NIELSEN INNOVATION PRACTICE, CONSUMER INSIGHTS AND NEURO SERVICES TERMS AND CONDITIONS
These terms and conditions (“Terms”) shall apply to all innovation and customized primary market research services and other ad hoc market research services performed by Nielsen’s Innovation (including the BASES and Affinnova brands), Consumer Insights and Consumer Neuroscience practices (the “Services”) as identified in proposals or project confirmations entered into by Nielsen and Client (each a “Project”). Each proposal or project confirmation together with these Terms constitutes a “Project Agreement”). For each Project Agreement, “Nielsen” means the Nielsen entity providing the Services, including without limitation Nielsen Connect Australia Pty Ltd and “Client” means the entity contracting with Nielsen to receive the Services. These Terms do not apply to any other Nielsen services or products including Nielsen’s Retail Measurement Services, Consumer Panel Services, Nielsen Analytic Consulting or other syndicated products or services.
1.1. Fees for the Project are set out in the project confirmation. If Client requires a draft report, Nielsen reserves the right to invoice up to 90% of the charges on delivery of the draft report. In the event the scope of the survey expands, additional charges may apply following the mutual written agreement of the parties.
1.2. 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. Payment on invoices is due 30 days from date of invoice. Interest accrues on invoices unpaid after 30 days at the lesser of 1.5% per month or the maximum allowed by law. Client agrees to indemnify Nielsen all costs and expenses Nielsen may incur in recovering the amount due, including any attorneys’ fees (on own lawyer-client basis) and debt collection agency fees. Client shall reimburse Nielsen for reasonable travel expenses incurred by Nielsen in performing Services.
1.3. Transnational research may be affected by currency exchange rate fluctuations. If in any one of the foreign markets the exchange rate changes versus the billing currency fluctuates by 2.5% or more between the effective date of the project confirmation and date of delivery of the final deliverable, Nielsen shall adjust the fees accordingly so that the Client shall be liable for any loss resulting from the currency fluctuation.
1.4. The fee for the Services includes the deliverables described in the Project Agreement (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 the Client (“Results”), shall be deemed to be vested in Client; and Client grants to Nielsen a perpetual license to retain all Results and deliverables in those databases used by Nielsen for benchmarking, training segmentation and validation of Nielsen analyses provided the Results are used or disclosed only in an anonymous or masked form without identifying the 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 and services concepts, analyses, algorithms, solutions, know-how, models, survey design and data, PII (defined below), raw data including physiological, facial-coding, eye-tracking and/or biometric data, software, Platforms, expertise and other tools, pre-existing Nielsen proprietary materials, Nielsen syndicated or syndicatable data 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”) remains the sole and exclusive property of Nielsen.
2.3. Client agrees that (a) it shall not 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 and all data, specifications, information or materials (including third-party data, information or materials or personal information) in connection with the Project Agreement (“Client Input”) and that Nielsen’s use thereof will not infringe or breach the intellectual property rights, privacy rights or any other rights of any person.
2.5. 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 by Nielsen to Client for the affected part thereof, and (b) Client will not disclose such Services or any deliverables accessed in connection with such content outside of its internal organization.
2.6. In the event that Nielsen is commissioned to conduct a Project requiring respondents to examine, use or consume any products services or concepts including, without limitation, food, drink, household goods or medications collectively, (“Products”), Client warrants that all such Products have all legally required warnings and labels, all applicable regulatory clearance to be released into the market, and otherwise comply with applicable law and will not cause injury.
3. PLATFORMS & TECHNOLOGY
3.1. Despite the provisions of any other clause of these Terms, this clause 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 software or platform, the “Platform”).
3.2. Nielsen grants a limited, non-exclusive, revocable, non-transferable, non-cancellable licence 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 out in the project confirmation (the “Licence”). Additional terms may apply to any subscription-based Licence as may be set out in the proposal. Nielsen shall assign a unique identifier including company name, username 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.
3.3. Nielsen may, in its sole discretion, and without liability to any party, improve, enhance and 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, except to the extent prohibited by law, Nielsen disclaims all liability resulting from services interruptions, outages, data and formatting distortions and unauthorized access to information within the Technology. Nielsen does not warrant that all errors in the Technology 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 the Technology. EXCEPT AS EXPLICITLY SET OUT 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.
4. PROJECT RECORDS; DATA AND CONTENT PROTECTION
4.1. 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 personally identifiable or confidential information or communication 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.
4.2. 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 above warranties.
4.3. If Client provides Nielsen with PII about 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.
4.4. Client acknowledges and agrees that Nielsen, any of Nielsen’s affiliates and/or any of Nielsen’s and/or Nielsen affiliates third party service providers may store and/or process information/data provided by Client (including PII) in any country. Client also acknowledges and agrees to the transfer, domestically and/or internationally, of such information/data by and among Nielsen, any of Nielsen’s related companies and/or any of Nielsen’s and/or Nielsen’s related companies’ third party service providers. In respect of any such cross-border storage, processing and/or transfer, Nielsen shall comply with all applicable market research guidelines and applicable data protection legislation.
5. PROJECT TIMING
5.1. Nielsen will use commercially reasonable efforts to deliver the Project report or other deliverables in accordance with the Project timeline, but shall not be held 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).
5.2. Client shall provide Nielsen with all necessary assistance in rendering Services in a timely manner. Nielsen shall not be liable for any delay in the Project timeline 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 timeline shall be extended to reflect any Client-caused delays. Client shall be responsible for any costs incurred by Nielsen as a result in addition to the agreed fees for Services.
6.1. The parties acknowledge that each may disclose Confidential Information to the other during the term of this Project Agreement. “Confidential Information” means any confidential or trade secret information disclosed by one party to the other party, either orally or in writing, including but not limited to the terms and conditions of the Project Agreement, as well as 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 in the public domain; (b) lawfully obtained from a third party without any obligation of confidentiality; (c) lawfully known to the receiving party prior to disclosure by the other party; or (d) independently developed by the receiving party.
6.2. Each recipient will treat all Confidential Information of the other party with the same degree of care as it accords to its own Confidential Information, but in no event less than a reasonable degree of care and not use Confidential Information for any purpose other than the performance of its obligations under the Project Agreement. 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. If requested in writing by the other party, recipient will destroy or return to the other party all Confidential Information upon termination or expiration of a project confirmation or the Project Agreement.
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 recognizes that data contained in the Project deliverables are estimates derived from sample surveys carried out in accordance with accepted market research methods and as such are subject to 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 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 refund is Client’s sole and exclusive remedy for any error, inaccuracy, delay or failure to deliver Services. Nielsen does not exclude any liability that it is not permitted to exclude 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 or consequential, incidental, punitive or special damages, loss, expense of any kind and Nielsen’s aggregate liability pursuant to the Project Agreement is limited to a refund of the fees paid by the Client for the relevant part of the Project. These remedies are exclusive.
7.3. Nielsen agrees to indemnify Client and Client’s affiliated companies and their respective officers, directors, shareholders, members, agents and employees against any damages, loss or expenses (including legal fees) arising from a claim, demand, cause of action 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: 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 control of the action including sole right of settlement. Nielsen shall pay any final award or settlement resulting from such claim. This clause sets out Nielsen’s entire liability for any infringement of intellectual property.
7.4. Client shall defend indemnify and hold harmless Nielsen, its affiliates and their respective officers, directors, shareholders, agents and employees (“Nielsen Indemnitees”), against all damages, loss liabilities and expenses (including all professional fees, reasonable attorneys’ fees and expenses) (collectively, “Loss”) arising from Client’s use of Services other than as expressly permitted in this 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 Client Input.
7.5. 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.
7.6. Nothing in this Project Agreement excludes or limits the application of any statutory provision (including a provision of the Competition and Consumer Act (2010)) where to do so would contravene that statute or cause any part of this clause to be void. In this Agreement, “Australian Consumer Law” has the meaning given to that term in section 4 of the Competition and Consumer Act 2010 (Cth); “Consumer” has the meaning given to that term in section 3 of the Australian Consumer Law; and “PDH Goods or Services” means goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. Under the Australian Consumer Law (and other similar legislation of Australian states and territories), certain statutory guarantees are conferred in relation to the supply of goods or services to a Consumer (“Consumer Guarantees“). Where Client as a Consumer acquires goods and services under this agreement from Nielsen as a supplier and the goods or services are not PDH Goods or Services, Nielsen limits its liability for a failure to comply with any Consumer Guarantee (other than: (a) a Consumer Guarantee as to title, encumbrances or undisturbed possession of goods conferred by the Australian Consumer Law; or (b) where to do so would otherwise cause all or part of this clause to be void) to (at Nielsen’s option): (i) in the case of goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced; and (ii) in the case of services, re-supplying the services or paying the cost of having the services re-supplied, The parties agree it is fair and reasonable in all the circumstances for Nielsen’s liability to be so limited.
8.1. This Project Agreement shall remain in effect between the parties until completion of the Project unless terminated earlier in accordance with its terms.
8.2. In the event this Agreement is terminated by either party for any reason, charges (as agreed upon by both parties) for services delivered through the termination date will become payable to Nielsen.
8.3. 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 of the breach; or in the event the other party becomes the subject of a proceeding in bankruptcy/insolvency or its equivalent.
8.4. 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 this Project 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 early cancellation fees set out in the project confirmation shall apply.
9. INSURANCE; SUBCONTRACTING
9.1. Nielsen represents that it carries liability insurance and other insurance coverage consistent with prudent practices in the market research industry.
9.2. Nielsen may use subcontractors for fieldwork, data entry, data processing and other functions and Nielsen remains fully responsible for subcontractors’ performance in accordance with this Project Agreement.
10. MYSTERY SHOPPER STUDIES
10.1. The following language applies to any mystery shopping Project that involves observation of Client’s organization: Client warrants that it has notified those personnel who may be monitored of the fact that they may be monitored. Such notification must include the following elements: (a) that this activity will take place within a future time period; (b) the objectives and general nature of the study; (c) whether data subjects will be identified or not; (d) whether audio, video, electronic or other recording of observations or interviews will be carried out (including adequate information regarding purpose, recipients and storage of the recording); and (e) whether consideration will be given to making good any losses of salary resulting from time spent in dealing with mystery shoppers (in cases where staff remuneration to any extent depends on commission or bonuses).
11.1. The Project Agreement, which includes these Terms and the Project proposal shall constitute the entire agreement between Nielsen and Client with respect to each Project. Any purchase order or similar document received from Client shall be for billing reference only and such document shall not take precedence over this Agreement. No alterations to the specifications to this Project Agreement shall be made unless accepted in writing by both parties. The parties are independent contractors and there are no third party beneficiaries.
11.2. In the event of any conflict or inconsistency, these Terms shall govern the Project Agreement except to the extent that any of these Terms is specifically referenced and expressly modified in the Project Agreement.
11.3. This Agreement is for the benefit of and binding on the parties and their successors and assigns. The rights and/or obligations under this Agreement may not be assigned by either party without the other party’s prior written consent, except that either party may, upon giving written notice to the other party, assign all of its rights or transfer by novation all of its rights and obligations to a related company or a successor to all or substantially all of its business. For the avoidance of doubt, each party hereby consents in advance to any novation permitted under this clause.
11.4. 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.
11.5. The Project Agreement and the parties’ rights and duties shall be interpreted and governed in accordance with the laws of Australia.