Effective: April 28, 2017
Notwithstanding any terms and conditions between the parties, these Specific Terms and Conditions (“Terms”) shall apply to all innovation and primary market research services and other ad hoc research services performed by Nielsen’s Innovation practice (including the BASES and Affinnova brands), Consumer Insights and Consumer Neuroscience practice (the “Services”) as identified in proposals or order forms for individual innovation projects (each such project, a “Project”) entered into by Nielsen and Client (each such proposal, a “Project Proposal” and together with these Terms, each a “Project Agreement”). For each Project Agreement, “Nielsen” means the Nielsen entity providing the Services thereunder, including without limitation The Nielsen Company (US), LLC and Nielsen Consumer Neuroscience, Inc., and “Client” means the entity contracting with Nielsen to receive the Services thereunder, including without limitation any Client affiliate accessing or using such Services. These Terms do not apply to any other Nielsen services or products, including without limitation Nielsen’s Retail Measurement Services, Consumer Panel Services, Nielsen Analytic Consulting Services, other syndicated products or services, or technology.
1.1. Project fees are set forth in the Project Agreement. Unless stated to the contrary in the Project Agreement, the Project fees are payable in two instalments: (1) 80% on the date of acceptance of the Project Agreement; and (2) 20% on delivery of the final report. If Client requires a draft report, Nielsen may invoice up to 90% of the Project fee on delivery of the draft report. If the scope of Services expands, additional charges may apply following the agreement of the parties. Payment on invoices, including those for any applicable tax, is due upon invoice delivery. Interest accrues on invoices unpaid after thirty (30) days at the lesser of 1.5% per month or the maximum allowed by law. Client agrees to indemnify Nielsen and pay all other costs and expenses Nielsen may incur in recovering the amount due, including any attorneys’ fees or debt collection agency fees. Client shall reimburse Nielsen for reasonable travel expenses incurred by Nielsen in performing Services.
1.2. Transnational research may be affected by fluctuations in currency exchange rates. If in any of the foreign markets the exchange rate of the currency changes versus the billing currency by 2.5% or more between the date of Project Agreement acceptance and date of delivery of the final deliverable, Nielsen shall adjust the Project fees accordingly.
1.3. The fee for the Services described in the Project Agreement includes the deliverables described therein (an integrated report), which are intended for internal business purposes. Additional professional service fees may be incurred if Client requires additional Nielsen support (including without limitation in-person meetings, drafting of white papers, additional design work for formatting of presentation, etc.) to utilize project results for additional internal or external purposes, provided such purposes are appropriate and approved by Nielsen. Nielsen will use commercially reasonable efforts to assist Client with such appropriate and approved purposes; however, the timing of such assistance is outside the Project timeline and shall be agreed case-by-case.
2. COPYRIGHT; OWNERSHIP
2.1. Copyright in the Project results to the extent created exclusively for and pertaining exclusively to Client (“Results”) shall be deemed to be vested in Client and Client grants to Nielsen a perpetual license to retain all deliverables and Results in databases used for benchmarking, training, segmentation and validation of Nielsen analyses, provided the Results are used or disclosed only in anonymous or masked form without identifying Client. Client may not use the Results in a misleading manner. Client may not, without Nielsen’s prior written approval in each such case, (a) use the deliverables or Results in legal proceedings or (b) disclose the deliverables or Results to the general public, including without limitation in an advertising, marketing or promotional claim.
2.2. All research methodologies, concepts, analyses, algorithms, solutions, know-how, models, survey design and data, PII, raw data including physiological, facial-coding, eye-tracking and/or biometric data, software, Platforms, expertise and other tools, Nielsen syndicated or syndicatable data, any Nielsen pre-existing proprietary materials, and derivatives of all foregoing, used, gained, developed, or discovered in connection with the Services or otherwise, and any suggested modification or improvements thereto and/or any intellectual property therein (collectively, “Nielsen IP”) remain Nielsen’s exclusive property.
2.3. Client agrees (a) not to use, or have or let any third party use, the Results, deliverables or Nielsen IP to (i) reverse engineer Nielsen IP or (ii) create, enhance or benefit a service that could compete with any of Nielsen’s services; and (b) the Project Agreement grants Client no rights in any data or technology of Nielsen or its affiliates not currently provided to Client or any third-party data, and that the use of such data or technology in connection with any Service(s) may be subject to additional terms, conditions, and charges.
2.4. Client warrants that it has full right and authority to provide Nielsen with any data, content, specifications, instructions, information, stimuli or materials supplied to Nielsen in connection with the Project Agreement (“Client Input”) and that Nielsen’s use thereof will not infringe or violate any third-party rights. If the Services design requires Nielsen to use any third-party content, including without limitation visual or audio materials, products, information or any derivatives thereof, Client agrees (a) such use is as-is without any representations, warranties or undertakings, whether express or implied, including without limitation merchantability, non-infringement or fitness for a particular purpose, and in no event shall Nielsen bear any liability related thereto in excess of the refund of fees paid Nielsen by Client for the affected part thereof, and (b) Client will not disclose such Services or any Deliverables accessed in connection therewith outside of its internal organization.
2.5. If Nielsen is commissioned by Client to conduct a Project requiring respondents to examine, use or consume any products, services or concepts, including without limitation food, drink, household goods, medications or audio/visual stimuli (collectively, “Products”), Client warrants that all Products have all legally required warning and labels, all applicable regulatory clearance to be released into the market, otherwise comply with applicable law and will not cause injury.
3. PLATFORMS AND TECHNOLOGY.
3.1. In addition to and without abridging any protections granted Nielsen under Section 2 of these Terms, this Section 3 sets out conditions of access to any Nielsen software or platform licensed to Client in connection with the Services as specified in the Project Agreement, including without limitation Nielsen Studio (each such licensed platform, the “Platform”).
3.2. Nielsen grants a limited, non-exclusive, revocable, non-transferable, non-cancellable license to each named authorized user within Client's named authorized business unit(s) (such user(s), the “Authorized User(s)”) to use the Platform during the duration of the Project or another term set forth in the Project Proposal (the “License”). Additional terms may apply to any subscription-based License as may set forth in the Project Proposal. Nielsen shall assign a unique identifier including company name, user name and password (the "ID") to each Authorized User. IDs may not be reassigned without prior notice to Nielsen or shared. Client agrees (a) to promptly notify Nielsen of any misuse or non-permitted disclosure of IDs, (b) not to disclose or permit the use of the Platform to or by a third party without a separate access agreement; (c) not to use the Platform to (i) handle infringing, libelous, defamatory, obscene or otherwise unlawful or tortious material, (ii) cause or permit violation of any third-party rights; (iii) store or transmit any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Platform or any content therein, or (v) attempt to gain unauthorized access to the Platform or any other Nielsen software, systems or networks; and (d) that Nielsen may suspend or revoke IDs or terminate Client’s access to the Platform upon (i) a suspected security issue, (ii) Client’s breach of the Project Agreement or (iii) lack of authorized activity in the prior six (6) months. Use of the Platform may be subject to other limitations, which Nielsen will post on the Platform if it will have a material adverse effect on Platform use.
3.3. Nielsen may, at any time, in its sole discretion and without liability to any party, improve, enhance, modify, use or discontinue using any Platform or any Nielsen or third-party software, equipment, procedures, designs or similar assets related to or used in connection with the Services (collectively, “Technology”). Nielsen has commercially reasonable information security procedures, but is not able to control all factors affecting Internet data transfer and disclaims all liability resulting from services interruptions, outages, data and formatting distortions and unauthorized access to any content, Input or information within the Technology. Nielsen does not warrant that all Technology errors will be corrected or that its operation will be uninterrupted or error-free, and shall not be deemed in violation of its obligations as long as the Technology substantially conforms to the then-current published documentation. By using the Technology, Client consents to having Client Input, Products, deliverables and Results transferred to, processed, stored, handled and/or transmitted by or through the use of Technology. EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS, NIELSEN DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3.4. If the Technology is used by or on behalf of a unit or agency of the U.S. Government (the “Government”), Government agrees it is “commercial items” under 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” under 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Technology and documentation are licensed to Government end users only (a) as commercial items and (b) with those rights granted to all other end users pursuant to the Project Agreement. Client represents it is not named on any Government denied-party list and it shall not permit any Authorized Users to access or use the Technology in a U.S. embargoed country or in violation of any U.S. export law or regulation.
4. PROJECT RECORDS; DATA AND CONTENT PROTECTION. Survey questionnaire responses shall be stored by Nielsen in accordance with applicable market research ethical guidelines. Client agrees that the Project may involve recording, storing, transmitting and otherwise processing names, contact information, images, live footage, videos, mobile data and/or other personally identifiable or confidential information or communication of study participants as well as adult and/or minor members of their households (collectively, “PII”). Nielsen shall not be required to disclose any PII absent the relevant subject’s specific prior written consent or an unappealable court order in each instance. Client agrees that it will duly respect any applicable obligations under market research guidelines, privacy regulations, and data protection legislation arising in connection with the collection and handling of PII under the Project Agreement, including without limitation obtaining any applicable respondent consents. Without limiting the generality of the foregoing and notwithstanding any provisions to the contrary, Client represents, warrants and agrees that Client will (a) use, permit the use of and/or handle any PII obtained, accessed or disclosed in connection with the Project (i) in accordance with all applicable laws, regulations and best industry standards, and (ii) solely for Client’s internal research and development related to the product(s) being tested (“Purpose”), (b) disclose PII solely to internal members of Client’s team with the need to use or access the PII for the Purpose, (c) not distribute or permit the distribution of such PII outside of Client’s internal organization, (d) under no circumstances disclose any part of PII to general public or any part thereof, including without limitation in connection with advertising, marketing, or legal proceedings, and (e) indemnify, defend and hold harmless Nielsen and its affiliates against any breach of any of the foregoing warranties or covenants. If Client provides Nielsen with PII of its customers, employees or other individuals for use by Nielsen in connection with performing Services, Client agrees that it shall disclose such PII in conformance with (a) any statement or policy that Client provides to such data subjects concerning the use and disclosure of their PII and (b) applicable law.
5. PROJECT TIMING. Nielsen will use commercially reasonable efforts to deliver Services in accordance with the Project Proposal timeline, but shall not be liable for delays or other failure to perform its obligations occasioned by factors outside its control (including, without limitation, postal or other communication delays, industrial disputes, fire or accident, governmental act or natural catastrophe). Client shall provide Nielsen with all necessary assistance in rendering Services in a timely manner. Nielsen shall not be liable for any errors or delay in the Project Proposal schedule resulting from any (a) Client’s errors, (b) changes requested by Client to the Project's research criteria or methodology; or (c) the quality of, Client's delay in providing, or any errors in, Client Input or any materials necessary for Nielsen to perform Services. The Project Proposal timeline shall be extended to reflect any Client-caused delays or errors. Client shall be responsible for any costs incurred by Nielsen as a result, in addition to the Project fee.
6. CONFIDENTIALITY. The parties acknowledge that each may disclose Confidential Information to the other party during or in connection with the Project. “Confidential Information” means any proprietary or trade secret information disclosed orally or in writing, including without limitation any terms and conditions of the Project Agreement, customer lists, marketing and product plans, technology including Platforms, any IDs (as defined herein), systems, business processes, and any other financial, sales, marketing or business information that is not (a) disclosed in public materials or otherwise available to the general public; (b) lawfully obtained from a third party without any obligation of confidentiality; (c) lawfully known to the recipient without confidentiality obligations prior to disclosure by the discloser; or (d) independently developed by the recipient. Each recipient will treat all of discloser’s Confidential Information with the same degree of care as it accords to its own Confidential Information, but in no event less than reasonable care, and not use Confidential Information for any purpose other than the performance of its obligations hereunder. Client acknowledges and agrees that Projects involving the transmission of images, footage or recordings and/or the use of mobile technology carry an additional risk of disclosure of Client’s Confidential Information outside Nielsen’s control and Client fully accepts such risk. The recipient may disclose Confidential Information pursuant to law, regulation or governmental action or order (each, a “Compelled Disclosure”); provided that, if legally permitted to do so, the recipient notifies the discloser prior to Compelled Disclosure and limits the scope of the disclosure to the minimum necessary to comply with such Compelled Disclosure.
7. QUALITY PLEDGE; LIMITATION; INDEMNITY
7.1. Nielsen shall perform Projects in accordance with the professional standards applicable to the market research industry and use reasonable efforts to ensure the accuracy of data in Project deliverables. Client agrees that: the Services constitute estimates carried out in accordance with Nielsen’s market research methods and are subject to sources outside Nielsen’s control and limits of statistical error; deliverables are not intended as a substitute for financial, investment, legal, business or other professional advice; and Client remains solely responsible for its decisions, actions and use of Services and compliance with applicable laws.
7.2. Nielsen will use reasonable efforts to correct any error the parties mutually verify in Project deliverables, except if resulting from errors, insufficiency or inaccuracies in Client Input (each such verified error, a “Nielsen Error”). If Nielsen does not correct a Nielsen Error, Nielsen will refund to Client the fee paid to Nielsen for part of the Project affected by such Nielsen Error. The foregoing refund is Client’s sole and exclusive remedy for any error, inaccuracy, delay or failure to deliver Services. Nielsen does not limit any liability it is not permitted to limit by law, such as liability for death or personal injury caused by its negligence. Nielsen will not otherwise be liable, in contract, tort (including negligence) or otherwise, for any lost profits or other indirect, consequential, incidental, punitive or special damages, loss, expense or damage of any kind and Nielsen’s aggregate liability pursuant to the Project Agreement is limited to a refund of the fees paid Nielsen by the Client for the relevant part of the Project. These remedies are exclusive.
7.3. Nielsen agrees to indemnify Client, its affiliates, and their respective officers, directors, shareholders, employees and agents against any damages, loss or expenses arising from any claim, demand, cause of action, suit or proceeding (“Claim”) brought by a third party against Client alleging that Client’s permitted use of the deliverables infringes any patent, copyright, trade secret or other proprietary right of the claimant; except to the extent attributable to combination with or modification by any other content, materials or technology, and provided that Client has complied with all the terms of the Project Agreement, Client gives Nielsen prompt written notice of such Claim, and Nielsen has sole control of the action including right of settlement. Nielsen shall pay any final award or settlement resulting from such Claim. This clause sets out Client’s sole and exclusive remedy and Nielsen’s entire liability for infringement of intellectual property.
7.4. Client shall defend, indemnify and hold harmless Nielsen, its affiliates, and their respective officers, directors, shareholders, employees and agents (“Nielsen Indemnitees”) against all damages, losses, liabilities, and expenses (including all professional fees, reasonable attorneys’ fees and expenses) (collectively, “Loss”) arising from or related to any use of the Services other than as expressly permitted in the Project Agreement or from Client’s use or disclosure of the Services outside of Client’s internal organization. Client shall further defend, indemnify and hold harmless Nielsen Indemnitees against all Loss incurred in connection with any Claim arising out of or relating to: (i) the description, presentation, use or consumption of any Product, whether or not Client is the manufacturer or distributor or agent for distribution of such Product, and regardless of termination of the Project Agreement for any reason or (ii) any breach of Client’s warranties regarding Products or Client Input. If Nielsen or any of its employees, agents or subcontractors becomes subject to a subpoena, order, deposition, interrogatory, investigative demand or other legal process in a legal, administrative or governmental proceeding to which Nielsen is not a party seeking disclosure of any materials or information related to the Services or deliverables, then Client shall bear and/or reimburse Nielsen for all costs and expenses, including without limitation reasonable attorney’s fees, staff time and costs incurred related to Nielsen’s response, compliance with or resistance thereto, except to the extent such proceeding is directly caused by Nielsen’s breach of the Project Agreement.
8. TERMINATION. The Project Agreement shall remain in effect between the parties until completion of the Project, unless terminated as permitted herein. Either party may terminate the Project Agreement if the other party fails to cure a material breach of the Project Agreement within 30 days of written notice thereof; or in the event the other party becomes the subject of a proceeding in bankruptcy/insolvency or its equivalent. Upon early termination of the Project Agreement, Client shall pay for Services provided and Nielsen’s fees and costs incurred up to the effective date of termination, and, if Nielsen is unable to terminate any contract or other obligation attributable to Services contracted to be performed for or on behalf of Client and entered into on the basis of the continued performance of such Agreement, then Client also shall reimburse Nielsen for the reasonable costs related to such contract or other obligation, whether such amount is a fee for services or a termination fee. Without limiting the foregoing, the following specific early cancellation fees shall apply: (a) Forecasting: 25% of total forecasting-related fees after marketing plan inputs have been submitted by the Client or recommended by Nielsen, and 75% of total forecasting fees after the marketing inputs are deemed final by Client; (b) Line and Price Optimizers: 10% of total fees after the SKU list has been delivered, 25% of total fees after image procurement is completed, 50% of total fees after study inputs have been approved, and 80% of total fees after field start; and (c) All other studies: 10% of total fees after the draft questionnaire or study outline has been delivered, 25% of total fees after study inputs have been approved (including questionnaire, concepts, stimuli, pack images etc. as relevant) and 80% of total fees after field start.
9. INSURANCE; SUBCONTRACTING. Nielsen shall carry liability insurance and other insurance coverage consistent with prudent practices in the market research industry. Nielsen may use subcontractors for fieldwork, data entry, data processing and other functions and Nielsen remains responsible for subcontractors’ performance hereunder.
10. MISCELLANEOUS. Fees payable pursuant to the Project Agreement are exclusive of all taxes. Client is responsible for all value-added, goods and services, sales, use and similar taxes due with respect to the Services. Client shall cooperate with Nielsen to comply with applicable tax regulations. The parties are independent contractors and there are no third party beneficiaries. No alterations to the specifications set forth in the Project Agreement shall be made unless proposed in writing by one party and accepted in writing by the other party. The Project Agreement, which includes these Terms and the Project Proposal, and the parties’ rights and duties shall be interpreted and governed in accordance with the laws of the State of Illinois without regard to its conflict of laws principles. In the event of any conflict or inconsistency, these Terms shall govern the Project Agreement with respect to the issue(s) to which they apply over any other agreements, purchase orders or other documents applicable to such Project Agreement, except solely to the extent that any of these Terms is specifically referenced and expressly modified in such Project Agreement. Upon expiration or termination of the Project Agreement, any provision that by its nature would be understood to survive expiration or termination shall survive, including, without limitation, provisions relating to Confidential Information, ownership of intellectual property, indemnification and limitation of liability. If any portion of these Terms is declared invalid by a court of competent jurisdiction, the remainder shall continue in force and the invalidated portion shall be automatically replaced by a legal, valid and enforceable provision as similar in terms to the invalidated provision as may be possible. No waiver by a party of any breach of the Project Agreement shall be deemed a waiver of any prior or subsequent breach.