Updated and Effective as of: June 12, 2015

The term “Client” below refers to the company with which The Nielsen Company (US), LLC (“Nielsen”) is contracting. These Terms & Conditions (these “Terms”) shall govern all Accepted Proposals (as defined below) whereby Nielsen is providing Client with access via its Nielsen Opinion Quest division to a certain population of respondents sourced by Nielsen from its proprietary panels, real-time sample, and/or sample partner network (the “Nielsen Sample”) for a market research survey or other research activity conducted by Client (each, a “Client Survey”), in accordance with these Terms.  These Terms are applicable to an Accepted Proposal only if Nielsen and Client are not subject to a fully executed services agreement relating to the use of Nielsen Sample, including without limitation, a Master Panel Usage Agreement, that is in full force and effect.

1.         SURVEY REQUIREMENTS.  With respect to a Client Survey, Client shall provide to Nielsen a proposal request, which may be in the form of a written document, email or a request submitted via a router platform (the “Router”), detailing the requirements for the Nielsen Sample (the “Proposal Request”), including without limitation, the interview length, the estimated field period, the desired number of completed Client Survey responses (each, a “Complete” and, collectively, the “Completes”) and any other specifications (collectively, the “Survey Specification”).  Upon receipt of a Proposal Request, Nielsen, in its sole discretion, may prepare a proposal for Client’s consideration that includes the Survey Specifications (the “Proposal”), which may be in the form of a written document, email or an offer submitted via the Router.  Unless the parties otherwise agree, if Client notifies Nielsen that it accepts the Proposal, which it may do by signing the applicable document, sending an email approval or accepting the Proposal via the Router, Nielsen shall provide the Nielsen Sample (an “Accepted Proposal”).  Client shall pay Nielsen on a per-complete usage charge (the “Usage Fee”) for access to the Nielsen Sample for Client Surveys.  The Usage Fee shall be based on the pricing as set forth in the Accepted Proposal, whether in the signed document, email approval or in the Router.  Any changes in the Survey Specifications shall be effective only if agreed to in writing by both parties, which may be done by both parties signing an amendment to the Proposal, sending email approval or accepting the amended Proposal via the Router.

2.         RECRUITMENT. For an Accepted Proposal, the Client shall provide Nielsen with (i) if Nielsen Sample will be targeted, any wording required by Client to be included in the Client Survey invitation that Nielsen will send to the targeted Nielsen Sample (the “Invitation”) and/or (ii) any wording required by Client to be included in the screener for the Client Survey that Nielsen will present to Nielsen Sample (the “Screener”), which wording shall be subject to Nielsen’s review and approval, such approval shall not be unreasonably withheld.  Although Nielsen will use reasonable efforts to recruit the requisite amount of Nielsen Sample to achieve the desired number of Completes, Nielsen shall not be responsible for any shortfall in the number of Completes, whether the shortfall is the result of the actual incidence being less than the estimated incidence or recruited Nielsen Sample failing to complete the Client Survey or otherwise.  Client shall be responsible for stopping enrollment in the Client Survey upon achieving the desired number of Completes by notifying Nielsen in writing to that effect.

3.         REVIEW AND APPROVAL OF SURVEY WEBSITE; CLIENT RESPONSIBILITIES.

3.1.     Unless the Accepted Proposal specifies otherwise, Client is responsible for establishing and programming the website where recruited Nielsen Sample will participate in the applicable Client Survey.  Upon Nielsen’s request, the URL for the Client Survey website will be provided to Nielsen for Nielsen’s review prior to commencement of Nielsen Sample recruitment in order for Nielsen to confirm that: Nielsen Sample will be transferred effectively to and from the Client Survey website and Nielsen Sample IDs are captured and passed back to Nielsen properly; the Client Survey website contains no noticeable, material programming errors; the Client Survey conforms to the applicable Survey Specifications, including interview length; and the Client Survey does not include any statements or materials that Nielsen believes in good faith could damage Nielsen’s reputation or goodwill.  If the Client Survey website fails any of the foregoing, Nielsen will notify Client so that Client may take remedial action and, if Client fails to do so, Nielsen may terminate its further involvement in the Client Survey without any liability.  Client may not change the Client Survey website, including the Client Survey questionnaire therein, once it has been previewed, tested and approved by Nielsen without the prior written consent of Nielsen, which consent shall not be unreasonably withheld. 

3.2.     Unless the Accepted Proposal specifies otherwise, Client shall also: provide Nielsen with access to real-time reporting to monitor survey results (which must show the number of completes, terminates by question, over-quota terminates by question, incompletes, and progress towards sub-quota groups); ensure all quota stops are in place prior to commencement of fielding of the Client Survey to ensure the quota target is not exceeded; and at field end, provide Nielsen with a list of Nielsen Sample qualified IDs.

4.         PAYMENT.  Client shall be obligated to pay the Usage Fees for each respondent within the Nielsen Sample that completes a Client Survey (each, a “Nielsen Participant” and, collectively, the “Nielsen Participants”) based on Client’s records (unless Nielsen’s records indicate that additional Nielsen Participants completed the Client Survey), in accordance with the terms set forth in the Accepted Proposal, regardless of whether Client obtains more than the desired number of Completes, except with respect to any Nielsen Participant that is directed by Nielsen to the Client Survey after Nielsen’s receipt of Client’s notice to stop enrollment.  In the event that Client’s records and Nielsen’s records are not the same, then the parties will cooperate in good faith to identify and reconcile the discrepancy, and in connection therewith, Client shall provide the panelist IDs for any disputed Completes along with the rationale for any such dispute. If the parties are unable to reconcile such discrepancy, Nielsen’s records will govern.  Unless otherwise agreed to by the parties in the Accepted Proposal, invoices will be issued as follows:   (i) for Accepted Proposals of $10,000 or less: 100% of price upon delivery of the Completes; and (ii) for Accepted Proposals of more than $10,000: 50% of price upon commissioning; remaining 50% upon delivery of the Completes.  Payment of invoices are due within thirty (30) days of the date of invoice, and any amount not paid within such period may be subject to a late fee of eighteen percent (18%) per annum or the maximum rate permitted by law, whichever is lower.  Client is responsible for all value-added, goods and services, sales, use and similar taxes due with respect to the services that Nielsen renders or delivers to Client hereunder.  Fees payable pursuant to the Accepted Proposal are exclusive of all taxes. Client agrees to cooperate with Nielsen in connection with its compliance with applicable tax regulations.

5.         INCENTIVES.  Unless the Accepted Proposal specifies otherwise, (i) Nielsen shall be solely responsible for the processing of incentives for each Nielsen Participant; and (ii) each Nielsen Participant will be redirected to a website designated by Nielsen for incentive processing upon completion of the Client Survey.  The Accepted Proposal shall set forth whether the fees are inclusive of all incentives Nielsen provides to Nielsen Participants and/or whether there will be an additional charge for processing the incentives.

6.         RESTRICTIONS AND OBLIGATIONS

6.1.     Client shall not, directly or indirectly: (i) collect, or attempt to collect, any Respondent Identifiable Information (as defined below) related to any Nielsen Participant or, if such collection is authorized in writing by Nielsen, use the Respondent Identifiable Information other than as is absolutely necessary to conduct the Client Survey or as otherwise mutually agreed to by the parties in writing; (ii) disclose any information to any third party that reveals or permits the discovery of the identity of any Nielsen Participant; (iii) communicate in any way with any Nielsen Participant other than in connection with the administration of the Client Survey, including, without limitation, recruiting or attempting to recruit any Nielsen Participant to participate in any of its or any third party’s panels or surveys other than those contemplated by, and administered in accordance with, these Terms; (iv) market or attempt to market or display any offers of any kind to any Nielsen Participant, including, but not limited to, offers to participate in future surveys (research or non-research oriented) or other projects; (v) redirect any Nielsen Participant to any of its or other third party websites or offers; or (vi) offer registration opportunities for other products or services. Notwithstanding the foregoing, nothing contained in this Section shall prevent Client from soliciting respondents through its general respondent recruiting efforts unrelated to the activities contemplated by these Terms, provided that (a) such solicitation is done without reference to or use of any information provided by Nielsen, including, without limitation, email addresses, or gathered from a Nielsen Participant in connection with his or her participation in a Client Survey, and (b) such solicitation does not occur during the Client Survey process.

6.2.     Client represents and warrants that: (i) the primary purpose of the Client Survey is market research and not the advertisement or promotion of a commercial product or service, and that, accordingly, any email invitations sent to Nielsen Sample to recruit for a Client Survey do not constitute a “commercial electronic mail message” as such term is defined by the CAN-SPAM Act of 2003, as may be amended; (ii) the Client Survey will comply with all applicable laws, rules and regulations and with the guidelines set forth by the Council of American Survey Research Organization, commonly known as CASRO; (iii) the Client Survey will comply with Nielsen’s current Harris Panel privacy policy, which can currently be found at: https://www.harrispollonline.com/PrivacyPolicy/tabid/1754/language/en-US/Default.aspx, and with any applicable Router terms and conditions; and (iv) the Client Survey shall not contain any of the following: (a) any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable information, including, without limitation, any transmission constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, federal, provincial or international law; (b) any misleading, false or deceptive information, or any misrepresentation with respect to products or services offered by Client or others; (c) any chain letters, illegal pyramid or other similar schemes; or (d) any information, audio, video, graphics, software or other works in violation of any person’s or entity’s copyright, trademark, trade secret or any other intellectual property rights.

6.3.     For purposes of these Terms, “Respondent Identifiable Information” shall include:  

·       Names;

·       All geographic subdivisions smaller than a standard zip code, including street address, city, county, precinct, zip code + 4, and their equivalent geocodes;

·       All elements of dates including birth date, admission date, discharge date, date of death; and all ages over 89 and all elements of dates (including year) indicative of such age, except (1) for birth dates, just an age and/or year of birth or (2) that such ages and elements may be aggregated into a single category of age 90 or older;

·       Telephone numbers;

·       Fax numbers;

·       Electronic mail addresses;

·       Social Security numbers;

·       Medical record numbers;

·       Health plan beneficiary numbers;

·       Account numbers;

·       Certificate/license numbers;

·       Vehicle identifiers and serial numbers, including license plate numbers;

·       Device identifiers and serial numbers;

·       Web Universal Resource Locators (URLs);

·       Internal Protocol (IP) address numbers;

·       Biometric identifiers, including finger and voice prints;

·       Full face photographic images and any comparable images; and

·       Any other unique identifying number, characteristic, or code.

6.4.     Client shall notify Nielsen immediately of any opt-out requests that it receives from any Nielsen Participants.

6.5.     Client shall ensure that all industry standard security, data control/access and storage practices are current and complied with in connection with the exercise of its rights and performance of its obligations hereunder.

6.6.     Client shall retain for a period of twelve (12) months after the completion of the Client Survey, and provide to Nielsen upon its request, all survey path and other survey experience information for each respondent within the Nielsen Sample directed to the Client Survey.

7.         TERMINATION.  Either party (the “Terminating Party”) may, upon written notice to the other party (the “Defaulting Party”), immediately terminate an Accepted Proposal upon the occurrence and continuance of any of the following events, after providing the applicable notices and after the expiration of any applicable period of cure: (i) the bankruptcy, insolvency or receivership of the Defaulting Party, or a general assignment by the Defaulting Party for the benefit of its creditors; provided, that if any of such actions contemplated by this clause (i) are undertaken on an involuntary basis (as that term is generally used in bankruptcy), such involuntary action has not been dismissed or stayed within forty-five (45) days from the inception of any such involuntary action; (ii) the dissolution, liquidation or discontinuance of business operations by the Defaulting Party; or (iii) the failure of the Defaulting Party to remedy its material breach of or material default under the terms and provisions of these Terms after expiration of fifteen (15) days from the date of notice thereof by the Terminating Party, specifying in detail the nature of such material breach or default, other than a failure to pay any sums due hereunder as to which the Defaulting Party shall have failed to pay within five (5) days from the date of such notice.  Upon termination of an Accepted Proposal for any reason, all fees for services rendered prior to the date of termination shall be paid in full immediately to Nielsen.  The provisions of these Terms that by their nature should survive termination of an Accepted Proposal shall survive, including, but not limited to, provisions related to ownership, indemnification, limited liability and confidentiality.

8.         NO RESTRICTION.  These Terms shall not operate to prohibit either of the parties from furnishing to any other person or entity, any type of information, data or services similar or related to that which is furnished hereunder.

9.         OWNERSHIP.

9.1.     Nielsen shall retain sole and exclusive ownership of, and rights to use, the members within the Nielsen Sample, all Respondent Identifiable Information related thereto, and shall have exclusive rights to contact and communicate with, and shall have exclusive ownership and use of all names, data and information collected from or related to, members within the Nielsen Sample.  Notwithstanding the foregoing, information collected by Client, exclusive of any Respondent Identifiable Information, through a Client Survey shall constitute the property of Client.  Further, each party shall retain sole and exclusive ownership of, and rights to use, its proprietary technologies related to its performance hereunder.

9.2.     Any use of Nielsen’s name or trade/service marks must be in a form pre-approved by Nielsen in writing and any such use shall inure to the exclusive benefit of Nielsen.  Client’s use in such pre-approved form shall be deemed to be pursuant to a non-transferable license limited to use solely for purposes contemplated by these Terms.  Nielsen may modify guidelines regarding the use of its name and marks from time to time by advising Client of such modification, and Client shall immediately comply with such revised guidelines.  Upon termination of an Accepted Proposal for any reason, such non-transferable license shall immediately terminate and, accordingly, Client shall immediately cease all use of the Nielsen name and marks.

10.      AUDIT RIGHTS.  Nielsen reserves the right, at any time upon prior written notice and during normal business hours, to audit Client’s adherence to these Terms.  Nielsen shall bear its own costs of any audit, but shall not be responsible for costs associated with Client’s participation in any such audit.   Client agrees to cooperate with respect to the undertaking of any such audit.  Any fee errors determined as a result of any such audit shall be immediately corrected and any amounts due resulting from errors shall be paid (or refunded as the case may be) immediately. 

11.      CONFIDENTIALITY

11.1.   If the parties have entered into a mutual confidentiality agreement or non-disclosure agreement (an “NDA”), then the parties acknowledge that they are subject to the terms of the NDA and that these Terms and all information provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), including, without limitation, details relating to the Client Survey and members within the Nielsen Sample (collectively, “Confidential Information”), shall be subject to the terms of the NDA. The parties further acknowledge that, notwithstanding the term set forth in the NDA, the NDA shall continue in full force and effect until the later of (a) the term specified in the NDA and (b) the date three (3) years following the termination of the Accepted Proposal; provided, however, the confidentiality obligations set forth in the NDA shall survive indefinitely with respect to any Respondent Identifiable Information.

11.2.   If a mutual NDA does not exist between the parties as of the date hereof, then the following terms shall apply. The Receiving Party shall maintain the Confidential Information of the Disclosing Party in strict confidence and shall not disclose such Confidential Information to any third party or use such Confidential Information for any purpose other than in connection with the performance of its obligations under these Terms, without the express, prior written permission from the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party as required to comply with binding orders of governmental entities that have jurisdiction over the Receiving Party, provided that the Receiving Party (i) gives the Disclosing Party prior written notice sufficient to allow the Disclosing Party to seek a protective order or other appropriate remedy; (ii) discloses only such information as is required by the governmental entity; and (iii) uses reasonable efforts to obtain confidential treatment for any information so disclosed.  Confidential Information shall not include any information which, as demonstrated by competent proof, (a) is or becomes publicly known through no wrongful act or failure to act on the part of the Receiving Party; (b) is known by the Receiving Party without any proprietary restrictions at the time of receipt of such information from the Disclosing Party or becomes rightfully known to the Receiving Party without proprietary restriction from a source other than the Disclosing Party or its representatives; (c) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s information; or (d) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, and provided that the Receiving Party promptly notifies the Disclosing Party of the pending disclosure in writing so that the Disclosing  Party may attempt to obtain a protective order.  The Receiving Party acknowledges the confidential, proprietary and secret character of the Confidential Information of the Disclosing Party and agrees that the Confidential Information of the Disclosing Party is the sole, exclusive and extremely valuable property of the Disclosing Party.  Upon termination of the Accepted Proposal for any reason, all Confidential Information of the Disclosing Party shall be immediately returned to the Disclosing Party or destroyed, at the Disclosing Party’s sole election.  The Receiving Party shall certify that it has returned or destroyed all Confidential Information of the Disclosing Party, as the case may be, upon the Disclosing Party’s request.  The Receiving Party agrees that its confidentiality obligations set forth in this Section 11.2 shall continue in full force and effect until the date three (3) years following the termination of the Accepted Proposal; provided, however, such confidentiality obligations shall survive indefinitely with respect to any Respondent Identifiable Information.

12.      REPRESENTATIONS AND WARRANTIES.  Each party represents and  warrants that: (i) it is now in compliance and shall at all times continue to comply with all federal, state, and local laws, rules, regulations as in effect from time to time, including, without limitation, all privacy laws and regulations, applicable to its performance hereunder; (ii) its performance hereunder shall be performed by competent personnel with appropriate skills and experience in a professional and workmanlike manner and in accordance with generally accepted industry and legal standards; (iii) its performance hereunder shall not infringe upon or misappropriate any intellectual property rights belonging to a third party; (iv) there is no impediment or restriction, legal or otherwise, that limits, prohibits or prevents it from performing hereunder; (v) these Terms are, and shall remain, a valid and binding obligation of such party, enforceable in accordance with its terms, as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally; (vi) it has and will maintain all rights, licenses, permits and consents necessary to comply with these Terms, and perform its obligations hereunder; and (vii) it is, and at all times during the term of the Accepted Proposal shall remain, an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.  EXCEPT AS EXPLICITLY SET FORTH HEREIN, EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

13.      INDEMNIFICATION

13.1.   To the fullest extent permitted by law, Client shall reimburse, indemnify, defend, and hold harmless Nielsen, its subsidiaries and affiliates and each of its subsidiaries’ and affiliates’ present, former, and future shareholders, employees, officers, and directors from and against all loss, damage, expense (including reasonable attorneys’ fees and expenses) and penalty (collectively, “Losses”) related to any claim or action commenced, filed, claimed and/or asserted by a third party or third parties (each, a “Claim”) arising out of or in connection with: (a) the willful misconduct or grossly negligent acts or omissions by Client or its employees or agents, including, without limitation, personal injury and death claims; (b) the breach of these Terms by Client or its employees or agents; or (c) any matter relating to a Client Survey, including without limitation, a Nielsen Participant’s participation therein.

13.2.   Nielsen agrees to timely advise Client of any Claim; provided that Nielsen’s failure to do so shall not relieve Client of its indemnification obligations hereunder unless its ability to defend the Claim is materially prejudiced as a result of such failure.  Client shall have sole control of and must defend all Claims brought against the Nielsen and must pay all costs and expenses incidental to them; provided, Nielsen shall also have the right, but not the obligation, at its expense, to participate in the defense of any such Claim through counsel of its own choosing.  Client shall not enter into any settlement agreement or otherwise agree to the entry of any order or judgment that requires Nielsen to take any specific action, admit liability or pay any sum of money out of its own resources without Nielsen’s prior written approval.

13.3.   In the event that Nielsen or any of its employees, agents or subcontractors is served with or 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 that Nielsen renders or delivers to Client hereunder, then Client shall bear and/or reimburse Nielsen for all costs and expenses, including, but not limited to, reasonable attorney’s fees, staff time and costs incurred related to Nielsen’s response, compliance with or resistance thereto, except to the extent directly caused by the gross negligence, willful misconduct or breach of these Terms by Nielsen.

14.      LIMITATION OF LIABILITY.  In no event shall either party be liable to the other party for any consequential, indirect, exemplary, special, incidental or punitive damages arising out of the activities contemplated by these Terms, including, without limitation, lost profits, even if such damages are foreseeable or the damaged party has been advised of the possibility of such damages and regardless of whether any such damages are deemed to result from the failure or inadequacy of any exclusive or other remedy.  Further, in no event shall Nielsen’s liability to the Client exceed the total amount of fees paid by Client to Nielsen with respect to the Accepted Proposal out of which the liability arose; provided that such limitation of liability shall not apply to (a) liability arising out of violation of applicable law, or (b) liability for death, personal injury or property damage caused by its negligence or willful misconduct.  

15.      PUBLICITY.  Except with the prior written consent of the other party, neither party shall issue a press release or otherwise publicize these Terms or the Accepted Proposal, including the transactions contemplated hereby.

16.      FORCE MAJEURE. Neither party shall be liable for any delay or failure in the performance of any of its obligations hereunder due to events outside its reasonable control (a “Force Majeure Event”), under the condition that such party (a) could not have prevented the delay or failure by using reasonable and prudent foresight, including the implementation of reasonable precautions; (b) gives notice of the occurrence of the Force Majeure Event to the other party by telephone (and confirms the same in writing within 24 hours) as soon as reasonably practicable after becoming aware of the Force Majeure Event; and (c) uses all reasonable efforts to minimize the consequences of the Force Majeure Event and re-commences performing such obligations once the Force Majeure Event no longer exists.

17.      EQUITABLE RELIEF.  The parties agree that irreparable damage may occur in the event that any of the provisions of these Terms were not performed in accordance with their specific terms or were otherwise breached.  Accordingly, it is agreed that the parties shall be entitled to seek an injunction or injunctions to prevent breaches of these Terms without the necessity of posting bond or other security and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.

18.      ASSIGNMENT.  Neither party may assign its rights or obligations under these Terms without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, either party will have the right to assign its rights or obligations under these Terms without the prior written consent of the other party in the event of a transfer to an affiliate or by operation of law in connection with a change in control.  Subject to the foregoing limitations upon assignment, the rights and obligations of the parties hereunder shall inure to the benefit of, and shall be binding upon their respective successors and assigns.

19.      INDEPENDENT CONTRACTOR.  Nothing in these Terms shall be construed as creating a partnership or agency relationship between the parties. Neither party shall have the authority to bind the other party to any contract or agreement.

20.      NOTICES.  All notices and other communications hereunder shall be in writing and shall be deemed to be given if delivered personally or mailed by registered or certified mail (return receipt requested), postage prepaid, or deposited for overnight delivery with a reputable overnight delivery service, such as Federal Express, to the parties at their respective addresses set forth in the Accepted Proposal (or at such other address for the party as shall be specified by like notices; provided that notices of a change of address shall be effective only upon receipt thereof).

21.      GOVERNING LAW.  These Terms shall be governed by and construed in accordance with the laws of the State of New York, exclusive of its conflict of law rules.  With respect to all matters related to these Terms, the parties consent to exclusive jurisdiction of the State and Federal courts in the State of New York. 

22.      MISCELLANEOUS.   These Terms contain the entire agreement between the parties with respect to the matters covered herein.  These Terms cannot be modified or amended except in writing signed by both parties. These Terms shall supersede the terms and conditions of any purchase orders or other documents issued by Client with respect to the transactions contemplated herein. If any term or provision of these Terms shall be found by a court of competent jurisdiction to be illegal or otherwise unenforceable, that finding shall not invalidate the whole of these Terms, but only such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreement of the parties. The failure of any party to insist upon strict adherence to any term of these Terms on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of these Terms.  To be in force and enforceable, any waiver must be in writing and must be signed by both parties.

Additional Terms and Conditions – Nielsen Branded Segmentation Products and Services

The Client and Nielsen acknowledge that the following terms and conditions (these “Additional Terms”) apply to and are incorporated as part of the Accepted Proposal.  In the event of any conflict between the terms of the Terms, the Additional Terms and the Accepted Proposal, the conflict shall be resolved in accordance with the following order of precedence (from highest to lowers):  the Additional Terms; the Accepted Proposal; the Terms.

1.             License.  Nielsen grants Client a limited, non-exclusive license to use internally the Nielsen branded segmentation products and services as identified in the Accepted Proposal, including, without limitation, PRIZM, P$YCLE, ConneXions, Income Producing Assets and Net Worth (the “Licensed Materials”).  Licensed Materials consist of trade secrets and other confidential and proprietary information and technology and are the sole and exclusive property of Nielsen and/or third party suppliers that have licensed Nielsen to use and sublicense portions of the Licensed Materials (collectively, “Third Party Licensors”).

2.             Limited Excerpts.  Subject to any restrictions set forth in the Accepted Proposal, Client may include limited excerpts of the Licensed Materials (“Limited Excerpts”) in its reports and analyses, which Client may disclose to third parties in support or furtherance of Client’s efforts to market its own products or services.  Client also may include Limited Excerpts in trade and consumer advertising copy, annual reports, reports to the financial community, and releases to the media for the purpose of corporate image-building or product promotion.  Limited Excerpts may not be of such quantity or quality as to be separately marketable by Nielsen.  Client may not incorporate Limited Excerpts into its own products or services without an additional license grant from Nielsen.  In all cases, Limited Excerpts disclosed to third parties must be accurately labeled; not be presented in a misleading manner; and cite Nielsen and any applicable Third Party Licensors specified in the Accepted Proposal, as well as the dates of any databases referenced.  Client may enlist the services of a third party processor to perform services utilizing the Licensed Materials on Client’s sole behalf, provided that such third party has executed a third party processor agreement with Nielsen.  No portion of the Licensed Materials (including Limited Excerpts) may be used or disclosed in any manner that is competitive with the business of Nielsen.  Any use or disclosure of any portion of the Licensed Materials other than as permitted by this license is prohibited without Nielsen’s prior written consent.  Any unauthorized disclosure or distribution of the Licensed Materials will cause irreparable harm and entitle Nielsen and/or such Third Party Licensors to immediate injunctive relief.

3.             Use Restrictions.  Except as expressly authorized in the applicable Accepted Proposal, Client will not:

(a)       Copy, reproduce or replicate the Licensed Materials, with the exceptions of: (i) one copy into computer memory for execution; (ii) up to three copies for backup purposes; and (iii) Limited Excerpts, as specified above, which may be reproduced as needed;

(b)       Distribute the Licensed Materials by any means or allow any third party to access the Licensed Materials (except as expressly set forth above), or place any portion of the Licensed Materials, including Limited Excerpts, on any website or retrieval system that may be accessed outside of Client’s immediate organization, without Nielsen’s prior written consent; 

(c)       Market, license or sell any derivative work based upon any portion of the Licensed Materials;

(d)       Use or store the Licensed Materials in a relational database containing various data designed for on-going querying and reporting (“Data Warehouse”) unless subject to a separate Data Warehouse license in the Accepted Proposal;

(e)       Reverse engineer, decompile, decode or attempt to re-identify an individual from any portion of the Licensed Materials;

(f)       Use the Licensed Materials to prepare, verify or modify any directory or mailing/marketing list which is sold, rented or otherwise provided to third parties not acting on Client’s behalf;

(g)       Use any portion of the Licensed Materials for purposes of determining adverse terms and conditions of or eligibility of an individual for employment, credit, healthcare treatment, insurance (including, but not limited to health insurance), or for any purpose for which a consumer report may be used under the Fair Credit Reporting Act;

(h)       Use any portion of the Licensed Materials in any way that could result in disparate impact or treatment under the Equal Credit Opportunity Act or the Fair Housing Act;

(i)        Use the Licensed Materials in a way that negatively characterizes any ZIP, ZIP+4, ZIP+6 or household or exclude any ZIP, ZIP+4, ZIP+6 or household in a way that could result in disparate impact or treatment on a prohibited basis under the Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) and Regulation B under that Act or the Fair Housing Act (42 U.S.C §§ 3601 et seq.);

(j)       Use the names, trademarks or logos of Nielsen or any Third Party Licensor in any advertising or promotional material that uses or references any portion of the Licensed Materials, without prior written consent, except as expressly set forth above;

(k)      Use the Licensed Materials in any legal proceeding without the prior written consent of Nielsen, except in the case of a court order and then only after Client’s having notified Nielsen in sufficient time as to allow Nielsen to seek protection.

4.             Compliance with Laws.  All use of the Licensed Materials or Limited Excerpts by or on behalf of Client must comply with the DMA Guidelines for Ethical Business Practice (www.thedma.org) and all applicable federal, state and local laws.

5.             Indemnification By Client.  Client will indemnify and hold Nielsen and its affiliates harmless from any and all loss, damage, liability and costs, including attorney’s fees, resulting from any claim or demand by third parties, arising from any misuse, disclosure or misrepresentation by Client with respect to the Licensed Materials or Limited Excerpts.

6.             Segmentation Special Conditions: Client may not disclose to any third party the unique one-for-one one segmentation assignment (including, without limitation, PRIZM, P$YCLE, ConneXions, Income Producing Assets, Net Worth) for any specific level of geography:  household, ZIP+6, ZIP+4, Block Group, ZIP, etc. (e.g., identifying a Block Group as belonging to a specific segment). The foregoing does not limit Client’s right to produce and disclose, as Limited Excerpts, aggregations of such segment assignments (i.e., created by using not less than 3 segments).  Client is expressly prohibited from using segment assignments (a) in conjunction with Internet cookies; (b) to compile a directory or cross reference file(s) that disclose the unique one-for-one segment assignment for a geographic unit; (c) in an advertising application via mobile devices, the Internet or cable set-top boxes without an additional specific license grant from Nielsen; or (d) for the purpose of selecting geographies for online advertising without an additional specific license grant from Nielsen.