Certain confidential information contained in this document, markedby brackets, is filed with the Securities and Exchange Commissionpursuant to Rule 24b-2 of the Securities Exchange Act of 1934,as amended.**Exhibit 10.26****CONFIDENTIAL — SUBJECT TO FRE 408****SETTLEMENT AND PATENT CROSS-LICENSE AGREEMENT**     THIS AGREEMENT (the “***Agreement***”) is made as of this 17th day of August, 2007 (the “***EffectiveDate***”) by and between NetRatings, Inc., a Delaware corporation, with offices at 770 Broadway, NewYork, NY 10003 (“***NetRatings***”), on the one hand, and Visual Sciences, Inc., formerly known asWebSideStory, Inc., a Delaware corporation, with offices at 10182 Telesis Court, San Diego, CA92121 (“***VSI/WSS***”), on the other hand (NetRatings and VSI/WSS collectively, the “***Parties***”).**W I T N E S S E T H:**     **WHEREAS**, NetRatings and VSI/WSS are presently engaged in two civil actions, one of which beingcaptioned *NetRatings, Inc. v. WebSideStory, Inc*., Civil Action No. 06-cv-878 (LTS) (AJP) (S.D.N.Y.)(hereinafter, the “New York Action”) and the other of which being captioned *WebSideStory, Inc., v.NetRatings, Inc*., Civil Action No. 06-cv-0408 (WQH) (AJB) (S.D. Ca.) (hereinafter, the “***CaliforniaAction***,” and collectively with the New York Action, the “***Current Actions***”);     **WHEREAS**, NetRatings and Visual Sciences Technologies, LLC, formerly known as and successor ininterest to, Visual Sciences, LLC, a Delaware limited liability company with offices at 13450Sunrise Valley Road, Herndon, VA 20171 (“***VSTLLC***”) were engaged in litigation in the United StatesDistrict Court for the Eastern District of Virginia, captioned *NetRatings, Inc*. *v*. *Visual Sciences,LLC*, Civil Action No. 2:05-CV-349 (the “***Virginia Action***”);     **WHEREAS**, NetRatings and Visual Sciences, LLC entered into a Settlement and Patent LicenseAgreement, dated October 25, 2005 and annexed hereto as Attachment 1 (the “***Virginia ActionAgreement***”), pursuant to which the Virginia Action was dismissed and NetRatings granted to VisualSciences, LLC a license to certain NetRatings’ patents, as further described in the Virginia ActionAgreement;     **WHEREAS**, on February 1, 2006, VSI/WSS, acquired VSTLLC, through a merger of Visual Sciences,LLC into VS Acquisition, LLC, as a result of which the Virginia Action Agreement was assigned to VSAcquisition, LLC by operation of law;     **WHEREAS**, VS Acquisition, LLC subsequently changed its name to Visual Sciences, LLC, andthereafter in May 2007 to Visual Sciences Technologies, LLC and all references herein to VSTLLCinclude its predecessor entities Visual Sciences, LLC and VS Acquisition, LLC;     **WHEREAS**, since February 2006 and now, VSTLLC has been and continues to operate as a whollyowned subsidiary of VSI/WSS;     **WHEREAS**, on May 9, 2007, VSI/WSS amended its Certificate of Incorporation to change itscorporate name from “WebSideStory, Inc.” to “Visual Sciences, Inc.”;
 

 
     **WHEREAS**, NetRatings and VSI/WSS wish to resolve and settle the Current Actions and alldisputes that are the subject matter of the Current Actions;     **WHEREAS**, NetRatings is the sole and exclusive owner or joint owner of certain patents andpatent applications, as further identified herein;     **WHEREAS**, VSI/WSS is the sole and exclusive owner of certain patents and patent applications,as further identified herein; and     **WHEREAS**, as part of the settlement of the Current Actions, NetRatings and VSI/WSS wish togrant to one another cross-licenses to certain of their respective patents, as further identifiedherein, pursuant to the terms and subject to the conditions of this Agreement.     **NOW, THEREFORE**, in consideration of the mutual promises, agreements and covenants hereincontained, and for other good and valuable consideration, the receipt and sufficiency of which ishereby acknowledged and agreed, the Parties agree as follows:1. **DEFINITIONS**     The capitalized terms in this Agreement which are not defined in the text of the Agreementshall have the meanings set forth in this Section 1. In addition, the existence or scopeof any defined term in this Agreement shall not constitute or be deemed to be the belief on thepart of NetRatings that the NetRatings Patents or any claims therein are in any way limited inscope or to application or enforcement in any particular field(s) of use.     1.1 ***“Affiliate”***shall mean, with respect to a “person” or “entity,” any other person or entitythat, directly or indirectly through one or more intermediaries, controls or is controlled by or isunder common control with such “person” or “entity.” For purposes of this definition, “control,”as used with respect to any person or entity, shall mean the possession, directly or indirectly, ofthe power to direct or cause the direction of the management or policies of such person or entity,whether through the ownership of voting securities, by agreement or otherwise. The terms“controlled by” and “under common control with” shall have correlative meanings.     1.2 ***“Licensed NetRatings Products”***shall mean any products, technology or services (whether inwhole or in part, or any portion thereof, and whether pursuant to sale, license, subscriptionservice or otherwise) that are manufactured, made or developed by or for NetRatings from time totime, or that are used, licensed, marketed, offered for sale, distributed, exported, imported orsold by NetRatings from time to time, directly or indirectly. Licensed NetRatings Productscommercially released as of the Effective Date are listed on Schedule B hereto. Except tothe extent permitted by Section 15.3, Licensed NetRatings Products shall not include anyproduct, technology or service developed by and for an entity other than NetRatings and which aresold by third parties.     1.3 ***“Licensed VSI/WSS Products”***shall mean any products, technology or services (whether inwhole or in part, or any portion thereof, and whether pursuant to sale, license, subscriptionservice or otherwise) that are manufactured, made or developed by or for VSI/WSS from time to time,or that are used, licensed, marketed, offered for sale, distributed, exported, imported or sold byVSI/WSS from time to time, directly or indirectly, including, without
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limitation, Merged VSI/WSS Products (as defined in Section 5.3(ii) of this Agreement).Licensed VSI/WSS Products commercially released as of the Effective Date are listed onSchedule A hereto. Except to the extent permitted by Section 15.1 or Section 16.1and except for Merged VSI/WSS Products, Licensed VSI/WSS Products shall not include any product,technology or service developed by and for an entity other than VSI/WSS and which are sold by thirdparties, including, without limitation, any product, technology or service developed solely by andfor VSTLLC.     1.4 ***“NetRatings Additional Patents”***shall mean all United States and foreign issued patentsand United States and foreign pending patent applications, other than the NetRatings Patents, ownedor controlled by NetRatings as of the Effective Date. For the avoidance of doubt, NetRatingsAdditional Patents shall not include any United States and foreign issued patents and United Statesand foreign pending patent applications owned or controlled by Nielsen Media Research, Inc., orother subsidiaries of The Nielsen Company other than NetRatings. NetRatings will provide VSI/WSS,within thirty (30) days of the Effective Date, a schedule of the NetRatings Additional Patents. Inaddition, the NetRatings Additional Patents shall include any foreign counterparts, and UnitedStates or foreign patents issuing as a divisional, continuation, continuation-in-part, reissue,reexamination, renewal or extension, of any of the foregoing patents and patent applications (otherthan the NetRatings Patents), as well as any and all other present or future United States orforeign patents or patent applications that claim priority to any of the above.     1.5 ***“NetRatings Change of Control Event”***shall mean the closing of a sale or transfer to oracquisition by a person or entity other than an entity that is a “Designated Affiliate” ofNetRatings (both at the time of the sale, transfer or acquisition and immediately following thelast transaction to occur in a series of related transactions) (such person or entity, a***“NetRatings Purchaser”***), whether by merger, asset purchase, consolidation, reorganization, or othersimilar transaction or series of related transactions, of (i) all or substantially all of theassets of NetRatings; (ii) fifty percent (50%) or more of the combined voting power of NetRatingsthen outstanding securities; or (iii) all or substantially all of the Web Analytics assets ofNetRatings. For purposes of this Section 1.5, a “***Designated Affiliate***” means an Affiliateof NetRatings that is at least 85% owned, directly or indirectly, by NetRatings, or that owns atleast 85%, directly or indirectly, of NetRatings, or of which the same ultimate parent entity owns,directly or indirectly, at least 85% of each of NetRatings and such Affiliate.     1.6 ***“NetRatings Customer”***shall mean any person or entity who, with express authorization fromNetRatings or a NetRatings Provider, purchases, leases, licenses, subscribes to or uses anyLicensed NetRatings Product only for such person’s or entity’s own use internally or in monitoring,tracking, or analyzing the use or access of computer resources delivered by such person or entityover a network, and not for the purpose of providing the Licensed NetRatings Product or any servicedepending thereon to a third party.     1.7 ***“NetRatings Patents”***shall mean U.S. Patent Nos. 5,675,510; 6,115,680; 6,108,637;5,796,952; 6,138,155; 6,643,696 and 6,763,386 and any foreign counterparts, and United States orforeign patents issuing as a divisional, continuation, continuation-in-part, reissue,reexamination, renewal or extension of any of the foregoing patents and patent
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applications, as well as any and all other present or future United States or foreign patentsor patent applications that claim priority to any of the above.     1.8 ***“NetRatings Provider”***shall mean any person or entity who, with express authorization fromand on behalf of NetRatings (including without limitation OEMs, resellers, distributors andmarketing service providers (MSPs)), manufactures or develops any Licensed NetRatings Product forNetRatings, uses any Licensed NetRatings Product to provide services on behalf of NetRatings toNetRatings Customers, or offers for sale, sells, imports, exports, resells, licenses, combines ordistributes to NetRatings Customers any Licensed NetRatings Product whether on a standalone basisor in combination with its own products or services, including, but not limited to, for the purposeof providing the Licensed NetRatings Product or any service depending thereon to a third party.“NetRatings Provider” shall also include any person or entity in another NetRatings Provider’schannels of distribution with respect to a Licensed NetRatings Product, provided that said personor entity has express authorization from, and is acting on behalf of, NetRatings to participate insaid channels of distribution.     1.9 ***“Revenue”***shall mean the gross consolidated revenues of a person or entity from themanufacture, development, design, sale, offer for sale, resale, import, export, integration,hosting, leasing, licensing or distribution of products, technology and/or services, less,sales, VAT, excise, or similar taxes, returns, refunds, discounts, and allowances actually shown onan applicable invoice. Except as noted in the preceding sentence, no costs shall be deducted fromRevenue. Revenue of a person or entity shall be deemed to have occurred when such revenue isrecognized by such person or entity in accordance with generally accepted accounting principlesapplied by such person or entity from time to time.     1.10 ***“Term”***shall mean the period commencing as of the Effective Date and continuing to andincluding the date on which the last remaining NetRatings Patent or VSI/WSS Patent expires,whichever is later, unless earlier terminated in accordance with Section 10.     1.11 ***“VSI/WSS Additional Patents”***shall mean all United States and foreign issued patents andUnited States and foreign pending patent applications, other than the VSI/WSS Patents, owned orcontrolled by VSI/WSS as of the Effective Date. For the avoidance of doubt, VSI/WSS AdditionalPatents shall not include any United States and foreign issued patents and United States andforeign pending patent applications owned or controlled by VSTLLC. VSI/WSS will provideNetRatings, within thirty (30) days of the Effective Date, a schedule of the VSI/WSS AdditionalPatents. In addition, the VSI/WSS Additional Patents shall include any foreign counterparts, andUnited States or foreign patents issuing as a divisional, continuation, continuation-in-part,reissue, reexamination, renewal or extension, of any of the foregoing patents and patentapplications (other than the VSI/WSS Patents), as well as any and all other present or futureUnited States or foreign patents or patent applications that claim priority to any of the above.     1.12 ***“VSI/WSS Change of Control Event”***shall mean the closing of a sale or transfer to oracquisition by a person or entity, other than an entity that is a “Designated Affiliate” of VSI/WSS(both at the time of the sale, transfer or acquisition and immediately following the lasttransaction to occur in a series of related transactions) (such person or entity, a ***“VSI/WSSPurchaser”***), whether by merger, asset purchase, consolidation, reorganization, or other similar
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transaction or series of related transactions, of (i) all or substantially all of the assetsof VSI/WSS; (ii) fifty percent (50%) or more of the combined voting power of VSI/WSS’s thenoutstanding securities; or (iii) all or substantially all of the Web Analytics assets of VSI/WSS.For purposes of this Section 1.12, a ***“Designated Affiliate”***means an Affiliate of VSI/WSSthat is at least 85% owned, directly or indirectly, by VSI/WSS, or that owns at least 85%, directlyor indirectly, of VSI/WSS, or of which the same ultimate parent entity owns, directly orindirectly, at least 85% of each of VSI/WSS and such Affiliate.     1.13 ***“VSI/WSS Customer”***shall mean any person or entity who, with express authorization fromVSI/WSS or a VSI/WSS Provider, purchases, leases, licenses, subscribes to or uses any LicensedVSI/WSS Product only for such person’s or entity’s own use internally or in monitoring or trackingthe use or access of computer resources delivered by such person or entity over a network, and notfor the purpose of providing the Licensed VSI/WSS Product or any service depending thereon to athird party.     1.14 ***“VSI/WSS Patents”***shall mean U.S. Patent Nos. 6,393,479 and 6,766,370 and any foreigncounterparts, and United States or foreign patents issuing as a divisional, continuation,continuation-in-part, reissue, reexamination, renewal or extension of the foregoing patents andpatent applications, as well as any and all other present or future United States or foreignpatents or patent applications that claim priority to the above.     1.15 “***VSI/WSS Provider***” shall mean any person or entity who, with express authorization fromand on behalf of VSI/WSS (including without limitation OEMs, resellers, distributors and marketingservice providers (MSPs)), manufactures or develops any Licensed VSI/WSS Product for VSI/WSS, usesany Licensed VSI/WSS Product to provide services on behalf of VSI/WSS to VSI/WSS Customers, oroffers for sale, sells, imports, exports, resells, licenses, combines or distributes to VSI/WSSCustomers any Licensed VSI/WSS Product whether on a standalone basis or in combination with its ownproducts or services, including, but not limited to, for the purpose of providing the LicensedVSI/WSS Product or any service depending thereon to a third party. “VSI/WSS Provider” shall alsoinclude any person or entity in another VSI/WSS Provider’s channels of distribution with respect toa Licensed VSI/WSS Product, provided that said person or entity has express authorization from, andis acting on behalf of, VSI/WSS to participate in said channels of distribution.     1.16 ***“Web Analytics”***shall mean [ * ].2. **PATENT CROSS-LICENSE**     2.1 Grant of License to VSI/WSS. Subject to Section 2.3, NetRatings herebygrants to VSI/WSS, subject to the terms and conditions of this Agreement, a limited, irrevocable(except as provided in Section 10), non-exclusive, non-transferable (except as provided inSection 15), royalty-bearing, world-wide license under the NetRatings Patents during theTerm to make (including the right to practice methods, processes and procedures), have made, use, * This information has been omitted pursuant to a requestfor confidential treatment under 24b-2 of the Exchange Act of 1934 and has beenfiled separately with the Securities and Exchange Commission.
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license, lease, sell, offer for sale, market, distribute, export and import the LicensedVSI/WSS Products (the “***VSI/WSS License***”).     2.2 Grant of License to NetRatings. VSI/WSS hereby grants to NetRatings, subject tothe terms and conditions of this Agreement, a limited, irrevocable (except as provided inSection 10), non-exclusive, non-transferable (except as provided in Section 15.3),world-wide license under the VSI/WSS Patents during the Term to make (including the right topractice methods, processes and procedures), have made, use, license, lease, sell, offer for sale,market, distribute, export and import the Licensed NetRatings Products (the “***NetRatings License***”).     2.3 Exclusions to VSI/WSS License. Notwithstanding anything in this Agreement to thecontrary, VSI/WSS expressly acknowledges and agrees that the VSI/WSS License granted under thisAgreement does not permit VSI/WSS (or therefore any VSI/WSS Customers or VSI/WSS Providers) theright to:(i) [ * ]; or(ii)[ * ]; or(iii)[ * ].     2.4 Reservation of Rights.          (i) Any and all rights not expressly granted to VSI/WSS in this Agreement with respect to theNetRatings Patents, including, without limitation, the rights reserved under Section 2.3 topractice the NetRatings Patents and the right to enforce the NetRatings Patents against thirdparties and collect royalties and/or damages in connection therewith, are hereby reserved andretained exclusively by NetRatings.          (ii) Any and all rights not expressly granted to NetRatings in this Agreement with respect tothe VSI/WSS Patents, including, without limitation, the right to enforce the VSI/WSS Patentsagainst third parties and collect royalties and/or damages in connection therewith, are herebyreserved and retained exclusively by VSI/WSS.     2.5 Sublicense Rights          (i) Sublicense Rights of VSI/WSS. As part of its rights under the VSI/WSS License,and only to the extent of such rights, VSI/WSS may grant to (1) VSI/WSS Customers a limited,non-exclusive, non-transferable, written sublicense under the VSI/WSS License solely for thepurpose of allowing such entities to purchase or use the Licensed VSI/WSS Products and (2) VSI/WSSProviders a limited, non-exclusive, non-transferable, written sublicense under the VSI/WSS Licensesolely for the purpose of allowing such entities to manufacture or develop any Licensed VSI/WSSProduct for VSI/WSS, or offer for sale, sell, import, export, resell, license, *  This information has been omitted pursuant to a requestfor confidential treatment under 24b-2 of the Exchange Act of 1934 and has beenfiled separately with the Securities and Exchange Commission.
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combine or distribute to VSI/WSS Customers any Licensed VSI/WSS Product whether on astandalone basis or in combination with its own products or services, including but not limited to,for the purpose of providing the Licensed VSI/WSS Product or any service depending thereon to athird party. Such sublicenses shall in no event apply to products, services or technology of aVSI/WSS Customer or VSI/WSS Provider which, without the Licensed VSI/WSS Product, infringes anyindependent claim of any NetRatings Patents. Other than as expressly provided by this Section2.5(i), no other sublicenses of any kind may be granted by VSI/WSS under this Agreement, andany such sublicenses shall be null and void. Any sublicenses granted under this Section2.5(i) are only valid and in effect when and if the VSI/WSS License is valid and in effect.          (ii) Sublicense Rights of NetRatings. As part of its rights under the NetRatingsLicense, and only to the extent of such rights, NetRatings may grant to (1) NetRatings Customers alimited, non-exclusive, non-transferable, written sublicense under the NetRatings License solelyfor the purpose of allowing such entities to purchase or use the Licensed NetRatings Products and(2) NetRatings Providers a limited, non-exclusive, non-transferable, written sublicense under theNetRatings License solely for the purpose of allowing such entities to manufacture or develop anyLicensed NetRatings Product for NetRatings, or offer for sale, sell, import, export, resell,license, combine or distribute to NetRatings Customers any Licensed NetRatings Product whether on astandalone basis or in combination with its own products or services, including but not limited to,for the purpose of providing the Licensed NetRatings Product or any service depending thereon to athird party. Such sublicenses shall in no event apply to products, services or technology of aNetRatings Customer or NetRatings Provider which, which without the Licensed NetRatings Product,infringes any independent claim of any VSI/WSS Patents. Other than as expressly provided by thisSection 2.5(ii), no other sublicenses of any kind may be granted by NetRatings under thisAgreement, and any such sublicenses shall be null and void. Any sublicenses granted under thisSection 2.5(ii) are only valid and in effect when and if the NetRatings License is validand in effect.     2.6 Markings and Samples. VSI/WSS and NetRatings shall each fully comply with thepatent marking provisions of the United States or other applicable patent laws. In furtherance ofthe foregoing, VSI/WSS and NetRatings will clearly label their respective Licensed VSI/WSS Productsand Licensed NetRatings Products with, in the case of Licensed VSI/WSS Products, identifyingnumbers of any issued NetRatings Patents, specifying that the Licensed VSI/WSS Products arelicensed under such NetRatings Patents, and in the case of Licensed NetRatings Products,identifying numbers of any issued VSI/WSS Patents, specifying that the Licensed NetRatings Productsare licensed under such VSI/WSS Patents. As may be requested from time to time, but in no eventmore than once each calendar year of the Term, VSI/WSS and NetRatings shall submit to each otherfive (5) samples of each of their respective Licensed VSI/WSS Products and Licensed NetRatingsProducts, or such other evidence, including screen captures, as will be reasonably sufficient toshow that the marking requirements of this Section 2.6 are being fulfilled. The marking ofany Licensed VSI/WSS Product or Licensed NetRatings Product pursuant to this Agreement shall not bedeemed to constitute an admission by VSI/WSS or NetRatings that their respective Licensed VSI/WSSProducts and Licensed NetRatings Products are covered by either the NetRatings Patents or theVSI/WSS Patents, as the case may be.
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3. **PAYMENT OF ROYALTIES**     3.1 Royalty Fees for VSI/WSS License.          (i) Initial Royalty. As partial consideration for the settlement of the New York andCalifornia Actions and the VSI/WSS License granted under this Agreement, and regardless of whetherany additional payments are paid under Section 3.1 of this Agreement, VSI/WSS shall paynine-million U.S. dollars ($9,000,000) to NetRatings (the “***Initial Royalty***”) as follows:(1) within five (5) business days from the date on which VSI/WSS executes this Agreement andreceives a copy of this Agreement that has been fully executed by a duly authorized representativeof NetRatings, VSI/WSS shall pay two-million U.S. dollars ($2,000,000) to NetRatings; and(2) commencing on March 31, 2008, and continuing thereafter on the last day of each calendarquarter through and including June 30, 2011, VSI/WSS shall pay five-hundred thousand U.S. dollars($500,000) to NetRatings, for a total of seven-million U.S. dollars ($7,000,000) in quarterlypayments. Notwithstanding the foregoing, in the event of a VSI/WSS Change of Control Event thefinal four quarterly payments provided for under Section 3.1(i)(2), totaling two-millionU.S. dollars ($2,000,000), will be accelerated and will become immediately due and payable byVSI/WSS to NetRatings as of the effective date of the VSI/WSS Change of Control Event (the“***Accelerated Initial Royalty***”). VSI/WSS shall pay the Accelerated Initial Royalty within fifteen(15) business days of the VSI/WSS Change of Control Event and shall continue making the quarterlypayments provided under Section 3.1(i)(2) until a total of seven-million U.S. dollars($7,000,000) in such quarterly payments (including the Accelerated Initial Royalty) has been paidby VSI/WSS to NetRatings.          (ii) Additional Royalty. As further consideration for the VSI/WSS License grantedunder this Agreement, and in addition to the other payments required pursuant to Section3.1 of this Agreement, VSI/WSS will pay to NetRatings an additional royalty, in the aggregateamount of two-million two-hundred fifty-thousand U.S. dollars ($2,250,000) (the “***AdditionalRoyalty***”), which Additional Royalty shall be required to be paid within fifteen (15) business daysof the occurrence of a VSI/WSS Change of Control Event, provided that such AdditionalRoyalty will only be payable in connection with the first VSI/WSS Change of Control Event to occurfollowing the Effective Date.          (iii) VSI/WSS Acquisition Royalties. As further consideration for the VSI/WSS Licensegranted under this Agreement, and in addition to the other payments required pursuant toSection 3.1 of this Agreement, in the event that, during the Term, VSI/WSS (or a whollyowned subsidiary formed in connection with such acquisition transaction) acquires, whether bymerger, asset purchase, consolidation, reorganization, or other similar transaction or series oftransactions, (a) all or substantially all the technology, customers, or other assets of an entity,(b) fifty percent (50%) or more of the combined voting power of an entity’s then outstandingsecurities or (c) all or substantially all of the Web Analytics assets of an entity (in any case,the entity or assets so acquired being referred to herein as the “***VSI/WSS Acquired Entity***” and thetransaction by which the entity or assets are so acquired being referred to herein as the “***VSI/WSSAcquisition***”), then, if VSI/WSS elects to have any of such VSI/WSS Acquired Entity’s products,services or technology considered Licensed VSI/WSS Products pursuant to Section 16.1 ofthis Agreement as of and from the date of any such transaction, then within thirty (30) businessdays following the closing date of any such transaction VSI/WSS will: (1) if the
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acquisition is of a VSI/WSS Acquired Entity listed in Schedule C to this Agreement,pay NetRatings an additional royalty of [ * ]percent [ * ] of the Revenues of such VSI/WSSAcquired Entity generated from Web Analytics products, services and technologies and recognized bysuch VSI/WSS Acquired Entity within the four most recently completed calendar quarters precedingthe closing of such acquisition; or (2) if the acquisition is of a VSI/WSS Acquired Entity notlisted in Schedule C, pay an additional royalty of [* ] percent [ * ] of the Revenues of such VSI/WSSAcquired Entity generated from Web Analytics products, services and technologies and recognized bysuch VSI/WSS Acquired Entity within the four most recently completed calendar quarters precedingthe closing of such acquisition (either of the foregoing royalties referred to as a “***VSI/WSSAcquisition Royalty***”). Upon payment of a VSI/WSS Acquisition Royalty by VSI/WSS (or if no VSI/WSSAcquisition Royalty need be paid by VSI/WSS as a result of the provisions of Section3.1(iv)), NetRatings shall immediately provide a release (consistent with Section 7.1)of VSI/WSS and the VSI/WSS Acquired Entity for all actions, claims, demands, causes of action,charges, judgments, damages and attorneys fees from the beginning of time up to and including thedate of any such transaction relating to the VSI/WSS Acquired Entity’s products, services, ortechnology; provided, however, that if the VSI/WSS Acquired Entity is an entity listed onSchedule C to this Agreement or is a party to litigation with NetRatings based on a claimof infringing any NetRatings Patent as of the date of the announcement of a transaction (any suchentity, a ***“Designated Acquired Entity”***), then, unless no Acquisition Release Royalty need be paidby VSI/WSS as a result of the provisions of Section 3.1(iv), the Acquisition ReleaseRoyalty set forth in Section 3.1(v) would be required to be paid to NetRatings in additionto the VSI/WSS Acquisition Royalty in order for VSI/WSS and such Designated Acquired Entity toreceive any such release.          (iv) For purposes of Section 3.1(iii), the “Revenues” of the products, services, ortechnology for any such VSI/WSS Acquired Entity (and any Designated Acquired Entity) shall becounted as defined in Section 1.9 of this Agreement, but shall be limited to Revenuesgenerated from Web Analytics products, services or technologies. Notwithstanding the foregoing andSection 3.1(v) below, VSI/WSS need not pay the VSI/WSS Acquisition Royalties nor theAcquisition Release Royalties for any transaction (and VSI/WSS and the VSI/WSS Acquired Entity(including any Designated Acquired Entity) shall be deemed licensed and released pursuant toSections 3.1(iii) and 3.1(v) as though such royalties had been paid), if and only if(1) VSI/WSS has paid (regardless of the type of consideration) less than [ * ] for such VSI/WSSAcquired Entity (including any Designated Acquired Entity) or the assets or securities thereof in asingle transaction or in any series of related transactions, (2) the VSI/WSS Acquired Entity(including any Designated Acquired Entity) already has a license from NetRatings under theNetRatings Patents which covers the acquired technology, customers or other assets of the VSI/WSSAcquired Entity (including any Designed Acquired Entity); provided, however, that anypayments due to NetRatings under a license agreement between NetRatings and the VSI/WSS AcquiredEntity (including any Designated Acquired Entity) will still be due and payable in accordance withthe terms of such license agreement, or (3) VSI/WSS’s royalty payment obligations have terminatedprior to the closing date of such transaction pursuant to *  This information has been omitted pursuant to a requestfor confidential treatment under 24b-2 of the Exchange Act of 1934 and has beenfiled separately with the Securities and Exchange Commission.
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Section 3.2. For the avoidance of doubt, an acquisition by VSI/WSS under Section3.1(iii) cannot also be deemed a VSI/WSS Change of Control Event.          (v) Acquisition Release Royalties for Designated Acquired Entities. In the eventthat, during the Term, VSI/WSS acquires, whether by merger, asset purchase, consolidation,reorganization, or other similar transaction or series of related transactions, (a) all orsubstantially all of the technology, customers, or other assets of a Designated Acquired Entity,(b) fifty percent (50%) or more of the combined voting power of a Designated Acquired Entity’s thenoutstanding securities, or (c) all or substantially all of the Web Analytics products, services ortechnology of a Designated Acquired Entity, then, at VSI/WSS’s election, in exchange for a release(consistent with Section 7.1) of VSI/WSS and the Designated Acquired Entity by NetRatingsfor all actions, claims, demands, causes of action, charges, judgments, damages and attorneys feesrelating to such Designated Acquired Entity’s products, services, or technology from the beginningof time up to and including the date of any such transaction, within thirty (30) business daysfollowing the closing date of any such transaction, VSI/WSS will pay NetRatings an additionalroyalty of [ * ] of the Revenues of such Designated Acquired Entity recognized by suchDesignated Acquired Entity within the four most recently completed calendar quarters preceding theclosing of such acquisition for all Web Analytics products, services, or technology sold, leased,licensed or otherwise distributed by such Designated Acquired Entity during such period (theforegoing royalties referred to as an ***“Acquisition Release Royalty”***). Upon payment of anAcquisition Release Royalty by VSI/WSS (or if no Acquisition Release Royalty need be paid byVSI/WSS as a result of the provisions of Section 3.1(iv)), NetRatings shall immediatelyprovide such release to VSI/WSS and such Designated Acquired Entity.     3.2 Termination of VSI/WSS Royalty Obligations. In the event that, and only in theevent that, every claim of every one of the NetRatings Patents is determined to be invalid orunenforceable by a final, unappealable decision of a court having competent jurisdiction andauthority to issue such a holding or by the Federal Circuit Court of Appeals, whichever is earlier,then the payment obligations set forth in Section 3.1 shall be terminated as of the date ofsuch decision, and from that date forward, no further Initial Royalty (including any AcceleratedInitial Royalty), Additional Royalty, VSI/WSS Acquisition Royalty or Acquisition Release Royaltypayments will be due. The termination of the payments pursuant to this Section 3.2 shallnot entitle VSI/WSS to a refund of any payments previously made.     3.3 No Contest. VSI/WSS agrees not to contest the validity or enforceability of anyof the NetRatings Patents or in any way assist any other entity in contesting the validity orenforceability of any of the NetRatings Patents, except that VSI/WSS may contest or assist incontesting the validity and enforceability of any NetRatings Patent asserted against VSI/WSS or anyAffiliate of VSI/WSS unless such Affiliate was a party to litigation with NetRatings with respectto the NetRatings Patents (or any license agreement related thereto) at the time of becoming anAffiliate of VSI/WSS. VSI/WSS further agrees that the termination of any of the * This information has been omitted pursuant to a requestfor confidential treatment under 24b-2 of the Exchange Act of 1934 and has beenfiled separately with the Securities and Exchange Commission.
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royalty payments pursuant to Section 3.2 above shall not be effective in the event ofa breach of VSI/WSS’s agreement not to so contest or assist in contesting the validity orenforceability of any of the NetRatings Patents. NetRatings agrees not to contest the validity orenforceability of any of the VSI/WSS Patents or in any way assist any other entity in contestingthe validity or enforceability of any of the VSI/WSS Patents, except that NetRatings may contest orassist in contesting the validity and enforceability of any VSI/WSS Patent asserted againstNetRatings or any Affiliate of NetRatings unless such Affiliate was a party to litigation withVSI/WSS with respect to the VSI/WSS Patents (or any license agreement related thereto) at the timeof becoming an Affiliate of NetRatings.     3.4 Method of Payment. Unless otherwise specified in writing by NetRatings, allpayments to be made by VSI/WSS under this Agreement shall be made by wire transfer of funds to theaccount of NetRatings as set forth in Exhibit C hereto.     3.5 Interest on Late Payments. Late payments shall incur interest from the date whichis one week following the date such payments were originally due at the prime interest rate, asreported by the Wall Street Journal, plus one percent (1%) per month from the date such paymentswere originally due hereunder or the highest rate allowable under applicable law (whichever isless).     3.6 Royalty Statements. Within thirty (30) business days of any VSI/WSS Acquisitionas to which payment is being made under Section 3.1(iii) of this Agreement, VSI/WSS shallprovide NetRatings with a written statement of the Revenues of the VSI/WSS Acquired Entityrecognized by such VSI/WSS Acquired Entity within the four most recently completed calendarquarters preceding the closing of the acquisition. Such royalty statements shall be certified asaccurate by a duly authorized officer of VSI/WSS. The receipt or acceptance by NetRatings of anyroyalty statement or payment shall not prevent NetRatings from subsequently challenging thevalidity or accuracy of such statement or payment.4. **RECORD INSPECTION AND AUDIT**     NetRatings’ Right To Inspect and Audit. Within ninety (90) days of the effective dateof an acquisition under Section 3.1(iii), NetRatings shall have the right, upon reasonablenotice to VSI/WSS, up to one (1) time with respect to any acquisition and to be conducted withinthree (3) months from the date of receipt of notice regarding such acquisition, to audit VSI/WSS’sbooks and records relevant to the Revenues of any VSI/WSS Acquired Entity for which VSI/WSSAcquisition Royalties may be due pursuant to Section 3.1(iii). Any audit described hereinwill be performed by an independent accounting firm that is mutually agreed upon by NetRatings andVSI/WSS, provided that such accounting firm agrees in writing to maintain the confidentiality ofsuch books and records. The cost of the independent accounting firm retained to conduct any auditas described herein shall be borne by NetRatings, unless a deficiency of ten percent (10%) or moreis found during the audit, in which case said cost of the independent accounting firm for saidaudit shall be borne by VSI/WSS.
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5. **REPRESENTATIONS AND WARRANTIES**     5.1 Representations and Warranties of the Parties. Each party represents and warrantsto the other that it has the right and power to enter into this Agreement. NetRatings representsand warrants that it and/or its wholly owned subsidiaries are the sole owner or joint owner of allright, title, and interest in and to the NetRatings Patents, and that NetRatings has the power togrant the VSI/WSS License granted herein. VSI/WSS represents and warrants that it and/or itswholly owned subsidiaries are the sole owner of all right, title, and interest in and to theVSI/WSS Patents, and that VSI/WSS has the power to grant the NetRatings License granted herein.Each party acknowledges that the representations and warranties made by the other party hereinconstitute a material part of the consideration inducing each party to enter into this Agreement.     5.2 Representations and Warranties of VSI/WSS.          (i) VSI/WSS acknowledges that the Licensed VSI/WSS Products commercially released as of theEffective Date are as identified in Schedule A attached hereto and that the LicensedVSI/WSS Products (including those identified in Schedule A) are and will be subject to theterms and conditions of this Agreement and not to the terms and conditions of the Virginia ActionAgreement.          (ii) VSI/WSS acknowledges that any VSI/WSS products, technology or services that aremanufactured, made or developed by or for VSI/WSS after the Effective Date that utilize,incorporate, or obtain technology from any products, technology or services that are subject to theVirginia Action Agreement (***“Merged VSI/WSS Products”***), are and will be subject to the terms andconditions of this Agreement and not to the terms and conditions of the Virginia Action Agreement.     5.3 Limitations on Warranties. Nothing in this Agreement shall be construed as:(i) representing the scope of any claims of the NetRatings Patents or the VSI/WSS Patents; or(ii) representing that the sale or use of products or services encompassed by one or more of theclaims set forth in the NetRatings Patents or the VSI/WSS Patents will be free of infringement ofany third party’s intellectual property rights.     5.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THISSECTION 5, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE ANDNON-INFRINGEMENT.6. **LIMITATIONS OF LIABILITY**     EXCEPT WITH RESPECT TO CLAIMS RELATED TO EACH PARTY’S NON-DISCLOSURE OBLIGATIONS UNDERSECTION 11, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT,INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS, EXEMPLARY OR SPECIAL DAMAGES,HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT. IN ALL EVENTS,EACH PARTY’S
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TOTAL LIABILITY IN THE AGGREGATE UNDER THIS AGREEMENT (EXCEPT WITH RESPECT TO VSI/WSS’SROYALTY OBLIGATIONS AND WITH RESPECT TO CLAIMS RELATED TO EACH PARTY’S NON-DISCLOSURE OBLIGATIONSUNDER SECTION 11) IS LIMITED TO AND SHALL NOT EXCEED FIVE HUNDRED THOUSAND U.S. DOLLARS($500,000), PLUS ANY REASONABLE ATTORNEYS’ FEES AND INTEREST WHICH MAY BE DUE UNDER THIS AGREEMENTOR UNDER LAW. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS SECTION 6 SHALL BE CONSTRUED TOLIMIT THE LIABILITY OF VSI/WSS RESULTING FROM THE MANUFACTURE, SALE OR USE OF ANY PRODUCTS ORSERVICES BY VSI/WSS OUTSIDE OF THE SCOPE OF THE VSI/WSS LICENSE GRANTED HEREUNDER.7. **RELEASES**     7.1 Release of VSI/WSS. NetRatings and its subsidiaries, officers, directors andemployees hereby irrevocably release and discharge VSI/WSS and its subsidiaries, officers,directors, stockholders and employees from any actions, demands, claims, causes of action, charges,judgments, damages and attorneys fees, including all claims asserted in the Current Actions, or inconnection with the NetRatings Patents, whether known or unknown, suspected or unsuspected, in lawor in equity, arising from or in connection with the manufacture (including practicing methods,processes and procedures), use, lease, license, sale, offer for sale, marketing, distribution,exportation or importation of the Licensed VSI/WSS Products from the beginning of time up to andincluding the Effective Date of this Agreement. Nothing in this Section 7.1 is intended byNetRatings to release VSI/WSS from any of its obligations under this Agreement or from anyliability of VSI/WSS or any other person for actions occurring after the Effective Date. For theavoidance of doubt, nothing in this Section 7.1 is intended to release VSTLLC from any ofits obligations under the Virginia Action Agreement, whether for actions occurring before or afterthe Effective Date of this Agreement.     7.2 Release of NetRatings. VSI/WSS and its subsidiaries, officers, directors, andemployees hereby irrevocably release and discharge NetRatings and its subsidiaries, officers,directors, stockholders and employees from any actions, demands, claims, causes of action, charges,judgments, damages and attorneys fees, including all claims asserted in the Current Actions, or inconnection with the VSI/WSS Patents, whether known or unknown, suspected or unsuspected, in law orin equity, arising from or in connection with the manufacture (including practicing methods,processes and procedures), use, lease, license, sale, offer for sale, marketing, distribution,exportation or importation of the NetRatings Licensed Products from the beginning of time up to andincluding the Effective Date of this Agreement. Nothing in this Section 7.2 is intended byVSI/WSS to release NetRatings from any of its obligations under this Agreement or from anyliability of NetRatings or any other person for actions occurring after the Effective Date. Forthe avoidance of doubt, nothing in this Section 7.2 is intended to release NetRatings fromany of its obligations under the Virginia Action Agreement, whether for actions occurring before orafter the Effective Date of this Agreement.8. **COVENANTS NOT TO SUE**     8.1 NetRatings Covenant. Subject to Section 8.3, NetRatings hereby covenantsand agrees that it will not bring suit for infringement of the NetRatings Additional Patentsagainst
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VSI/WSS. The provisions of this paragraph shall constitute a waiver, release and/or dischargefrom any infringement occurring or any damages for patent infringement accruing either prior to orafter the Effective Date with respect to the NetRatings Additional Patents. NetRatings agrees thatit shall not grant to any other party, by patent assignment or otherwise, the right to enforce anyof the NetRatings Additional Patents against VSI/WSS or against any permitted transferee of thisCovenant, and that any transfer of the NetRatings Additional Patents to another party, by patentassignment or otherwise, shall be made subject to the covenant, waiver, release and/or dischargeset forth in this Section 8.1.     8.2 VSI/WSS Covenant. Subject to Section 8.4, VSI/WSS hereby covenants andagrees that it will not bring suit for infringement of the VSI/WSS Additional Patents againstNetRatings. The provisions of this paragraph shall constitute a waiver, release and/or dischargefrom any infringement occurring or any damages for patent infringement accruing either prior to orafter the Effective Date with respect to the VSI/WSS Additional Patents. VSI/WSS agrees that itshall not grant to any other party, by patent assignment or otherwise, the right to enforce any ofthe VSI/WSS Additional Patents against NetRatings or against any permitted transferee of thisCovenant, and that any transfer of the VSI/WSS Additional Patents to another party, by patentassignment or otherwise, shall be made subject to the covenant, waiver, release and/or dischargeset forth in this Section 8.2.     8.3 Transfer of Covenants Upon VSI/WSS Change of Control. If a VSI/WSS Change ofControl Event occurs, and VSI/WSS elects to assign this Agreement to a VSI/WSS Purchaser, then thecovenant granted to VSI/WSS pursuant to Section 8.1 shall be transferred to the VSI/WSSPurchaser, but such covenant shall only extend thereafter to VSI/WSS’s products, services, andtechnology commercially released as of the date of such VSI/WSS Change of Control Event and any andall VSI/WSS Original and Future Versions (as defined in Section 15.1(i) of this Agreement)of such products, services and technology. The covenant granted to NetRatings in Section8.2 shall remain in full force and effect following a VSI/WSS Change of Control Event.     8.4 Transfer of Covenants Upon NetRatings Change of Control. If a NetRatings Changeof Control Event occurs, and NetRatings elects to assign this Agreement to the NetRatingsPurchaser, then the covenant granted to NetRatings pursuant to Section 8.2 shall betransferred to the NetRatings Purchaser, but such covenant shall only extend thereafter toNetRatings’ products, services, and technology commercially released as of the date of suchNetRatings Change of Control Event and any and all NetRatings Original and Future Versions (asdefined in Section 15.3 of this Agreement) of such products, services and technology. Thecovenant granted to VSI/WSS in Section 8.1 shall remain in full force and effect followinga NetRatings Change of Control Event.9. **DISMISSAL OF THE CURRENT ACTIONS**     Promptly upon execution of this Agreement by the Parties and in any event within five (5)business days thereof, the Parties shall cause their respective legal counsel to execute aStipulation of Dismissal With Prejudice under Rule 41 of the Federal Rules of Civil Procedure foreach of the New York Action and the California Action, dismissing each such Action with
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prejudice. Each of NetRatings and VSI/WSS will bear its own litigation costs and fees. TheStipulations of Dismissal will be in the form attached hereto as Exhibits A and B.10. **TERMINATION**     If any Party breaches any material term or condition of this Agreement and fails to cure suchbreach within sixty (60) days after receiving written notice of the breach (the ***“Cure Period”***), thenon-breaching Party may terminate this Agreement on written notice at any time following the end ofthe Cure Period. VSI/WSS’s failure to timely make a payment required under Section 3.1(i) or3.1(ii) of this Agreement shall constitute a material breach by VSI/WSS of the Agreement,except that VSI/WSS shall have thirty (30) days to cure such breach following receipt of writtennotice thereof from NetRatings. VSI/WSS’s failure to timely make a payment required underSections 3.1(iii) or 3.1(v) of this Agreement shall constitute a material breach by VSI/WSSof the Agreement, except that VSI/WSS shall have sixty (60) days to cure such breach followingreceipt of written notice thereof from NetRatings. If VSI/WSS commits a material breach of theVSI/WSS License granted in Section 2.1 or fails to make any payment required in Section3.1 of this Agreement and fails to cure such breach within the applicable cure period, or ifVSI/WSS fails to cure a material breach of Section 2.3 within the Cure Period, then theVSI/WSS License will be terminated and the following payments set forth in Section 3.1 willbe accelerated and deemed immediately due and payable as of the date of such termination: (1) theInitial Royalty; (2) the Additional Royalty; and (3) the VSI/WSS Acquisition Royalties, but only tothe extent that the triggering conditions set forth in Section 3.1(iii) have occurred priorto said breach.11. **CONFIDENTIALITY**     11.1 Definition of Confidential Information. ***“Confidential Information”***shall meanany confidential technical data, trade secret, know-how or other confidential information disclosedby any Party hereunder in writing, orally, or by drawing or other form and which shall be marked bythe disclosing party as “Confidential” or “Proprietary.” If such information is disclosed orally,or through demonstration, in order to be deemed Confidential Information, it must be specificallydesignated as being of a confidential nature at the time of disclosure and reduced in writing anddelivered to the receiving party within thirty (30) calendar days of such disclosure.     11.2 Exceptions To Confidentiality. Notwithstanding the foregoing, ConfidentialInformation shall not include information which: (i) is known to the receiving party at the timeof disclosure or becomes known to the receiving party without breach of this Agreement or violationof a court order; (ii) is or becomes publicly known through no wrongful act of the receiving partyor any subsidiary of the receiving party; (iii) is rightfully received from a third party withoutrestriction on disclosure; (iv) is independently developed by the receiving party or any of itssubsidiaries without use of the Confidential Information of the disclosing party; or (v) isapproved for release upon a prior written consent of the disclosing party.     11.3 Confidentiality Obligations. The receiving party agrees that it will notdisclose any Confidential Information to any third party and will not use Confidential Informationof the disclosing party for any purpose other than for the performance of the rights andobligations
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hereunder during the Term of this Agreement and for a period of [ * ] thereafter,without the prior written consent of the disclosing party. The receiving party further agrees thatConfidential Information shall remain the sole property of the disclosing party and that it willtake all reasonable precautions to prevent any unauthorized disclosure of Confidential Informationby its employees and other representatives. No license shall be granted by the disclosing party tothe receiving party with respect to Confidential Information disclosed hereunder unless otherwiseexpressly provided herein.     11.4 Return of Confidential Information. Upon the request of the disclosing party,the receiving party will promptly return all Confidential Information furnished hereunder and allcopies thereof.     11.5 Disclosure. Neither party shall disclose this Agreement or any of the termshereof to any third party without the prior written consent of the other party. This Agreement andits terms shall be held in strict confidence by each party and shall constitute ConfidentialInformation. [ * ] Further, based upon consultation with inside or outside legal counsel, eitherparty may disclose information concerning this Agreement as required by the rules, orders,regulations, discovery requirements, subpoenas or directives of a court, government or governmentalagency (including without limitation the SEC). In the event either party determines that thisAgreement, or portions thereof, is required to be filed with the SEC, it will seek confidentialtreatment of the Agreement or such portions thereof as and to the extent permitted by the rules,regulations and published guidance of the SEC. Notwithstanding anything to the contrary, theParties may publicly disclose (including to customers or users of the Licensed VSI/WSS Products orthe Licensed NetRatings Products, and to VSI/WSS Providers or NetRatings Providers) that theActions have been settled and that use of the Licensed VSI/WSS Products and the NetRatingsProducts, in accordance with the terms of this Agreement, is a licensed use. On or shortly afterthe Effective Date, VSI/WSS and NetRatings may each issue a single respective press releaseconcerning the Agreement, which press releases will be approved of by the parties prior to releaseof same, which approval shall not be unreasonably withheld. The press release of VSI/WSS will besubstantially in the form shown in Exhibit D attached hereto, which NetRatings acknowledgeshas been approved. Except as otherwise required by applicable law, no other public announcementsor press releases may be made by either party concerning the Agreement without the prior approvalof the other party, which approval shall not be unreasonably withheld. * This information has been omitted pursuant to a requestfor confidential treatment under 24b-2 of the Exchange Act of 1934 and has beenfiled separately with the Securities and Exchange Commission.
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12. **NOTICES**     Any notice required to be given under this Agreement shall be in writing and deliveredpersonally to the other Party at the above-stated address or mailed by certified, registered orexpress mail, return receipt requested, or by Federal Express, attention CEO or General Counsel.In the case of NetRatings, a copy of any such notice shall be sent by Federal Express to Seth H.Ostrow, Esq., Dreier LLP, 499 Park Avenue, New York, NY 10022. In the case of VSI/WSS, a copy ofany such notice shall be sent by Federal Express to the attention of James S. Blank, Esq., Latham &Watkins LLP, 885 Third Avenue, Suite 1000, New York, NY 10022.13 **CHOICE OF LAW/JURISDICTION**     This Agreement shall be governed in accordance with the laws of the State of New York. Alldisputes under this Agreement shall be resolved by litigation in the appropriate federal or statecourts located in the State of New York, County of New York, and the Parties consent to theexclusive jurisdiction of such courts for all such disputes, agree to accept service of process bymail for all such disputes, and hereby waive any jurisdictional or venue defenses otherwiseavailable to them in connection with such courts for all such disputes.14. **ATTORNEYS’ FEES**     In any litigation arising out of this Agreement, the prevailing party shall be entitled topayment of its reasonable attorneys’ fees and costs by the other party.15. **CHANGE OF CONTROL EVENT AND ASSIGNABILITY**     15.1VSI/WSS Change of Control Event. In the event of any VSI/WSS Change of ControlEvent, the VSI/WSS Additional Royalty required pursuant to Section 3.1(ii) and theAccelerated Initial Royalty required pursuant to Section 3.1(i) shall be immediately dueand payable and shall be paid to NetRatings within fifteen (15) business days of the effective dateof the VSI/WSS Change of Control Event. In addition to the foregoing, in the event of a VSI/WSSChange of Control Event, provided that all royalty payments due prior to the effective date of theVSI/WSS Change of Control Event have been paid in accordance with Section 3 and thisSection 15, and provided that VSI/WSS is in all material respects in compliance with theAgreement, then, this Agreement, including the VSI/WSS License, shall continue in full force andeffect, and, at the sole discretion of VSI/WSS, the Agreement, including the VSI/WSS License, maybe assigned by VSI/WSS to the VSI/WSS Purchaser, subject in each case (whether or not so assigned)to the following limitations:          (i) the VSI/WSS License and any sublicenses granted under this Agreement shall be limited,subject to the restrictions in Section 15.1(ii), to (1) the Licensed VSI/WSS Productscommercially released as of the effective date of the VSI/WSS Change of Control Event (***“VSI/WSSOriginal Versions”***); (2) the VSI/WSS products, or elements thereof, which VSI/WSS can show wereunder development as of the effective date of the VSI/WSS Change of Control Event, if such VSI/WSSproducts are released as standard products within twelve (12) months of the effective date of theVSI/WSS Change of Control Event; (3) future versions of the VSI/WSS Original Versions which containpatches to, bug fixes of, enhancements to, modifications of, improvements to, or updates orupgrades of the VSI/WSS Original Versions,
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except for any new feature or functionality added to VSI/WSS Original Versions which newfeature or functionality in and of itself infringes a NetRatings Patent that did not already coverthe VSI/WSS Original Versions; and (4) future versions of the VSI/WSS Original Versions whichsupersede any Licensed VSI/WSS Product or a Section 15.1(i)(2) or Section 15.1(i)(3)product (e.g., new x.0 release), as evidenced by the cessation of the distribution or use of theVSI/WSS Original Version of such Licensed VSI/WSS Product or Section 15.1(i)(2) or Section15.1(i)(3) product, or the use thereof to provide services to VSI/WSS Customers, within three(3) months of the commercial release of the future version (collectively, ***“VSI/WSS Original andFuture Versions”***);          (ii) following any VSI/WSS Change of Control Event, the VSI/WSS License and any sublicensesgranted under this Agreement shall not permit combining, merging, bundling or incorporating theLicensed VSI/WSS Products, or any portion thereof, with any of the VSI/WSS Purchaser’s WebAnalytics products, services or technology not otherwise licensed pursuant to a separate NetRatingspatent license agreement between the VSI/WSS Purchaser and NetRatings, except if the VSI/WSSPurchaser’s unlicensed Web Analytics products, services or technology represent less than fortypercent (40%) of the source code of the combined, merged or bundled Web Analytics product, serviceor technology (for the avoidance of doubt, if VSI/WSS or the VSI/WSS Purchaser, as applicable, iscombining, merging, bundling or incorporating a product, service or technology other than a WebAnalytics product, service or technology with a Licensed VSI/WSS Product, then for purposes of thiscalculation the Licensed VSI/WSS Product shall constitute 100% of the source code of the combined,merged or bundled Web Analytics product, service or technology). Except as set forth in theimmediately preceding sentence, in the event that any unlicensed Web Analytics products, servicesor technology developed, created or offered by the VSI/WSS Purchaser (other than the products,services or technology which the VSI/WSS Purchaser acquired from VSI/WSS as a result of the VSI/WSSChange of Control Event), or any portion of such unlicensed Web Analytics products, services ortechnology, is bundled with, combined with, merged with or incorporated into any of the LicensedVSI/WSS Products (***“Altered VSI/WSS Products”***), then any such Altered VSI/WSS Products will not bedeemed to be Licensed VSI/WSS Products under this Agreement and the VSI/WSS License and anysublicenses granted hereunder will not apply to such Altered VSI/WSS Products;          (iii) nothing in this Section 15.1 shall preclude VSI/WSS or a VSI/WSS Purchaser fromcombining, merging, bundling or incorporating any unlicensed product, service or technology into orwith a Licensed VSI/WSS Product (or any portion thereof) if such unlicensed product, service ortechnology does not, by itself, infringe any claim of any NetRatings Patent, and the licensegranted in this Agreement shall continue to extend to such Licensed VSI/WSS Product notwithstandingany such combining, merging, bundling or incorporating; and          (iv) VSI/WSS shall provide written notice of its intent to assign this Agreement to a VSI/WSSPurchaser upon or following a VSI/WSS Change of Control Event prior to or concurrently with theeffective date of the assignment.     15.2VSI/WSS Assignment. Other than as specifically provided in Section 15.1 or15.2 herein, VSI/WSS shall not assign (in whole or in part) this Agreement or its rights and
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obligations hereunder, including without limitation the VSI/WSS License, to any third party(other than to an Affiliate) without the prior express written approval of NetRatings; providedthat VSI/WSS may assign this Agreement to an Affiliate without any such approval. Any assignmentof this Agreement, except as permitted under Section 15.1 or 15.2, shall constitute amaterial breach of this Agreement. The provisions of the Agreement shall be binding upon and shallinure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns,but only to the extent permitted under this Section 15. For avoidance of doubt, inconnection with each successive assignment permitted under this Section 15, the assignee ofthis Agreement, including without limitation the VSI/WSS License, shall enjoy all the rights andbenefits of, and shall be subject to all of the obligations of, VSI/WSS under this Agreement, andall references to VSI/WSS in this Agreement shall be deemed to refer to such assignee from andafter each such assignment.     15.3 NetRatings Assignment. This Agreement and the NetRatings License granted toNetRatings pursuant to Section 2.2 of this Agreement shall be assignable and transferableto any acquirer of NetRatings or to The Nielsen Company or any of its subsidiaries. If NetRatingselects to so assign or transfer this Agreement, then the NetRatings License shall be limited to:(1) the Licensed NetRatings Products commercially released as of the effective date of theassignment or transfer (***“NetRatings Original Versions”***); (2) the NetRatings products, or elementsthereof, which NetRatings can show were under development as of the effective date of theassignment or transfer, if such NetRatings products are released as standard products within twelve(12) months of the effective date of the assignment or transfer; (3) future versions of theNetRatings Original Versions which contain patches to, bug fixes of, enhancements to, modificationsof, improvements to, or updates or upgrades of the NetRatings Original Versions, except for any newfeature or functionality added to NetRatings Original Versions which new feature or functionalityin and of itself infringes a VSI/WSS Patent that did not already cover the NetRatings OriginalVersions; and (4) future versions of the NetRatings Original Versions which completely replace anyLicensed NetRatings Product or Section 15.3(2) or Section 15.3(3) product (e.g., new x.0release), as evidenced by the cessation of the distribution or use of the Licensed NetRatingsProduct or Section 15.3(2) or Section 15.3(3) product or the use thereof to provideservices to NetRatings Customers within three (3) months of the commercial release of the futureversion (collectively, ***“NetRatings Original and FutureVersions”***).16. **VSI/WSS ACQUISITIONS**     16.1 Licensed VSI/WSS Products. In the event VSI/WSS acquires a VSI/WSS AcquiredEntity or the products, services, technology, customers, or other assets thereof pursuant toSection 3.1(iii), then the VSI/WSS Acquired Entity’s Web Analytics products, services, andtechnology will be considered Licensed VSI/WSS Products under this Agreement as of the effectivedate of the acquisition if and only if, within thirty (30) business days after the effective dateof such acquisition, VSI/WSS pays NetRatings the VSI/WSS Acquisition Royalties, if any,contemplated by Section 3.1(iii) and provides the royalty statement regarding such VSI/WSSAcquired Entity required under Section 3.6. If VSI/WSS does not timely pay NetRatings therequired VSI/WSS Acquisition Royalties, if any, and timely provide the Section 3.6 royaltystatement, then the VSI/WSS License granted in this Agreement shall not extend to any products,services, or technology developed, created or offered by the VSI/WSS Acquired Entity, including tothe extent any products, services or technology developed, created or offered by the
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VSI/WSS Acquired Entity are incorporated into any of the Licensed VSI/WSS Products, until suchtime as such required VSI/WSS Acquisition Royalties, if any, are paid, and such Section 3.6royalty statements are provided, to NetRatings. Nothing in this Section 16 or otherwiseshall preclude VSI/WSS from combining, merging, bundling or incorporating any unlicensed product,service or technology into or with a Licensed VSI/WSS Product (or any portion thereof) if suchunlicensed product, service or technology does not, by itself, infringe any claim of any NetRatingsPatent, and the license granted in this Agreement shall continue to extend to such Licensed VSI/WSSProduct notwithstanding any such combining, merging, bundling or incorporating.     16.2 For the avoidance of doubt, in the event VSI/WSS acquires a VSI/WSS Acquired Entity or theproducts, services, technology, customers or other assets thereof pursuant to Section3.1(iii), and VSI/WSS is not obligated to pay the VSI/WSS Acquisition Royalties for one or moreof the reasons set forth in Section 3.1(iii) or (iv), then the VSI/WSS Acquired Entity’sWeb Analytics products, services or technology will be considered Licensed VSI/WSS Products underthis Agreement as of the effective date of the acquisition.     16.3 VSI/WSS’s election not to obtain a license and/or release for an acquisition pursuant toSection 3.1(iii) or (v) by paying the VSI/WSS Acquisition Royalty and/or AcquisitionRelease Royalty and subsequent use or sale of unlicensed products shall not be deemed a breach ofthis Agreement.17. **WAIVER**     No waiver by either Party of any default shall be deemed as a waiver of any prior orsubsequent default of the same or other provisions of this Agreement.18. **SEVERABILITY**     If any term, clause or provision hereof is held invalid or unenforceable by a court ofcompetent jurisdiction, such invalidity shall not affect the validity or operation of any otherterm, clause or provision and such invalid term, clause or provision shall be deemed to be severedfrom the Agreement.19. **COUNTERPARTS**     This Agreement may be executed by the Parties in counterparts, which, when assembled, shall beconsidered a fully executed original of this Agreement.20. **SURVIVAL**     The following provisions shall survive the termination or expiration of this Agreement:Sections 6, 7, 8, 9, 10 and 11.
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21. **NO ADMISSION**     This Agreement represents a resolution of disputed issues and claims between the Parties.Nothing contained herein is, or is to be construed as, an admission or evidence of liability on thepart of either Party.22. **ENTIRE AGREEMENT; AMENDMENT**     This Agreement constitutes the entire understanding of the Parties, and revokes and supersedesall prior agreements between the Parties and is intended as a final expression of their agreement.For the avoidance of doubt, the Virginia Action Agreement shall remain in full force and effect;provided, however, that in the event of any conflict between this Agreement and the Virginia ActionAgreement, this Agreement shall control. Each of VSI/WSS and NetRatings acknowledges and agreesthat such party is not currently aware of any such conflict. Notwithstanding and withoutlimitation of the foregoing, nothing in this Agreement is intended nor shall be deemed to void thepayment obligations of VSTLLC to NetRatings under Section 3.1(i) and 3.1(ii) of theVirginia Action Agreement. All negotiations and representations made prior to the execution ofthis Agreement shall be deemed to have been integrated into the terms and conditions of thisAgreement. This Agreement shall not be modified or amended except in writing signed by the Partieshereto and specifically referring to this Agreement.23. **VSI/WSS FAVORABLE TREATMENT**     In addition to, and without limitation of, other consideration exchanged in this Agreement,NetRatings has entered into this Agreement on the terms and conditions set forth herein inconsideration of the representations and warranties made by VSI/WSS to NetRatings, including withrespect to all financial information provided by VSI/WSS to NetRatings concerning VSI/WSS’financial condition, the NetRatings License, resolution of the California Action and otherstrategic and business reasons.[SIGNATURE PAGE FOLLOWS]
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     IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each causedthis Agreement to be executed by their respective duly authorized representative identified below.         NETRATINGS, INC.   VISUAL SCIENCES, INC.      (f/k/a WEBSIDESTORY, INC.)         BY: /s/ Peter Piazza   BY: /s/ Dru Greenhalgh          PRINT NAME: Peter Piazza   PRINT NAME: Dru Greenhalgh         TITLE: VP, Legal   TITLE: General Counsel,Corporate SecretaryNETRATINGS AND VISUAL SCIENCES, INC. (F/K/A WEBSIDESTORY)