Exhibit 10.7
FIRST AMENDMENT TO THE SERVICES AGREEMENT
Whereas The NPD Group, Inc., a New York corporation ("NPD"), and
Media Metrix, Inc., a Delaware corporation ("MMX"), executed a Services
Agreement dated September 30, 1998 (the "SERVICES AGREEMENT");
Whereas, Jupiter Media Metrix, Inc., a Delaware corporation ("JMXI"),
is the successor-in-interest to MMX;
Whereas, NetRatings, Inc., a Delaware corporation ("NETRATINGS," and
with JMXI and NPD, the "PARTIES") as of the date hereof is entering into a
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"); 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:
-----------------------------------
(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 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, and in
advance, pro-rated on a monthly basis for each month preceding January 1, 2003.
Such limited right to exploit the Patent may be terminated at the sole option of
NPD upon 120 days advance written notice by NPD to NetRatings prior to December
31 of each year.
3. NO FURTHER AMENDMENT. Notwithstanding any other term or 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 Services
Agreement shall remain in full force and effect as written.
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 Xxxxxxx By: /s/ Xxxx Xxxxxxxx
Name: Xxx Xxxxxxx Name: Xxxx Xxxxxxxx
Title: Chairman and Chief Executive Officer Title: Chief Financial Officer
NETRATINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
