated in its entirety to read, "The Company is in
the business of developing, marketing and selling internet audience measurement
services and operates a national consumer usage panel (the "Panel") in order to
generate data for measuring internet audiences and assessing internet audience
behavior (the "Business")."
(b) The first sentence of Section 1.2 of the Services
Agreement is amended and restated in its entirety to read, "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; provided, however, that such Software may not be used by NPD or its
affiliated companies in furtherance of, or for, any purpose which is the same
as, or substantially similar to, the Business."
2. Estoppel from Enforcement of the Patent. So long as the
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Services Agreement is in full force and effect and no assignment or transfer of
the rights of either NPD or JMXI under the terms of the Services Agreement
occurs, NetRatings hereby agrees that it shall not seek to enforce its rights
under the Patent against NPD to the extent that the Patent may otherwise limit
or impair the usage of the "data bases" (as such term is used in Section 1.2 of
the Services Agreement) or the Software (as such term is defined in the preamble
of the Services Agreement). Effective, and contingent, upon the termination of
the Services Agreement, NetRatings hereby agrees to grant NPD and its affiliated
companies a non-exclusive, worldwide, non-sublicensable, irrevocable,
non-transferable, limited right to exploit the Patent in any manner other than
in furtherance of, or for, any purpose which is the same as, or substantially
similar to, the Business
subject to the payment of an annual royalty fee of $30,000 per annum, paid in
advance on January 1 of each calendar year.
3. No Further Amendment. Notwithstanding any other term or
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provision of the Services Agreement, JMXI and NPD each agree not to (a) either
further amend the Services Agreement or (b) waive either party's rights or
obligations under the Services Agreement, without first obtaining the consent of
NetRatings. Nothing in this section 3 shall be construed so as to prevent either
JMXI or NPD from terminating the Services Agreement in accordance with Section 2
of the Services Agreement.
4. Full Force. Except as expressly set forth above, the
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Services Agreement shall remain in full force and effect as written.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
First Amendment to the Services Agreement as of this 7th day of May, 2002.
THE NPD GROUP, INC. JUPITER MEDIA METRIX, INC.
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
Name: Xxx Xxxxxxx Name: Xxxxxx Xxxxxx
Title: Chairman Title: President and Chief Executive Officer
NETRATINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
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