SETTLEMENT AND PATENT LICENSE AGREEMENT1

Exhibit 10.9

CONFIDENTIAL

SETTLEMENT AND
PATENT LICENSE AGREEMENT ¹

     THIS AGREEMENT (the “ Agreement ”) is made as of this 28 ^th day of February, 2006 (the “ Effective Date ”) by and between NetRatings, Inc., a Delaware corporation, with offices at 120 West 45 ^th Street, New York, New York 10036 (“ NetRatings ”), and Omniture, Inc., a Delaware corporation, with offices at 550 East Timpanogos Circle, Orem, Utah 84097 (“ Omniture ” or “ Licensee ”) (NetRatings and Licensee collectively, the “ Parties ”).

WITNESSETH:

      WHEREAS , NetRatings is the sole and exclusive owner or joint owner of certain patents and patent applications, as farther identified herein;

      WHEREAS , the Parties are presently engaged in litigation in the United States District Court, District of Delaware, captioned NetRatings, Inc. v. Omniture, Inc. , Civil Action No. 05-313-GMS (the “ Action ”);

      WHEREAS , the Parties wish to resolve and settle the Action and all disputes that are the subject matter of the Action; and

      WHEREAS , as part of the settlement of the Action, NetRatings wishes to grant to Licensee, and Licensee wishes to receive, a license under the aforementioned patents of NetRatings pursuant to the terms and subject to the conditions of this Agreement.

      NOW, THEREFORE , in consideration of the mutual promises and covenants herein contained, the Parties agree as follows:

     1.  DEFINITIONS

     The capitalized terms in this Agreement which are not defined in the text of the Agreement shall have the meanings set forth in this Section 1 . In addition, the existence or scope of any defined term in this Agreement shall not constitute or be deemed to be the belief on the part of NetRatings that the NetRatings Patents or any claims therein are in any way limited in scope or to application or enforcement in any particular field(s) of use.

          1.1 “ Change of Control Event ” means the closing of a sale to or acquisition by a person or entity (“ Purchaser ”), whether by merger, consolidation, reorganization or other similar transaction or series of related transactions, of (i) all or substantially all of the assets of the Licensee;

or (ii) fifty percent (50%) or more of the combined voting power of Licensee’s then outstanding securities. For the avoidance of doubt, a Change of Control Event shall not include a public or private offering of Omniture securities, unless as a result of such offering a person or entity acquires fifty percent (50%) or more of the combined voting power of Omniture’s securities outstanding immediately following such offering.

          1.2 “ Licensee Customer ” shall mean any person or entity who, with express authorization from Licensee or a Licensee Provider, purchases, leases, licenses, subscribes to or uses any Licensed Product only for such person’s or entity’s own use internally or in monitoring or tracking the use or access of computer resources delivered by such person or entity over a network, and not for the purpose of providing the Licensed Product or any service depending thereon to a third party.

          1.3 “ Licensee Provider ” shall mean any person or entity who, with express authorization from and on behalf of Licensee (including without limitation OEM’s, resellers and distributors), manufactures or develops any Licensed Product for Licensee, or offers for sale, sells, imports, exports, resells, licenses, combines or distributes to Licensee Customers any Licensed Product whether on a standalone basis or in combination with its own products or services, including, but not limited to, for the purpose of providing the Licensed Product or any service depending thereon to a third party.

          1.4 “ Licensed Products ” shall mean any products, technology or services (whether in whole or in part, or any portion thereof, and whether pursuant to sale, license, subscription service or otherwise) that are manufactured, made or developed by or for Omniture, or that are used, licensed, marketed, offered for sale, distributed, exported, imported or sold by Omniture, directly or indirectly, except as provided in Section 2.2 . Licensed Products commercially released as of the Effective Date are listed on Schedule B hereto. Except to the extent permitted by Section 15.1(ii) . Licensed Products shall not include any product, technology or service developed by and for an entity other than Omniture and which are sold by third parties.

          1.5 “ Licensee’s Revenue ” shall mean Licensee’s gross consolidated revenues from the manufacture, development, design, sale, offer for sale, resale, import, export, integration, hosting, leasing, licensing or distributing of products, technology and/or services, including but not limited to revenue received from all Licensee Customers and Licensee Providers, less, sales, VAT, excise, or similar taxes, discounts and allowances actually shown on an applicable invoice. No costs shall be deducted from Licensee’s Revenue. Licensee’s Revenue shall be deemed to have occurred when such revenue is recognized by Licensee in accordance with generally accepted accounting principles consistently applied.

          1.6 “ NetRatings Patents ” shall mean all United States and foreign issued patents and pending patent applications owned or controlled by NetRatings as of the Effective Date, including the patents and patent applications identified on Schedule A attached hereto, which schedule NetRatings agrees to supplement within thirty (30) days of the Effective Date. In addition, the NetRatings Patents shall include any foreign counterparts, and United States or foreign patents issuing as a divisional, continuation, continuation-in-part, reissue, reexamination, renewal or extension of any of the foregoing patents and any pending patent applications, as well as any and all

other present or future United States or foreign patents or patent applications that claim priority to any of the above.

          1.7 “ Omniture Patents ” shall mean all United States and foreign issued patents, if any, and pending patent applications owned or controlled by Omniture as of the Effective Date, including the patents and patent applications identified on Schedule C attached hereto, which schedule Omniture agrees to supplement within thirty (30) days of the Effective Date, and any United States 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.

          1.8 “ Term ” shall mean the period commencing as of the Effective Date and continuing to and including the date on which the last remaining NetRatings Patent listed in Schedule A (as will be supplemented by NetRatings within thirty (30) days pursuant to Section 1.6 , or as may be supplemented by NetRatings thereafter upon a showing that a patent or application was inadvertently omitted from Schedule A ) expires, unless earlier terminated in accordance with Section 10 .

          1.9 “ Web Analytics ” shall mean [ * ].

     2.  LICENSE

          2.1 Grant of License to Licensee . Subject to Section 2.2 , NetRatings hereby grants to Licensee, 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 in Section 15 ), royalty-bearing, world-wide license under the NetRatings Patents during the Term to make (including the right to practice methods, processes and procedures), have made, use, license, lease, sell, offer for sale, market, distribute, export and import the Licensed Products (the “ License ”).

          2.2 Exclusions . Notwithstanding anything in this Agreement to the contrary, Licensee expressly acknowledges and agrees that the License granted under this Agreement does not permit the Licensee (or therefore any Licensee Customers or Licensee Providers) the right to:

               (i) [ * ] For purposes of this Section 2.2(i) , an “affiliate” of a “person or entity” means any other person or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with such “person or entity.”

               (ii) [ * ]

          2.3 Reservation of Rights . Any and all rights not expressly granted to Licensee in this Agreement with respect to the NetRatings Patents, including, without limitation, the rights reserved under Section 2.2 to practice the NetRatings Patents and the right to enforce the NetRatings Patents against third parties and collect royalties and/or damages in connection therewith, are hereby reserved and retained exclusively by NetRatings.

          2.4 Sublicense Rights . Licensee may grant to Licensee Customers a limited, non-exclusive, non-transferable, written sublicense under the License solely for the purpose of allowing such entities to purchase or use the Licensed Products in accordance with Section 1.2 . In

addition, Licensee may grant to Licensee Providers a limited, nonexclusive, non-transferable, written sublicense under the License solely for the purpose of allowing such entities to manufacture or develop any Licensed Product for Licensee, or offer for sale, sell, import, export, resell, license, combine or distribute to Licensee Customers any Licensed Product whether on a standalone basis or in combination with its own products or services, including, but not limited to, for the purpose of providing the Licensed Product or any service depending thereon to a third party. Such sublicenses shall in no event apply to products, services or technology of a Licensee Customer or Licensee Provider which, without the Licensed Products, infringes any independent claim of any NetRatings Patents. Other than as expressly provided by this Section 2.4 , no other sublicenses of any kind may be granted under this Agreement, and any such sublicenses shall be null and void. Any sublicenses granted hereunder are only valid and in effect when and if the License is valid and in effect.

          2.5 Markings and Samples . Licensee shall fully comply with the patent marking provisions of the United States or other applicable patent laws. In furtherance of the foregoing, Licensee will clearly label the Licensed Products with identifying numbers of any issued NetRatings Patents, specifying that the Licensed Products are licensed under such NetRatings Patents. As may be requested from time to time, but in no event more than once each calendar year of the Term, Licensee shall submit to NetRatings five (5) samples of each of the Licensed Products or such other evidence, including screen captures, as will be reasonably sufficient to show that the marking requirements of this Section 2.6 are being fulfilled. Neither the marking of any Licensed Product pursuant to this Agreement or this Section 2 shall be deemed to constitute an admission by Licensee that the Licensed Products are covered by the NetRatings Patents.

     3.  PAYMENT OF ROYALTIES

          3.1 Royalty Fees .

               (i)  Initial Royalty . As partial consideration for the settlement of the Action and the License granted under this Agreement, and regardless of whether any additional payments are paid under Section 3.1 of this Agreement, Licensee shall pay ten-million U.S. dollars ($10,000,000) to NetRatings (the “ Initial Royalty ”) as follows: (1) within three (3) business days from the date on which Licensee executes this Agreement and receives an original of this Agreement, including all Exhibits (including the stipulations required under Section 9 ), that has been fully executed by a duly authorized representative of NetRatings, Licensee shall pay one-million five-hundred thousand U.S. dollars ($1,500,000) to NetRatings; (2) no later than June 15, 2006, Licensee shall pay one-million five-hundred thousand U.S. dollars ($1,500,000) to NetRatings; (3) no later than September 15, 2006, Licensee shall pay one-million five-hundred thousand U.S. dollars ($1,500,000) to NetRatings; (4) on or before December 15,2006, Licensee shall pay one-million five-hundred thousand U.S. dollars ($1,500,000) to NetRatings; (5) on or before March 15, 2007, Licensee shall pay one-million U.S. dollars ($1,000,000) to NetRatings; (6) on or before June 15, 2007, Licensee shall pay one-million U.S. dollars ($1,000,000) to NetRatings; (7) on or before September 15, 2007, Licensee shall pay one-million U.S. dollars ($1,000,000) to NetRatings; and (8) on or before December 15, 2007, Licensee shall pay one-million U.S. dollars ($1,000,000) to NetRatings.

               (ii)  Additional Royalty . As further consideration for the License granted under this Agreement, and in addition to the other payments required pursuant to Section 3.1 of this Agreement, Licensee will pay NetRatings an additional royalty, in the aggregate not to exceed four-million U.S. dollars ($4,000,000) (the “ Additional Royalty ”), which Additional Royalty shall be required to be paid only if and when: (1) Licensee completes an initial public offering of its securities, in which case Licensee shall pay NetRatings four-million U.S. dollars ($4,000,000) (minus any other payments previously made under this Section 3.1(ii) ) within five (5) business days of the closing of the initial public offering; (2) a Change of Control Event occurs, in which case Licensee shall pay NetRatings four-million U.S. dollars ($4,000,000) (minus any other payments previously made under this Section 3.1(ii) ) within five (5) business days of such Change of Control Event; and (3) for calendar year 2008, and each calendar year thereafter, Licensee’s Revenue equals or exceeds sixty-million U.S. Dollars ($60,000,000), in which case Licensee shall pay NetRatings two-million U.S. dollars ($2,000,000) on or before January 30 of the calendar year immediately following the calendar year in which Licensee’s Revenue equaled or exceeded sixty-million U.S. dollars ($60,000,000), up to a total of four-million U.S. dollars ($4,000,000) (minus any other payments previously made under this Section 3.1(ii) ).

               (iii)  Licensee Provider Royalties . As further consideration for the License granted under this Agreement, and in addition to the other payments required pursuant to Section 3.1 of this Agreement, in the event Licensee’s revenue for any given calendar year during the Term from any single Licensee Provider listed in Schedule F to this agreement (including affiliates and subsidiaries of such Licensee Provider as of the Effective Date) equals or exceeds [ * ], then, on or before January 30 of the calendar year immediately following such given calendar year, Licensee shall pay an amount equal to [ * ] (the “ Licensee Provider Royalty ”). During the Term, Licensee shall make such annual Licensee Provider Royalty payments, if any, up to a total of [ * ] in the aggregate, at which time no additional Licensee Provider Royalties will become due. For purposes of this Section 3.1(iii) , Licensee’s revenue attributable to any single Licensee Provider shall be determined in the same manner as Licensee’s Revenues are determined for Licensee as defined in Section 1.5 of this Agreement.

               (iv)  Licensee Acquisition Royalties . As further consideration for the License granted under this Agreement, and in addition to the other payments required pursuant to Section 3.1 of this Agreement, and subject to Section 3.2 below, in the event that, during the Term, Licensee acquires, whether by merger, consolidation, reorganization or other similar transaction or series of transactions, all or substantially all the technology, customers, or other assets of an entity or fifty percent (50%) or more of the combined voting power of an entity’s then outstanding securities (in either case, the entity being referred to herein as the “ Acquired Entity ”), then, within thirty (30) business days following the closing date of any such transaction, Licensee will either pay NetRatings (1) an additional royalty of [ * ], or (2) an additional royalty of [ * ] (either of the foregoing royalties referred to as a “ Licensee Acquisition Royalty ”). For purposes of this Section 3.1(iv) , the [ * ]. Notwithstanding the foregoing, Licensee shall not be obligated to pay the Licensee Acquisition Royalties for any transaction if and only if (1) Licensee has paid (regardless of the type of consideration) less than [ * ] for such Acquired Entity or the assets or securities thereof in a single transaction or in any series of transactions, or (2) the Acquired Entity already has a license from NetRatings under the NetRatings Patents which covers the acquired technology, customers or other

assets of the Acquired Entity or (3) Licensee’s royalty payment obligations have terminated prior to the closing date of such transaction pursuant to Section 3.2 .

          3.2 Termination of Royalty Obligations . In the event that, and only in the event that, every claim of every one of NetRatings’ U.S. Patent Nos. 5,675,510; 5,796,952; 6,115,680; 6,108,637; 6,138,155; 6,643,696; 6,763,386 and any additional NetRatings Patent asserted against at least one accused infringer in any litigation action currently pending or started within six (6) months of the Effective Date, is determined to be invalid or unenforceable by a final, unappealed decision of a court having competent jurisdiction and authority 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 of such decision, and from that date forward, no further Initial or Additional Royalty payments will be due. The termination of the payments pursuant to this Section 3.2 shall not entitle Licensee to a refund of any payments previously made. Licensee agrees not to contest the validity or enforceability of any of the NetRatings Patents or in any way assist any other entity in contesting the validity or enforceability of any of the NetRatings Patents, except that Licensee may contest the validity or enforceability of any NetRatings Patent which NetRatings asserts against Licensee in an action. Licensee further agrees that the termination of any of the royalty payments pursuant to this Section 3.2 shall not be effective in the event of a breach of Licensee’s agreement not to so contest or assist in contesting the validity or enforceability of any of the NetRatings Patents.

          3.3 Method of Payment . Unless otherwise specified in writing by NetRatings, all payments to be made by Licensee under this Agreement shall be made by wire transfer of funds to the account of NetRatings as set forth in Exhibit B hereto.

          3.4 Interest on Late Payments . Late payments shall incur at the prime interest rate, as reported by the Wall Street Journal, plus one percent (1%) per month from the date such payments were originally due hereunder or the highest rate allowable under applicable law (whichever is less).

          3.5 Royalty Statements . Unless or until Licensee’s obligation to pay the Additional Royalty and Licensee Provider Royalty is fully satisfied or has terminated, then, on or before January 30 ^th of each calendar year, Licensee shall provide NetRatings with written statements of Licensee’s Revenue in the form annexed hereto as Schedule D . Within thirty (30) business days of any acquisition by Licensee pursuant to Section 3.1(iv) . Licensee shall provide NetRatings with a written statement of the applicable [ * ]. Such royalty statements shall be certified as accurate by a duly authorized officer of Licensee. The receipt or acceptance by NetRatings of any royalty statement or payment shall not prevent NetRatings fro