Exhibit 10.3
LICENSE AGREEMENT
Agreement dated as of November 5, 1998 between The NPD Group, Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ("Licensor" or "NPD") and
Media Metrix, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
("Licensee").
1. GRANT OF LICENSE:
(a) Licensor hereby grants to Licensee, on the terms and conditions
hereinafter set forth, an exclusive, non-transferable worldwide license (the
"Territory") to use the NPD PowerView(R) computer software and standard set ups
("NPD PowerView(R)"), Flexsys(TM) ("Flexsys(TM)") and NPD SofTrends(TM)
dictionary ("NPD SofTrends(TM)") solely in connection with the operation of the
Media Metrix New Media Measurement Service. NPD PowerView, Flexsys and NPD
SofTrends (as well as any updates thereof furnished by Licensor pursuant to this
Agreement) are hereinafter collectively referred to as the "Licensed Programs."
In connection with such grant, the Licensee shall be entitled:
(i) to use and, to the extent explicitly set forth in this
Agreement, to sublicense, the NPD PowerView, Flexsys and NPD SofTrends and to
use, exclusively for its own internal purposes the software tools identified in
Schedule A hereto.
(ii) to use the marks NPD PowerView, Flexsys and NPD SofTrends
and such other marks which Licensor may specify for use in connection with the
Licensed Programs (the "Marks"), subject to their availability in the Territory;
and
(iii) to use such know-how related to the Licensed Programs as
may be required to operate the Media Metrix New Media Measurement Service.
(b) For the purpose of this Agreement, the "Media Metrix New Media
Measurement Service" means a market research and information service or services
which track and evaluate usage of Internet resources and computer software.
(c) For purposes of this Agreement, "Licensed Programs" as defined
in Section 1(a), shall be in machine readable binary image format, and includes
related material, whether in machine readable, printed or other form, including
but not limited to instructional and operations manuals. The term Licensed
Programs includes all or any portion of a Licensed Programs incorporated in
another program, whether in machine readable, printed or other form.
Notwithstanding the foregoing, the term Licensed Programs does not include
source code in any form.
(d) For purposes of this Agreement, with respect to a Licensed
Program "Use" means (i) transferring any portion of any Licensed Programs from
storage units or media into equipment for processing, whether by electronic,
mechanical or other means; (ii) utilizing any portion of any of the Licensed
Programs in the course of the operation of any equipment or in support of the
use of any equipment or program; or (iii) merging any Licensed Programs in
machine readable form into another program. "Use" also means referring to any
instructional or operational manual included in the definition of the Licensed
Programs for the purpose of understanding or operating the Licensed Programs.
(e) For purposes of this Agreement, the License is restricted to the
specific corporation designated as "Licensee" at the outset of this Agreement.
Licensee does not include any affiliate of Licensee other than its subsidiaries.
(f) For the purposes of this Agreement, "Update" means any generally
released corrections, enhancements or minor improvements to the Licensed
Programs.
2. CONDITIONS OF LICENSE:
(a) The license granted hereunder shall expire or terminate upon the
expiration or termination of this Agreement.
(b) NPD PowerView may be copied only for back-up and archive
purposes and for the Use of Licensee's clients in the Territory in conjunction
with the Media Metrix New Media Measurement Service. The other Licensed Programs
may be copied by Licensor in machine readable form to the extent required in
connection with the operation of the Media Metrix New Media Measurement Service
in the Territory. Licensed Programs provided in machine readable form may not be
copied into any media for any other purpose. Licensee may not copy any portion
of a Licensed Programs provided in printed form, including but not limited to
instructional or operational manuals.
(c) The parties hereby acknowledge that this Agreement establishes a
relationship of confidentiality between them, and Licensee acknowledges that the
Licensed Programs are furnished by Licensor on a confidential basis. Unless
otherwise agreed to in writing by Licensor, Licensee shall limit access to the
Licensed Programs to its employees who require such access to operate the Media
Metrix New Media Measurement Service only. Such access shall be solely for the
purpose of enabling Licensee to use the Licensed Programs for its own internal
purposes or to operate the Media Metrix New Media Measurement Service.
(d) Under no circumstances shall the Licensee transfer, assign or
sublicense any rights or obligations under this Agreement.
(e) Under no circumstances shall Licensee be deemed the owner of any
copy of the Licensed Programs within the meaning of Section 117 of Title 17 of
the United States Code.
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Within thirty (30) days after Licensee has permanently discontinued the use of
any part of the Licensed Programs or immediately upon the termination or
expiration of the License, Licensee shall return to Licensor the original and
all copies (whether whole or partial) of the Licensed Programs in any form and
shall certify in writing to Licensor that it has done so.
(f) Notwithstanding any provision herein to the contrary, the
Licensor acknowledges that an essential element of the Media Metrix New Media
Measurement Service involves the use by clients of copies of NPD PowerView, and
the use and sublicense by regional licensees of the Media Metrix New Media
Measurement Service, of the Licensed Programs. Accordingly, the Licensee shall
be entitled to sublicense the Licensed Programs only to regional sublicensees in
connection with the operation of the Media Metrix New Media Measurement Service;
provided that such sublicensees enter into license agreements substantially in
the form hereof restricting the use of the Licensed Programs to the same extent
that Licensee is restricted hereby and provided further than such sublicensees
are bound by confidentiality agreements relating to their use of the Licensed
Programs. A "regional licensee" shall mean an entity that has entered into an
agreement with the Licensee to license the Media Metrix New Media Measurement
Service within a defined territory.
(g) The Licensee acknowledges that, in addition to the Licensed
Programs, the Licensee will require and obtain, at the Licensee's expense,
additional market research data handling utilities. The Licensed Programs
include certain data handling utilities, but these only operate on a
Hewlett-Packard mainframe.
3. LICENSING FEES:
(a) The Licensee will pay the Licensor for the license of the
Licensed Programs, the fees set forth on Schedule B hereto, which will be paid
on a quarterly basis (the "License Fees"). The Licensor reserves the right to
implement reasonable fee increases upon no less than 90 days' advance written
notice to the Licensee consistent with the Licensor's internal policies.
(b) The Licensee will be charged by Licensor for time and support of
Licensor's personnel, at the Licensor's standard billing rates plus
out-of-pocket expenses, for services requested by the Licensee (the "Services").
(c) Any applicable sales, use, personal property, excise or other
taxes (other than income or corporate franchise taxes) will be added to the
License Fees listed on Schedule B and shall be payable by the Licensee at such
times and in such manner as required by law.
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4. TERMS OF PAYMENT:
(a) The License Fees will be paid for each quarter not later than
the 15th day of the first month following the end of the quarter. For the
purposes of this sub-section, "quarter" means each calendar quarter, except that
for the period commencing on the date of this Agreement and ending on the day
prior to the first day of the following full calendar quarter will be treated as
the first quarter of the term.
(b) The Licensor will invoice the Licensee for Services on a monthly
basis. Payment is due within thirty (30) days of the date of invoice.
(c) Interest will be charged on overdue amounts at a monthly rate of
one and one-half percent (1 1/2%) or at the maximum legal rate, whichever is
less.
5. INSTALLATION:
(a) It is the Licensee's responsibility, without charge to Licensor,
to provide and prepare any workstation(s) upon which any software is to be
installed under this Agreement in accordance with specifications supplied by the
Licensor.
(b) Unless otherwise specified in Schedule D hereto, it shall be the
responsibility of the Licensee to install the Licensed Programs at its own
expense.
6. PROPRIETARY RIGHTS:
(a) Title to the Licensed Programs shall at all times remain
exclusively with Licensor. Licensee acknowledges that Licensed Programs and the
original and any copies thereof, in whole or in part, and all copyright, patent,
trade secret, trademark and other intellectual property and proprietary rights
which now or hereafter may exist therein or in anyway related to the operation
of the NPD PowerView, Flexsys and NPD SofTrends, are owned by and shall remain
the exclusive valuable property of Licensor, and embody substantial creative
efforts, ideas and expressions. Under no circumstances shall Licensee attempt,
or permit others to attempt, to decompile, disassemble or otherwise reverse
engineer the Licensed Programs.
(b) The Licensee shall include, and shall not alter or remove, any
applicable copyright, patent, trade secret, trademark or other proprietary
notices on all copies (in whatever form) of the Licensed Programs and the
packaging in which they may be contained.
(c) The Licensee shall take all reasonable steps to safeguard the
Licensed Programs to assure that no unauthorized persons have access to them and
that no person authorized to have access to any part of it takes any action with
respect thereto which is herein prohibited. For the purposes of this Agreement,
the only persons authorized to have access to the Licensed Programs
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are those of Licensee's officers, directors and employees who have a need for
such access to operate the Media Metrix New Media Measurement Service and those
clients of the Licensee which enter into sublicenses with the Licensee. The
Licensee shall promptly report to the Licensor the taking of any prohibited
action with respect to any part of the Licensed Programs of which the Licensee
becomes aware and shall take such further steps as may reasonably be requested
by the Licensor to prevent such action.
(d) To the extent that the Licensee develops improvements or
enhancements to the Licensed Programs (the "Licensee Enhancements"), it agrees
to provide to NPD a perpetual, unrestricted royalty free license under the
Licensee Enhancements. The Licensee shall promptly notify the Licensor and
provide copies thereof to the Licensor in machine readable binary image format
and shall deliver to the Licensor the source code underlying the Licensee
Enhancements.
7. EXCLUSIVE WARRANTY AND REMEDY:
(a) The Licensor warrants that Licensed Programs (excluding, for
purposes of this subparagraph, any Updates furnished pursuant to this Agreement)
will upon delivery substantially conform to the description thereof set forth in
the pertinent user manuals. The Licensee, however, acknowledges that Licensed
Programs are of such complexity that they may contain inherent defects and the
mere existence thereof shall not constitute a breach of this warranty.
(b) As the sole and exclusive remedy for breach of the warranty
contained in the preceding subparagraph, the Licensor will provide the support
services set forth in paragraph 11 hereof.
(c) The Licensor's exclusive warranty and the remedy provided for
breach thereof shall not apply to damage or deficiencies resulting from
accident, alteration, modification, foreign attachments, misuse, tampering,
negligence, improper maintenance, abuse or failure to implement any Updates
furnished pursuant to this Agreement.
(d) The Licensor reserves the right to make substitutions and
modifications in the specification of the Licensed Programs.
8. DISCLAIMER OF ALL OTHER WARRANTIES:
EXCEPT FOR THE EXPRESS WARRANTY STATED IN PARAGRAPH 7 ABOVE,
LICENSOR GRANTS NO WARRANTIES WITH RESPECT TO THE LICENSED PROGRAMS, EITHER
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. THE STATED EXPRESS WARRANTY, AND THE REMEDY
PROVIDED FOR BREACH THEREOF, ARE IN LIEU OF ALL OTHER LIABILITIES OR OBLIGATIONS
OF THE LICENSOR (WHETHER SUCH LIABILITIES OR OBLIGATIONS WOULD ARISE UNDER THIS
AGREEMENT OR
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OTHERWISE BY OPERATION OF LAW) FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH THE DELIVERY, INSTALLATION, USE OR PERFORMANCE OF THE LICENSED
PROGRAMS.
9. LIMITATION OF LIABILITY:
(a) IN NO EVENT SHALL LICENSOR BE LIABLE UNDER ANY LEGAL THEORY
(INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT
LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF
LICENSOR HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL
APPLY NOTWITHSTANDING ANY DETERMINATION THAT THE EXCLUSIVE REMEDY REFERRED TO IN
SUBPARAGRAPH 7(B) ABOVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) Without limiting the effect of the preceding subparagraph,
Licensor's maximum liability, if any, for damages (including but not limited to
liability arising out of contract, negligence, misrepresentation, strict
liability in tort or warranty of any kind) shall not exceed the allocable
portion of the License Fees paid by the Licensee during the preceding twelve
(12) months. This subparagraph (b) shall not apply to Licensor's obligations
under paragraph 10 of this Agreement.
(c) The Licensor shall under no circumstances be liable to the
Licensee for damages arising out of any claim (including, but not limited to, a
claim for personal injury or property damage) made against the Licensee by any
other person or party.
(d) The Licensee shall, at its cost and expense, defend, indemnify
and hold Licensor harmless from and against any claim (including, but not
limited to, a claim for personal injury or property damage) by any other person
or party arising out of or in connection with the use of the Licensed Programs
to perform the Licensee's applications, regardless of whether such claim is
founded in contract, tort or warranty.
10. INTELLECTUAL PROPERTY:
(a) The Licensor will defend and indemnify the Licensee against any
claim that the use of the Licensed Programs delivered hereunder, constitute an
infringement of a currently effective United States patent, copyright or other
intellectual property right. The Licensor's obligations hereunder will only
apply if the Licensee notifies the Licensor promptly in writing as to any such
claim; gives the Licensor the right to control and direct the investigation,
preparation, defense, trial and settlement of each such claim; and provides the
Licensor with information deemed necessary by the Licensor or its counsel in
connection with the foregoing. The Licensee agrees to cooperate fully with the
Licensor in the defense and/or settlement of each such claim. If the Licensor
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receives notice of an alleged infringement or if the use of Licensed Programs is
prevented based on an alleged infringement, the Licensor will have the right, at
its option, to obtain for the Licensee the right to the use of such Licensed
Program; substitute other comparable software; or replace or modify the
operation of such Licensed Program or its design so that it is no longer
infringing. If, in the Licensor's opinion, none of the foregoing alternatives is
reasonably available to the Licensor, then the Licensor may terminate this
Agreement and/or and discharge the Licensee from its obligations to pay any
further licensing fees under this Agreement for such Licensed Programs. In no
event shall the Licensor's liability under this paragraph (excluding the
Licensor's outside counsel fees and internal costs) exceed the allocable License
Fees paid by the Licensee to the Licensor under this Agreement. The foregoing
states the entire liability of the Licensor with respect to infringement of any
patents, copyrights or other intellectual property rights by the operation of
the Licensed Programs.
(b) The Licensor's obligation contained in the preceding
subparagraph does not extend to any suit or proceeding which is based upon a
patent claim covering a combination of which the operation of any Licensed
Programs licensed under this Agreement is merely an element of the claim
combined with other devices or elements not acquired hereunder unless Licensor
is a contributory infringer, nor does it extend to use of any operation of any
of the Licensed Programs in a manner for which the same was not designed.
(c) Ownership of Marks.
(i) The Licensee acknowledges the ownership of the Marks in
the Licensor, agrees that it will do nothing inconsistent with such ownership
and that all use of the Marks by the Licensee shall inure to the benefit and be
on behalf of the Licensor, and agrees to assist the Licensor in recording this
License with appropriate government authorities. The Licensee agrees that
nothing in this License shall give the Licensee any right, title or interest in
the Marks other than the right to use the Marks in accordance with this License
and the Licensee agrees that it will not attack the title of the Licensor to the
Marks or attack the validity of this License.
(ii) The Licensee will comply with all laws, rules,
regulations and requirements of any governmental body which may be applicable to
the delivery, sale or promotion of the Licensed Programs.
(iii) The Licensee acknowledges that only the Licensor may
file and prosecute a trademark application or applications to register the
Marks. Licensee agrees to cooperate with the Licensor when requested for
purposes of filing applications to register the Marks.
(iv) The Licensee agrees and undertakes to use the Marks
strictly in compliance with and observance of any and all trademark laws and to
use markings in connection therewith solely as may reasonably be required by the
Licensor. The Licensor shall be solely
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responsible for bearing all expenses reasonably incurred in preparing and
recording any and all such documents.
(v) The Licensee agrees not (1) to challenge the validity or
ownership of the Marks or any application for registration thereof, or any
trademark registrations thereof in any jurisdiction, or (2) to contest the fact
that the Licensee's rights under this Agreement terminate upon termination of
this Agreement. The provisions of this subsection shall survive any termination
or expiration of this Agreement.
(vi) The Licensee shall not at any time use, promote,
advertise, display or otherwise commercialize the Marks or any material
utilizing or reproducing the Marks in a manner that will adversely affect the
Marks or any rights or ownership of the Licensor therein.
(d) Quality Standards. The Licensee agrees that the nature and
quality of: all services rendered by the Licensee in connection with the Marks;
all goods sold by the Licensee under the Marks; and all related advertising,
promotional and other related uses of the Marks by the Licensee shall conform to
standards set by and be under the control of the Licensor.
(e) Quality Maintenance. The Licensee agrees to cooperate with the
Licensor in facilitating the control of such nature and quality by the Licensor,
to permit reasonable inspection of its operation by the Licensor. The Licensee
agrees to supply the Licensor with all specimens of any use by facsimile
transmission within seventy-two (72) hours prior to public release. If the
Licensor takes no action within twenty-four (24) hours of fax receipt, the
proposal shall be deemed acceptable and accepted. The Licensee shall comply with
all applicable laws and regulations and obtain all appropriate government
approvals pertaining to the sale, distribution and advertising of goods and
services covered by this License.
(f) Form of Use; Advertising and Graphic Standards. The Licensee
agrees to use the Marks only in the form and manner and with appropriate legends
as prescribed from time to time by the Licensor, and not to use any other
trademark or service ▇▇▇▇ in combination with any of the Marks without prior
written approval of the Licensor.
(g) Infringement. The Licensee shall promptly notify the Licensor of
any infringements or unauthorized use of the Marks or other intellectual
property used in connection with Licensed Programs by third parties, or any act
of unfair competition by third parties relating to the Licensed Programs,
whenever such infringement, use or act shall come to the Licensee's attention.
After receipt of such notice from the Licensee, the Licensor may in its sole
discretion take such action to stop such infringement or act as is reasonably
necessary to protect the ▇▇▇▇ or other intellectual property in connection with
the Licensed Programs within the Territory. In connection therewith, the
Licensee shall fully cooperate with the Licensor to stop such infringement or
act and, if so requested by the Licensor, shall join with the Licensor as a
party to any action brought by the Licensor for such purpose. The Licensor shall
bear all expenses in connection with the foregoing.
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Any recovery as a result of such action shall belong solely to the Licensor,
except to the extent that such recovery represents damage specifically allocable
to the Licensee in which event such specified recovery, net of all expenses,
including all of the Licensor's counsel fees and other litigation expenses,
shall be paid to the Licensee. The Licensee agrees that the Licensor shall have
the sole power to take legal action or other action before any court or
governmental authority with respect to infringement of or the protection of the
Marks or other intellectual property.
11. SUPPORT SERVICES:
(a) The Licensor will, at such intervals as Licensor deems
appropriate, distribute Updates to the Licensee. Updates will consist of such
corrections, modifications and minor improvements of the Licensed Programs or
portions thereof, in machine readable binary image format, as the Licensor deems
appropriate and which the Licensor distributes generally to its other licensees.
The Licensee shall, upon receipt of any Update, implement its use such that it
replaces entirely any previous version of the Licensed Programs or portion
thereof to which the Update applies. Upon implementation, an Update shall
constitute a Licensed Program and shall be subject to all the terms and
conditions of this Agreement. If the Licensee fails to implement the use of any
Update, the Licensor will be under no obligation to furnish any further support
services under this Agreement, and if the Licensor chooses to honor the
Licensee's request for such services, any and all costs incurred to correct
errors in any previous version of the Licensed Programs will be borne by the
Licensee.
(b) The Licensor will use commercially reasonable efforts to correct
any error in the Licensed Programs identified by the Licensee in writing. An
error will be deemed to exist if, and only if, the Licensed Programs
substantially deviates from the description thereof in the pertinent user manual
or help files. The Licensee, however, acknowledges that the Licensed Programs
are of such complexity that it may be impossible or impracticable to effectuate
the correction of an error. If an error is, in the opinion of the Licensor, not
reasonably capable of correction, the Licensor will use its reasonable efforts
to advise the Licensee on methods of avoiding or overcoming the error. The
Licensor does not guarantee the results of any services provided under this
subparagraph or that all or any errors will be corrected, overcome or avoided.
12. EXCLUSIONS:
(a) The Licensor's obligation to provide support services hereunder
is conditioned upon the proper use of the Licensed Programs and does not cover
the Licensed Programs that have been (i) modified without the Licensor's
approval, (ii) used contrary to the Licensor's instructions or (iii) serviced by
anyone other than the Licensor. The Licensor will not be obligated to furnish
service hereunder if the need for such service arises from hardware malfunction,
user error, conditions correctable by reference to available documentation or
malfunction of programs not furnished by the Licensor.
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(b) If service is requested by the Licensee and furnished by the
Licensor as a result of any of the causes specified in the preceding
subparagraph, the Licensee will be obligated to pay for such service at the
Licensor's standard rates then in effect for time, travel, expenses and
materials.
13. TERM:
(a) The term of this Agreement shall commence upon the signing of
this Agreement; provided, however, that the Licensee shall have the right to
terminate this Agreement upon ninety (90) days prior written notice to the
Licensor.
(b) The Licensor may terminate the License at any time by written
notice to the Licensee upon the occurrence of any of the following:
(i) the Licensee fails to pay any amount required to be paid
by the Licensee pursuant to this Agreement within thirty
(30) days after written notice of such failure has been
given by the Licensor to the Licensee; or
(ii) any representation, warranty, certification or statement
made by the Licensee under or in connection with this
Agreement shall have been incorrect in any material
respect when made; or
(iii) the Licensee shall fail to perform or observe any term,
covenant, or agreement contained in this Agreement and
such failure, if capable of being remedied, shall remain
unremedied for thirty (30) days after written notice
thereof shall have been given to the Licensee by the
Licensor; or
(iv) the Licensee shall generally not be paying its debts as
such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the
Licensee seeking to adjudicate it a bankrupt or
insolvent, or seeking dissolution, liquidation, winding
up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee,
custodian or other similar official for the Licensee or
for any substantial part of its property, which
proceeding, if commenced by a person other than the
Licensee, remains unstayed or undismissed for a period
of thirty (30) days or
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more; or the Licensee shall take any action to authorize
or effect any of the actions set forth above in this
subsection; or
(v) the performance by the Licensee of any of its
obligations under this Agreement shall become unlawful;
or
(vi) any change in law, or any interpretation or directive
(whether or not having the force of law) by any
governmental authority or other regulatory body charged
with the interpretation or administration thereof which
materially adversely affects the condition or
operations, financial or otherwise, of the Licensee and
which materially impairs the Licensee's ability to
perform its obligations under this Agreement or to meet
its obligations generally shall have occurred.
(c) Upon termination of the License in accordance with this
paragraph 14 or otherwise, the Licensee shall promptly destroy (or cause to be
destroyed) all copies of the Licensed Programs (and any Upgrades thereto) and
other materials delivered to it in connection with the Licensed Programs in its
possession (or in the possession of any of employees, clients, agents,
affiliates or associates or any other party to whom the Licensee supplied copies
of the Licensed Programs or such other materials in accordance with this
Agreement) and shall deliver a certificate to the Licensor as to such
destruction. Contemporaneously with such destruction, the Licensee shall cause
to be removed from all computers or processors on which any of the Licensed
Programs has theretofore been loaded in accordance with this Agreement any
"software key" which permits the Licensed Programs to be operated; all such
software keys shall be delivered by the Licensee to the Licensor as soon as
practicable following the termination of this Agreement.
(d) Effect of Expiration or Termination. Upon the expiration or
termination of this Agreement for any reason, neither the Licensee not its
receivers, representatives, agents, successors or assigns shall have any right
to exploit or in any way use the Marks. Upon such expiration or termination of
this Agreement, the Licensee shall forthwith discontinue operation of the
Licensed Programs and all use of the Marks and any variation or simulation
thereof, or any ▇▇▇▇ confusingly similar therewith, and the Licensee hereby
irrevocably releases and disclaims any right or interest in or to the Marks.
(e) Payment Obligation. The Licensee's obligations of
confidentiality and to pay the Licensor amounts due hereunder accrued prior to
the date of termination shall survive any expiration or termination of this
Agreement.
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14. GENERAL:
(a) This Agreement will not be binding upon the Licensor until
signed by Licensee and accepted in writing by an authorized officer of the
Licensor.
(b) The Licensee may not assign this Agreement without the prior
written consent of the Licensor.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(d) No failure or delay on the part of either party in exercising
any right or remedy provided in this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise of or failure to exercise any
such right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy under this Agreement.
(e) Any notice required or permitted under this Agreement shall be
in writing and shall be sent to the appropriate address shown on the first page
hereof (unless notice of a changed address has been given) by telecopier,
telegram, private overnight courier service or registered or certified airmail,
return receipt requested, with postage prepaid.
(f) The Licensor's performance hereunder is subject to force
majeure, including but not limited to wars, riots, failure of contractors and
subcontractors to perform, strikes, labor disturbances, acts of God, fires,
floods, explosions, civil disturbances, inability to obtain required material or
transportation, and acts of governmental authorities.
(g) The Licensee hereby acknowledges that the Licensed Programs may
be subject to United States government export control restrictions. The Licensee
agrees not to locate, relocate or export the Licensed Programs outside the
Territory without the express written permission of the Licensor.
(h) Paragraph headings herein are for convenience only and do not
control or affect the meaning or interpretation of any terms or provisions of
this Agreement.
(i) This Agreement (including any schedule hereto) supersedes all
prior agreements and understandings between the parties, whether written or
oral, related to the subject matter and is intended by the parties as the
complete and exclusive statement of the terms of their Agreement.
(j) No modification, addition to, or waiver of any of the terms of
this Agreement (including any schedule hereto) shall be effective unless in
writing and signed by an authorized
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officer of the Licensor. If any of the provisions of this Agreement are invalid
under any applicable statute or rule of law, they are, to that extent, deemed
omitted.
(k) No action to enforce any claim arising out of or in connection
with the transaction which is the subject matter of this Agreement shall be
brought by the Licensee against the Licensor more than one (1) year after the
cause of action has accrued.
(l) The Licensor may, in its discretion, delegate all or any portion
of its obligation to perform services hereunder to an agent or subcontractor. In
the event the Licensor does so, references to the Licensor in this Agreement
shall be deemed to refer, in the alternative, to such agent or subcontractor.
(m) Nothing herein contained shall be construed to constitute the
parties hereto as partners or as joint venturers, or either as agent of the
other.
Accepted by: Agreed:
THE NPD GROUP, INC. MEDIA METRIX, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
President Chief Executive Officer
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SCHEDULE A
SOFTWARE TOOLS
PWSETUP - Setup - Setup PV DB
Convert - Convert PV DB
UI - User Interface
Execute - Execute a PV DB
Viewer - Views a PV Table
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SCHEDULE B
License Fees shall be $10,000 per month in the aggregate for NPD PowerView and
Flexsys, and $1,000 per month for NPD SofTrends.
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