Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit 10.13
-------------
SALES AND MARKETING AGREEMENT
This Agreement is made and entered into effective as of September 5, 1995,
("Effective Date") by and between Internet Profiles Corporation, a California
corporation ("I/PRO"), with its principal place of business at 000 Xxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, and the Xxxxxxx Media Research
division ("Nielsen") of X.X. Xxxxxxx Company, a Delaware corporation, with
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (collectively I/PRO
and Nielsen are referred to as the "Parties" and individually as a "Party").
A. I/PRO has developed and distributes certain software products and
related services for the measurement of Internet usage.
B. I/PRO and Nielsen desire to enter into a strategic partnership for the
sale and marketing of existing Internet usage measurement and analysis products
and services developed by I/PRO.
C. The parties desire to set forth the terms and conditions under which
I/PRO and Nielsen will engage in the marketing of certain of I/PRO's Internet
usage measurement and analysis products and services;
D. I/PRO and Nielsen desire to establish a framework under which they may
implement future joint development and/or marketing agreements covering Internet
measurement products and services.
In consideration of the foregoing and the agreements contained herein, the
parties agree as follows:
1. Definitions.
------------
(a) "Confidential Information" shall mean all information provided by one
Party to the other which is marked to be confidential or verbally
indicated to be such prior to an oral/visual presentation (or, in the
case of information which is designated in writing to be confidential
subsequent to such presentation by a Party, such information shall
from the time of receipt by the other of such designation be
Confidential Information), including without limitation technical
information not included in user documentation related to the
Products, customer lists, marketing plans, financial information and
the terms of this Agreement.
(b) "End Customer" shall mean a person or entity that acquires the right
to use the Products for the person or entity's own personal or
internal business use, rather than for distribution or other transfer.
(c) "Future Products" shall mean products and services for the measurement
and analysis of Internet usage that may be developed in the future by
either Party, including but not limited to the product and related
services currently offered by I/PRO under the name "I/CODE."
(d) "I/PRO Proprietary Rights" shall mean all rights held by I/PRO in the
Products and its Confidential Information, including, without
limitation, patents, copyrights, authors' rights, trademarks,
tradenames, know-how and trade secrets, irrespective of whether such
rights arise under U.S. or international intellectual property, unfair
competition, trade secret or other laws.
(e) "Nielsen Proprietary Rights" shall mean all rights held by Nielsen in
its Confidential Information, including, without limitation, patents,
copyrights, authors' rights, trademarks, tradenames, know-how and
trade secrets, irrespective of whether such rights arise under U.S. or
international intellectual property, unfair competition, trade secret
or other laws.
(f) "Products" shall mean I/PRO's computer software products (and related
reporting services, technical maintenance and support) known as
I/COUNT and I/AUDIT (in each case as described on Exhibit A),
---------
including the accompanying user documentation, and any current and
future revisions and releases thereof, including all modifications,
upgrades and improvements made to the Products during the term of this
Agreement.
(e) "Product Development" shall mean the periodic refinement, enhancement
and development of new features and functionalities for the Products.
(g) "Reseller" shall mean a person (other than I/PRO or Nielsen) who
acquires the right to distribute the Products.
(h) "Technical Support" shall mean customer support services provided in
accordance with I/PRO's technical support policies then in effect and
as modified from time to time.
-2-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
2. Co-Branding of Products.
------------------------
(a) Exclusive Tradenames for Products. The Parties agree that during the
-----------------------------------
term of this Agreement, the Products will be marketed by I/PRO,
Nielsen and any Reseller only under the tradenames "Nielsen-I/PRO
I/COUNT" and "Nielsen-I/PRO I/AUDIT", without regard to the sales
channel employed.
(b) Co-Branding of Future Products. To the extent either Party intends to
-------------------------------
commercially introduce any Future Product during the term of this
Agreement, [**] under which such Future Product would be [**] the
Parties. [**]. Notwithstanding the foregoing, neither party will have
an obligation under this Agreement to develop any such Future
Products, and Nielsen will have no obligation under this Agreement to
sell and/or market any Future Products, absent an amendment of this
Agreement or a new agreement regarding such Future Products.
3. Sales and Distribution Rights; License Agreements.
--------------------------------------------------
(a) Grant of Marketing Rights. Subject to the terms and conditions of
-------------------------
this Agreement, I/PRO grants to Nielsen a world-wide non-exclusive,
non-transferable (except as set forth in Section 16(a) hereto) license
to market the Products and Services to End Customers and to Resellers
of the Products and Services. Promptly following notice from Nielsen
of a completed Product sale by Nielsen, Nielsen will enter into a
license agreement with the End Customer or Reseller and I/PRO will
implement the Product in accordance with I/PRO's installation
procedures.
(b) License Agreements. Distribution of the Product to End Customers or
-------------------
Resellers shall be made only pursuant to a license agreement executed
and delivered by the Party (either I/PRO or Nielsen, as the case may
be), which shall be in such form as the Parties may adopt from time to
time. Except as expressly provided herein, Nielsen shall have no
independent right to bind I/PRO to any agreement or to reproduce,
license or distribute the Products. Nielsen will be provided with the
opportunity to review the forms of agreements to be used with End
Customers and Resellers, and may provide I/PRO with suggested
modifications. I/PRO will promptly evaluate and, when appropriate,
incorporate such suggestions into I/PRO's form agreements. The Parties
will review the forms of agreement to be used with End customers and
-3-
Resellers and will attempt to establish mutually acceptable forms of
agreement to be used for such purposes. In the event the Parties are
unable to agree, each Party shall be entitled to use its preferred
form of agreement, provided that the terms of such agreement shall not
impose any material obligation on the other Party not otherwise
imposed upon that Party herein, or materially disadvantage or
otherwise damage the legitimate business interests of the other Party.
(c) No Restrictions on End Customer Sales. Each Party may market the
--------------------------------------
Products to any End Customer, even if such End User is or could be
deemed to be a competitor of Nielsen or I/PRO.
(d) Notice of I/PRO Resellers. I/PRO shall provide Nielsen with prompt
--------------------------
notice of the identity of all of I/PRO's End customers and Resellers
for the Products, and all sales by I/PRO of the Products shall be
subject to the terms and conditions of this Agreement. If Nielsen has
objections to any standards and quality levels then practiced by
Nielsen), Nielsen will document such objections to I/PRO, so that a
joint decision can be taken on whether the relationship with the
objectionable Reseller should be continued. If I/PRO chooses to
continue its relationship with such Reseller, I/PRO will provide
Nielsen with a list of End Customers served by the objectionable
Reseller, and Nielsen will be permitted to notify those customers that
it is not supporting product sold by that Reseller. In addition,
I/PRO shall remove Xxxxxxx'x name or logo from Products licensed to
such objectionable Reseller by I/PRO.
4. Joint Sales and Marketing.
--------------------------
(a) Concerted Efforts. Each Party agrees to use its reasonable efforts to
------------------
sell the Products through all distribution channels that they may deem
appropriate including, in the case of Nielsen, through all reasonable
efforts of existing sales organizations within Xxxxxxx Media Research.
The parties currently anticipate that Nielsen will focus on direct
sales to End Customers, while I/PRO will focus on indirect sales
thorough Resellers; provided that each Party may employ either
indirect or direct sales strategies in such Party's discretion, and it
is expressly understood and agreed between the parties that nothing
herein shall prevent either Party from accepting inquiries and
business from potential customers within the other Party's area of
focus.
(b) Coordination of Efforts. I/PRO shall be responsible for the
------------------------
coordination of sales and marketing efforts, including the development
and maintenance of a shared leads and sales database, and the
scheduling of monthly joint sales meetings. The parties will
coordinate their efforts to
-4-
ensure that branding, logos, promotional look and product messages
used by each Party shall be as consistent as possible. I/PRO and
Nielsen will use reasonable efforts to minimize sales and customer
conflicts in the Parties' respective sales efforts. Each Party will
designate a contact person for the other Party with respect to
activities under this Agreement, and the operational employees form
the major departments of each Party will establish direct
relationships.
(c) Confirmation of Capacity. Nielsen agrees that in the course of its
-------------------------
sales efforts it will not schedule installations or other service
activities by I/PRO except with I/PRO's prior confirmation of
availability of capacity.
(d) Reseller Materials. The Parties shall ensure that the messages and
------------------
materials used by Resellers shall be consistent with those used by the
Parties. Neither Nielsen nor any Reseller identified by Nielsen will
make any representations, warranties or guaranties with respect to the
specifications, features or capabilities of the Products or Services
that are not consistent with I/PRO's then-current published Product
descriptions and specifications.
5. Price, Payment and Commissions.
------------------------------
(a) Pricing. Nielsen and I/PRO will market the Products only in
--------
accordance with a pricing schedule to be jointly established from time
to time by mutual agreement of the Parties. The pricing schedule will
include a range of allowable discounts applicable under specified
market and customer conditions. I/PRO and Nielsen may from time to
time and by mutual agreement change the prices and discounts set forth
on the rate card. Pricing for separate but related Products and
related services will identify each component separately and will be
consistently valued.
(b) Commissions.
------------
(i) Amount. During the term of this Agreement, I/PRO will pay to
------
Nielsen commissions equal to a percentage of Net Revenues (as defined below)
from Products (a) sold primarily through the efforts of Nielsen (or through any
Reseller identified and closed by Nielsen), in the percentage amounts set forth
on Exhibit B with respect to sales to U.S.-based End customers or Resellers
---------
("U.S. Customers"); and (b) sold primarily through the efforts of I/PRO (or by
any Reseller not identified and closed by Nielsen), in the percentage amounts
set forth on Exhibit C with respect to sales to U.S. Customers. The Parties
---------
agree to negotiate in good faith to set Commissions payable on sales to
non-U.S.-based End Customers and
-5-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Resellers ("foreign Customers") on a country-by-country basis. If the Parties
cannot agree upon Commissions payable to Foreign Customers in any particular
country within thirty (30) days of the commencement of such good faith
negotiations, which thirty-day period shall begin to run upon receipt by one
Party of written notice that the other Party desires to begin such negotiations
accompanied by such information as the notifying party believes, in good faith,
provides a well-founded basis for the commissions proposed by the notifying
Party, then Commissions payable with respect to such sales in such country shall
be as set forth on Exhibit B (with respect to sales by Nielsen), or Exhibit C
--------- ---------
(with respect to sales by I/PRO), as the case may be. The Parties recognize that
because the costs associated with sales and service for Foreign Customers are
likely higher than for U.S. Customers, prices of the Products and Commissions
payable on sales of the Products to Foreign Customers may be adjusted upon
mutual agreement of the Parties. As used herein, "Net Revenues" means[**].
Each Party will invoice its respective Customers or Resellers. Commissions will
be paid to Nielsen at the end of each quarter with respect to Net Revenues and
accounts which are thirty (30) days or more overdue. It is understood that
whichever Party is responsible in law for the payment of taxes (if any) upon
revenues received from a Customer or Reseller shall pay such taxes, and shall be
responsible for the collection of such taxes.
(ii) Disputes. The Parties agree to mutually determine in good
---------
faith the amount of commission due in the event that I/PRO and Nielsen shall
disagree as to the Party responsible for the sale to the End Customer or
Reseller. I/PRO agrees to give Nielsen credit and pay Nielsen in accordance
with Exhibit B for any End Customers or Resellers over which a reasonable
---------
conflict arises.
(iii) Adjustments. The commissions set forth on Exhibit B and
------------ ---------
Exhibit C may be adjusted by mutual agreement of the Parties to reflect changes
---------
in pricing, costs, and market conditions, as the case may be. The Parties
acknowledge and agree that commissions must be set and periodically adjusted so
that prices can remain competitive with the marketplace, provide a reasonable
profit to I/PRO in each Product category, and a reasonable compensation to
Nielsen for its sales, support, and promotional efforts. In addition to
adjustments to commissions, the Parties also agree to consider other alternate
means of responding to competitive pressures on pricing of the Products.
Commissions on Future Products, if any, Parties subject to this Agreement will
be established upon mutual agreement of the Parties.
(iv) During the term of this Agreement, and for a period of two
(2) years thereafter, each Party will maintain books and records in connection
with its sales and marketing of the Products pursuant to this Agreement in
sufficient
-6-
detail to permit the other Party to verify compliance with the terms and
conditions of this Agreement. Each Party will have the right through its
independent auditors to inspect such books and records of the other Party solely
to verify the amount of commissions payable pursuant to this Section 5. Any such
audit will be conducted on reasonable notice and during regular business hours
and will not interfere unreasonably with either Party's business activities.
Audits will be made not more than twice annually.
6. Product Development and Maintenance. I/PRO will use its best efforts
------------------------------------
to ensure high quality standards for the Products, and will use its best efforts
to resolve any errors in systems or reports. I/PRO will be responsible for
Product Development. I/PRO agrees to consider suggestions and requirements of
the respective sales personnel of each Party, as well as customer response data
and feedback, and shall make such enhancements to the Products as are reasonable
and appropriate in light of overall technical and operational constraints of
I/PRO. I/PRO will schedule monthly coordination meetings between its Product
Development staff and sales personnel of each Party as an aid in meeting its
Product Development obligations. I/PRO will devote its reasonable best efforts
to continue to provide superior value to End Customers, including sufficient
resources to maintain the Products. I/PRO acknowledges that it is I/PRO's
intention to develop and maintain Products that are deemed in customer technical
evaluations to be demonstrably superior overall to similarly priced competitive
products. If at any time a majority of customer technical evaluations clearly
indicate that the Products are inferior overall to similarly priced competitive
products, Nielsen shall provide I/PRO with the results of such studies and shall
make specific recommendations (the "Recommendations") regarding the manner in
which the Products shall be improved. I/PRO shall have a reasonable time, which
shall not be less than six (6) months or substantially more than nine (9)
months, to implement the Recommendations. If after such period a majority of
customer technical evaluations clearly indicate that, for the reasons addressed
by the Recommendations, the Product is inferior overall to similarly priced
competitive products, Nielsen shall have the right to terminate this Agreement
upon 30 days written notice to I/PRO.
7. Support. Each Party shall be responsible, through its respective
--------
sales organization and at its own expense, to provide an initial response to End
Customers and Resellers closed by such Party as to questions concerning
technical issues, problems or questions regarding the Products. Further
Technical Support will be provided solely by I/PRO, in accordance with I/PRO's
customer support policies in effect from time to time. Nielsen shall have the
right, at Xxxxxxx'x expense, to supplement the Technical Support provided by
I/PRO. If at any time Nielsen can demonstrate to I/PRO based upon significant
indications of customer dissatisfaction that I/PRO's technical support is
insufficient to meet the needs of End Customers and Resellers, Nielsen and I/PRO
shall work together to establish adequate customer support, which shall be
financed by appropriate offsets to commissions payable, or
-7-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
such other method upon which the parties mutually agree. In addition, Nielsen
may provide additional analysis products and services to I/COUNT End Customers.
Nielsen may price such products and services separately; provided that the I/PRO
will receive a commission upon such products and services which is mutually
acceptable to both Parties. Nielsen may at its own expense also set up a hot-
line for third party I/AUDIT support, in addition to the standard I/AUDIT
support provided by I/PRO.
8. Exclusivity.
------------
(a) No Substantially Similar Agreements. During the term of the
------------------------------------
Agreement, I/PRO will not enter into any other comprehensive
agreement, such as this one, for the co-branding and marketing of the
Products; provided that I/PRO shall be permitted to enter into
bundling relationships with respect to other companies' products or
services.
(b) [**]. During the term of this Agreement, if the Parties [**] for the
[**] then the party [**] the other of such [**] will include a [**] of
the [**] including the [**] of such [**] of the [**] to be [**] and
other material terms [**]. The party [**] shall have the [**] in such
[**] of the [**] on terms that [**] with the [**] of such Party to
[**] shall be [**] such party's [**] under the [**]. In the event that
[**] within [**] party shall be [**] into the [**] on the [**] in the
[**]. Information [**] under this Section 8(b) shall be deemed to be
Confidential Information [**], and shall be treated in accordance with
Section 10 of this Agreement. Neither party shall be [**] the other
with respect to the [**] of any [**]. The Parties hereby expressly
acknowledge that Xxxxxxx'x relationship with Anywhere Online shall not
be subject to this Section 8(b).
(c) Derivative Informational Products and Services. The Parties may, upon
-----------------------------------------------
mutual agreement, develop and brand derivative informational products
and services based on data collected through use of the Products sold
pursuant to this Agreement. The Parties will share the revenues from
such products in such manner as the Parties may agree.
9. Property Rights.
----------------
(a) Intellectual Property Rights. I/PRO and Nielsen acknowledge and agree
----------------------------
that I/PRO owns all of the I/PRO Proprietary Rights. Any use by
Nielsen of such I/PRO Proprietary Rights is authorized only for the
purposes herein set forth and upon termination of this Agreement for
any reason, such authorization will cease. Nielsen and I/PRO
acknowledge and agree that Nielsen owns all of the Nielsen Proprietary
Rights. Any use by I/PRO of such Nielsen Proprietary Rights is
authorized only for the purposes herein set forth and upon termination
of this Agreement for any reason, such authorization will cease.
-8-
Ownership of products and services developed jointly by the Parties in
the future shall be determined by mutual agreement of the Parties.
(b) No Other Rights. Nielsen may not, directly or through any person or
----------------
entity, in any form or manner, copy, distribute, reproduce,
incorporate, use or allow access to the Products or modify, prepare
derivative works of, decompile, reverse engineer, disassemble or
otherwise attempt to derive source code or object code from the
Products, except as I/PRO may agree in writing. Each Party will take
appropriate steps with End Customers and Resellers, as the other Party
may reasonably request, to inform them of and assure their compliance
with the restrictions contained in this Agreement.
(c) Proprietary Notices. Neither Party will remove from any copy of the
--------------------
Products any copyright and other proprietary notices of the other
Party.
(d) Use of Trademarks. Subject to the terms and conditions of this
------------------
Agreement, during the term of this Agreement each Party grants to the
other a non-exclusive, world-wide license to use the other Party's
tradename and trademarks (collectively, the "Trademarks") to the
extent included in the Product names set forth in Section 2(a), and
for the purpose of marketing and selling the Products; provided that
the user submits all such media to the other Party for prior approval
and follows reasonable trademark usage guidelines communicated by the
other Party. Each Party understands that the other has applied for
and/or obtained applicable federal and state registration of certain
of the Trademarks and agrees, to so indicate on the box containing the
Products and in any advertisement, promotional materials or other
documents that contain the Trademarks. Except as expressly provided
herein, their Agreement shall not be construed to grant to any Party
any right, title or interest in the other's Trademarks. Upon
termination of this Agreement for any reason, each Party will
immediately cease all use of Products' names and Trademarks and
destroy or deliver to the other Party all materials in the user's
control or possession which bear such names and trademarks, including
any sales literature. At no time during or after the term of this
Agreement will either Party challenge or assist others to challenge
the other's Trademarks or the registration thereof or attempt to
register any trademarks, marks or tradenames confusingly similar to
those of the other. Each Party will present and promote the sale of
the Products and Services fairly.
-9-
10. Confidentiality.
----------------
(a) General. Except as provided in this Agreement, each Party will not
--------
use in any way for its own account of any third party, nor disclose to
any third party, any such Confidential Information revealed to it by
the other Party. Each Party agrees to protect any Confidential
Information from disclosure to others with at least the same degree of
care as that which is accorded to its own proprietary information, but
in no event with less than reasonable care. In the event of
termination of this Agreement, each Party agrees not use or disclose
any Confidential Information, to destroy or return all written or
electronic copies of Confidential Information of the other Party and
each Party will not develop or have developed any product programs
utilizing any of the Confidential Information.
(b) Exceptions. The foregoing restrictions will not apply to information
-----------
that (i) is known to each Party at the time of disclosure to that
Party as demonstrated by written or electronic records of the
receiving Party, (ii) has become publicly known through no wrongful
act of the receiving Party, (iii) has been rightfully received by a
Party from a third party authorized to make such disclosure without
restriction, or (iv) has been approved for release by written
authorization of the disclosing Party.
(c) Notice. Each Party agrees to notify the other promptly in the event
-------
of any breach of confidentiality its security under conditions in
which it would appear that any Confidential Information was prejudiced
or exposed to loss. Each Party shall, upon request of the other, take
all reasonable steps necessary to recover any confidential Information
disclosed to or placed in the possession of the receiving Party by
virtue of this Agreement. The cost of taking such actions shall be
borne solely by the breaching Party.
(d) Non-Disclosure Agreement. The parties agree that the Non-Disclosure
-------------------------
Agreement dated January 20, 1995 shall remain in full force and effect
as to disclosures made prior to the date of this Agreement.
11. Indemnity.
---------
(a) Indemnification by I/PRO. I/PRO agrees, at its own expense, to defend
------------------------
or at its option to settle any claim or action brought against Nielsen
on the issue of infringement of any patent, copyright or other
intellectual property right of any third party by the Products as used
or distributed within the scope of this Agreement, and to indemnify
Nielsen against all damages and costs, including reasonable legal
fees, which may be
-10-
assessed against Nielsen under any such claim or action; provided that
--------
Nielsen provides I/PRO with (i) prompt written notice of such claim or
action, (ii) sole control and authority over the defense or settlement
of such claim or action and (iii) the authority, information and
assistance that is reasonably necessary for defense or settlement of
the claim or action. In the event that the Products, or a part
thereof, are held, or in I/PRO's sole opinion, may be held to
constitute an infringement, I/PRO, at its option and expense, may
either (w) procure, at no additional cost to Nielsen or any and all
End Customers or Resellers with whom Nielsen has completed a Product
sale, the right to continue to use the Product(s), (x) modify the
Products so they become non-infringing, (y) replace the Products with
functionally equivalent non-infringing materials reasonably acceptable
to Nielsen or (z) accept return of the Products. Notwithstanding the
foregoing, I/PRO will have no liability if the alleged infringement
arises from (i) the use, in the manner specified in relevant I/PRO
documentation, of other than a then current release of the Products,
or (ii) combinations of the Products with non-I/PRO programs or
products, including any Nielsen products, unless such combination is
authorized in advance in writing by I/PRO. THE FOREGOING STATES THE
ENTIRE LIABILITY AND OBLIGATIONS OF I/PRO AND THE EXCLUSIVE REMEDY OF
NIELSEN, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF
PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL
PROPERTY RIGHTS BY THE PRODUCTS. In addition, I/PRO agrees to
indemnify and hold Nielsen harmless from and against any cost, loss,
expense (including attorney's fees) resulting from any and all claims
by third parties for loss, damage or injury allegedly caused by any
wrongful act, misrepresentation or omission by I/PRO in connection
with I/PRO's activities under this Agreement; Nielsen has have the
right to participate at its expense in any such dispute.
(b) Indemnification by Nielsen. Nielsen agrees to indemnify and hold
--------------------------
I/PRO harmless from and against any cost, loss, expense (including
attorney's fees) resulting from any and all claims by third parties
for loss, damage or injury allegedly caused by any wrongful act,
misrepresentation or omission by Nielsen in connection with Xxxxxxx'x
activities under this Agreement; I/PRO shall have the right to
participate at its expense in any such dispute. Notwithstanding the
foregoing, Nielsen assumes no liability hereunder for claims or
actions resulting from or arising out of the design, development
and/or operation of the Products.
-11-
12. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, I/PRO
-------------------
GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE
PRODUCTS, THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY,
OR OTHERWISE.
13. Termination.
-----------
(a) Term. This Agreement shall become effective on the date first written
----
on this Agreement and shall continue for a period of three (3) years,
and shall be continued thereafter unless either Party notifies the
other of termination of the Agreement not less than nine (9) months
prior to the effective date of such termination.
(b) Termination for Cause. Either Party may terminate this Agreement at
---------------------
any time if the other Party materially breaches this Agreement and
fails to cure such breach within sixty (60) days after written notice
of such breach, or if the other Party shall become insolvent, or if
either Party makes an assignment for the benefit of creditors, or if
there are instituted by or against either party proceedings in
bankruptcy or under any insolvency or similar law or for
reorganization, receivership or dissolution.
(c) Termination Liability. Neither party shall be liable in any manner on
---------------------
account of such Party's determination on termination or cancellation
of this Agreement in accordance with its terms. Each Party shall
immediately discontinue all advertising and marketing references of
any kind to the other Party and/or its products upon such termination
or cancellation. The rights of termination and cancellation as set
forth herein are absolute.
(d) Obligations Upon Termination. The termination or expiration of this
----------------------------
Agreement shall in no way relieve either party from its obligations to
pay the other any sums accrued hereunder prior to such termination or
expiration.
14. Limitation of Liability. EXCEPT AS SET FORTH IN SECTION 11 HERETO,
-----------------------
NEITHER I/PRO NOR NIELSEN SHALL HAVE ANY LIABILITY TO THE OTHER, FOR ANY LOST
PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER ARISING
UNDER CONTRACT, TORT OR OTHER THEORY OF LIABILITY. IT IS ACKNOWLEDGED BY THE
PARTIES THAT NOTHING IN THIS SECTION 14 SHALL LIMIT A PARTY'S OBLIGATION TO PAY
AMOUNTS ALREADY DUE AND OWING TO THE OTHER PARTY. THESE LIMITATIONS SHALL APPLY
-12-
NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
15. Certain Equity Matters. The Parties acknowledge and agree that,
----------------------
concurrently with the execution and delivery of this Agreement, I/PRO is
delivering to Nielsen certain warrants to purchase Common Stock of I/PRO. I/PRO
also agrees during the term of this Agreement to provide notice of each meeting
of I/PRO's Board of Directors and will permit a representative of Nielsen (who
shall be reasonably acceptable to I/PRO) to attend such meetings, without any
power to vote and subject to exclusion with respect to any portion of any Board
meeting which, in the good faith determination of I/PRO's Board of Directors,
involves confidential information of I/PRO disclosure of which to Nielsen would
be expected to involve a conflict of interest detrimental to I/PRO. Nielsen
may, upon appropriate notice to I/PRO's President or Chairman of the Board of
Directors, submit appropriate matters for the agenda at any such Board meeting.
16. Miscellaneous.
-------------
(a) Assignment. This Agreement will be binding upon and inure to the
----------
benefit of the parties hereto and their permitted successors and
assigns. Notwithstanding the foregoing, neither this Agreement, nor
any rights or obligations hereunder, may be assigned or otherwise
transferred by either Party, except to any successor to all or
substantially all of such Party's assets or a majority of the voting
power of such Party's capital stock or, in the case of Nielsen, to an
assignee of or successor to substantially all of the business or
assets of Xxxxxxx'x Xxxxxxx Media Research division. Any other
assignment or transfer without prior written consent will be null and
void.
(b) Severability. If one or more provisions of this Agreement are held to
------------
be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the
parties cannot reach a mutually agreeable and enforceable replacement
for such provision, then (x) such provision shall be excluded from
this Agreement, (y) the balance of the Agreement shall be interpreted
as if such provision were so excluded and (z) the balance of the
Agreement shall be enforceable in accordance with its terms.
(c) Legal Expenses. The prevailing party in any legal action brought by
--------------
one Party against the other and arising out of or relating to this
Agreement shall be entitled, in addition to any other rights and
remedies it may have, to reimbursement for its expenses, including
court costs and reasonable attorneys' fees (including those incurred
in any appeal).
-13-
(d) Titles and Subtitles. The titles and subtitles used in this Agreement
--------------------
are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(e) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
(f) Entire Agreement; Enforcement of Rights. This Agreement sets forth
---------------------------------------
the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them.
No modification of or amendment to this Agreement, nor any waiver of
any rights under this Agreement, shall be effective unless in writing
signed by the party to be charged. The failure by either party to
enforce any rights hereunder shall not be construed as a waiver of any
rights of such party.
(g) Governing Law. The validity, construction and enforceability of this
-------------
Agreement shall be governed in all respects by the law of California
applicable to agreements negotiated, executed and performed in
California, whether one or more of the parties shall be or hereafter
become a resident of another state or country, and without reference
to conflict of laws principles.
(h) Exclusive Jurisdiction. The Parties agree that all disputes arising
----------------------
among them related to this Agreement, whether arising in contract,
tort, equity or otherwise, shall be resolved only in the United States
federal courts in the Northern District in California or California
State courts located in San Francisco County, California. Each Party
hereby irrevocably submits to the personal jurisdiction of such
courts.
(i) Force Majeure. If the performance of this Agreement or any
-------------
obligations hereunder is prevented, restricted or interfered with by
reason of fire or other casualty or accident, strikes or labor
disputes, war or other violence, any law, order, proclamation,
regulation, ordinance, demand or requirement of any government agency,
or any other act or condition beyond the reasonable control of the
parties hereto, the party so affected upon giving prompt notice to the
other parties shall be excused from such performance during such
prevention, restriction or interference.
(j) Notices and Other Communications. Notice by any party under this
--------------------------------
Agreement shall be in writing and personally delivered or given by
registered mail, overnight courier, telecopy confirmed by registered
mail, telefax or prepaid cable, or e-mail transmission via Internet
(with a
-14-
copy by first class, certified mail, postage prepaid on the first
business day thereafter) addressed to the other party at its
respective address given herein (or at any such other address as may
be communicated to the notifying party in writing) and shall be deemed
to have been served when delivered or, if delivery is not accomplished
by reason of some fault of the addressee, when tendered.
(k) Import and Export Controls. Nielsen understands and acknowledges that
--------------------------
I/PRO may be subject to regulation by agencies of the U.S. government,
including the U.S. Department of Commerce which prohibit export or
diversion of certain products and technology to certain countries. Any
and all obligations of I/PRO to provide Products or any media in which
the Products is contained, as well as any training or technical
assistance will be subject in all respects to such U.S. laws and
regulations as will from time to time govern the license and delivery
of technology and products abroad by persons subject to the
jurisdiction of the U.S., including the Export Administration Act of
1979, as amended, any successor legislation, and the Export
Administration Regulations issued by the Department of Commerce,
International Trade Administration, Bureau of Export Administration.
Notwithstanding anything to the contrary contained herein, the parties
agree that unless prior authorization is obtained from the Office of
Export Licensing, the parties shall not export, reexport, or
transship, directly or indirectly, to country groups Q, S, W, Y or Z
(as defined in the Export Administration Regulations), or Afghanistan
or the People's Republic of China (excluding Taiwan), the Products or
any of the technical data disclosed hereunder or the direct product of
such technical data.
(l) Remedies. The parties acknowledge that any breach of any of the
--------
obligations under Sections 10, 11 and 14 is likely to cause or
threaten irreparable harm, and, accordingly, the parties agree that in
such event, the other party shall be entitled to equitable relief to
protect its interest therein, including but not limited to preliminary
and permanent injunctive relief, as well as money damages.
[SIGNATURE PAGE FOLLOWS]
-15-
The parties have executed this Agreement as of the date first written
above.
INTERNET PROFILES CORPORATION, XXXXXXX MEDIA RESEARCH, A
a California corporation DIVISION OF X.X. XXXXXXX
COMPANY, a Delaware corporation
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxxxxx
---------------------- ------------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxxxxx
-------------------- ----------------------
Title: President Title: Sr. Vice President
------------------- ---------------------
Address: Address:
Internet Profiles Corporation Xxxxxxx Media Research
000 Xxxxxx Xxxxxx, 00xx floor 000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Chief Financial Officer Attn: Sr. Vice President, Planning
and Development
-16-
Exhibit A
---------
Produce Description
-------------------
I/AUDIT is that certain software program and related services referred to
by I/PRO as I/AUDIT, all as more fully described on I/PRO's World Wide Web site
with the URL xxxx://xxx.xxxx.xxx/xxxxxx.xxxx. I/AUDIT does not include the
I/PRO product known as "I/CODE".
I/COUNT is that certain software program and related services referred to
by I/PRO as I/COUNT, all as more fully described on I/PRO's World Wide Web site
with the URL xxxx://xxx.xxxx.xxx/xxxxxx.xxxx. I/COUNT does not include the
I/PRO product known as "I/CODE".
-17-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit B
---------
Nielsen Commission Terms
------------------------
(U.S. End Customers or Resellers)
------------------------------------------------------------------------
Product Percentage [**]
------- ---------------
------------------------------------------------------------------------
I/AUDIT [**]
------------------------------------------------------------------------
I/COUNT [**]
(aggregate cumulative sales of I/COUNT
by Nielsen [**])
------------------------------------------------------------------------
I/COUNT [**]
(aggregate cumulative sales of I/COUNT
by Nielsen [**])
------------------------------------------------------------------------
-18-
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit C
---------
I/PRO Commission Terms
----------------------
(U.S. End Customers or Resellers)
-----------------------------------------------------------------------------
Product Percentage [**]
------- ---------------
-----------------------------------------------------------------------------
I/AUDIT [**]
-----------------------------------------------------------------------------
I/COUNT [**]
(sold directly by I/PRO)
-----------------------------------------------------------------------------
I/COUNT [**]
(sold by any Reseller or other channel)
-----------------------------------------------------------------------------
-19-
