GENERAL TERMS & CONDITIONS FOR NIELSEN AD INTEL SERVICES (SOUTH KOREA)
Update: July 2024
These general terms and conditions (“Terms”) apply to the provision and use of Nielsen Ad Intel Local and Nielsen Ad Intel International Services (“Services”) identified in order forms (each an “Order Form”). Each Order Form is only entered into by the Nielsen and Client entities identified in such an Order Form, and does not vest rights in any parent, subsidiary or affiliate, unless specifically stated otherwise. Each signed Order Form, together with these Terms is referred to as the Agreement.
ARTICLE 1. SCOPE OF SERVICE
1.1 Services. Services are based on the monitoring of commercial advertising activity and expenditures in various media as selected and monitored by Nielsen. The data and information included in Services are referred to as “Nielsen Information”. Nielsen Information may be accompanied by publicly available commercial creatives such as images of Client’s competitors’ advertisements (“Creatives”). Nielsen Information and Creatives shall be delivered electronically by one or more Technology Services as set forth in the applicable Order Form. “Technology Services” are Services involving the licensing of technology including Internet portals, access and analytic tools, licensed systems, templates, software and related manuals provided by Nielsen to Client. Client shall maintain, and upgrade if necessary, its hardware, operating systems and third party software consistent with any requirements and/or changes to Technology Services, and Nielsen shall provide Client with notice of such requirements and/or changes for the operation of Technology Services prior to implementation. Where Nielsen issues Client with usernames and/or passwords in order to access all or any of the Services, Client shall treat the usernames and passwords as confidential and not disclose them to any other third party and shall be responsible for ensuring its designated users comply with these Terms. Client shall use reasonable endeavours to prevent unauthorised access to Technology Services. Client shall inform Nielsen of any idle user accounts (e.g. accounts assigned to former Client employees or not used for a period longer than six (6) months). A user account may not be shared by more than one (1) user concurrently/one designated individual unless otherwise agreed in writing with Nielsen.1.2Ownership and License. Nielsen does not sell Services to Client. Nielsen retains all ownership rights, including all intellectual property rights, in and to Services, Nielsen Information and Technology Services provided hereunder. Client is hereby granted a limited, non-exclusive, non-transferable, non-sublicensable license to use Services as set forth in these Terms during the term specified in the applicable Order Form.
ARTICLE 2. FEES AND TAXES
2.1 Fees. Client agrees to pay the fees set forth in the applicable Order Form (“Fees”). Such Fees are payable within thirty (30) days of the date of the invoice. Client agrees to pay interest at 1.5% per month (or, if lower, the maximum legal rate) from the date originally due until payment is received by Nielsen on all amounts thereafter.
2.2 Taxes. Fees are exclusive of all taxes. Client is responsible for all value-added, goods and services, sales, use and similar taxes due with respect to Services. Client agrees to cooperate with Nielsen in connection with its compliance with applicable tax regulations. To the extent that Client is required by law to withhold or deduct any applicable taxes from payments to Nielsen, Client shall use reasonable endeavours to minimize any such taxes to the extent allowed by law or treaty, and Client shall furnish Nielsen with such evidence as may be required by relevant taxing authorities to establish that such tax has been paid so that Nielsen may claim any applicable credit. Upon written request from Client, Nielsen shall provide any relevant exemption certificates, forms or other information which allows Client to reduce the required withholding tax/deduction and allow Client reasonable time to furnish the original tax withholding/deduction receipts issued by the relevant taxing authority evidencing such tax payment.
ARTICLE 3. USE OF SERVICES
3.1 Use of Services. Services and Nielsen Information are the confidential and proprietary information of Nielsen. Except as set forth in the applicable Order Form, Client may only use the Services for Client’s internal research and reference purposes in the country(ies) specified in the applicable Order Form, or if none are specified in the Order Form, the country identified as the Client’s address in the Order Form (e.g. Client with a UK address can use the Services in the UK) (“Territory”) and may only publish or disclose Nielsen Information with Nielsen’s prior written consent. Any disclosure must be accurately sourced to Nielsen, not claim Nielsen as the source of any independently generated information, and not be presented in a false, disparaging or misleading manner. Services are not intended as a substitute for financial, investment, legal, business or other professional advice and Client remains solely responsible for Client’s decisions, actions, use of Services and compliance with applicable laws.
3.2 Restrictions. Except as set forth in the applicable Order Form, Client shall not, directly or indirectly, (i) decompile, reverse engineer, disassemble, modify, adapt or translate any Service or Nielsen Information, (ii) reproduce, republish, sublicense, distribute, dispose of, resell, rebroadcast, commercially exploit or disclose to any third party, (iii) remove any proprietary or copyright legend therefrom (iv) use Services for any Client offering or product development or to create stand-alone aggregated reports for use outside of the Client entity specified in the Order Form or outside of the Territory, (v) use Services to build domestic or international databases or to otherwise create or enhance any service that could compete with any of Nielsen’s services or for data modelling, without a separate written agreement from Nielsen or (vi) use the Services for any other purpose not set forth in the applicable Order Form without Nielsen’s prior written consent.
3.3 Third Parties. Except as set forth in the applicable Order Form, Client shall not provide Nielsen Information to any third party (including but not limited to, its group companies, consultants, software solutions providers, third party processors, computer service bureaus, value added processors, data modeling or awareness tracking companies and/or media audit companies) unless, prior to accessing such Nielsen Information, the third party shall have entered into Nielsen’s then standard form of third party access agreement for such third party, as established by Nielsen in its sole discretion. At its sole discretion, Nielsen may decline to enter into such agreement or grant a third-party access or rights to Nielsen Information and Nielsen reserves the right to charge for such access. Nielsen is not responsible for the accuracy of information produced by such third party from Nielsen Information.
3.4 Legal Proceedings. No Services or Nielsen Information may be used in any legal, government or administrative proceeding. If such use is compelled by legal process, Client shall promptly give Nielsen advance written notice and, before such use, obtain confidentiality agreements, protective orders and evidentiary stipulations acceptable to Nielsen and shall limit the use to the minimum necessary to comply with such legal requirements.
3.5 Proprietary Information. Nielsen Information contains Nielsen proprietary information which may include (i) advertiser and program codes; (ii) product classifications; and (iii) brand/parent company hierarchies. Client shall not use these proprietary codes, classifications and/or hierarchies for any purposes other than to tabulate Nielsen Information, solely in conformance with these Terms.
ARTICLE 4. CHANGES TO SERVICES AND CHARGE
4.1 Changes to Service. In the event of a change to Services or Nielsen Information, Nielsen may, upon thirty (30) days’ prior written notice, adjust the Fees therefor. Such Fee change shall become effective on the date stated in Nielsen’s notice unless, within fifteen (15) days after such notice, Client notifies Nielsen in writing of its refusal to accept the Fee change, in which event Client’s license to Services and Nielsen Information shall terminate as of the effective date of the change; provided, however, that Nielsen may, in its sole discretion, elect to rescind the Fee change, in which case the Agreement shall continue in full force and effect.
4.2 Third Party Data. Nielsen Information is based, in part, on data or information from third parties. Nielsen may discontinue furnishing Nielsen Information or any portion thereof to the extent any such third party data or information ceases to be available to Nielsen for any reason, in which case the applicable Fees shall be adjusted on a pro-rata basis.
ARTICLE 5. WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION
5.1 Disclaimer of Warranties. Nielsen Information represents Nielsen’s opinion based on its analysis of data and information (including but not limited to panel data and other sources that may not be under Nielsen’s control) and Nielsen cannot guarantee the accuracy, completeness or reliability of Nielsen Information. Without limiting the foregoing, Nielsen disclaims, and Client hereby waives, any and all warranties, whether express or implied, to Client or to any third party, concerning Services and Nielsen Information provided hereunder including, but not limited to, any warranties of merchantability, quality or fitness for any particular purpose and non-infringement. The foregoing disclaimer shall not act as or constitute an admission by Nielsen that any Services or Nielsen Information constitute goods, commodities or tangible personal property under applicable law.
5.2 Limitation of Liability. Nielsen shall refund the Fees paid for Services it fails to provide and shall use reasonable efforts to correct errors Client identifies in Services. If Nielsen does not provide a Service or is unable to correct erroneous Nielsen Information or Technology Services, it shall reimburse Client for Fees paid for the affected part of the Service. Subject to the foregoing and to the extent permitted by applicable law, Nielsen’s total aggregate liability for direct loss, damage or expense under or in connection with the Agreement whether in contract, tort (including negligence) or otherwise shall be limited to an amount equal to the annual Fees paid by the Client under the Agreement and Nielsen shall not otherwise be liable, in contract, tort (including negligence) or otherwise, for any direct, indirect, consequential or other loss, expense or damage of any kind. Unless otherwise prohibited by applicable law, neither party shall be liable for any claim brought after the shorter of one (1) year after the cause of action has accrued or more than two (2) years after the termination of the Agreement. Nothing in these Terms shall exclude or limit a party’s liability for fraud, death or personal injury caused by its negligence or any other liability that may not be legally excluded or limited.
5.3 Indemnity by Client. Client agrees to defend, indemnify and hold Nielsen harmless from and against all claims, damages, losses or expenses (including attorneys’ fees) arising, directly or indirectly, from (i) Client’s permitted disclosure of Nielsen Information, or (ii) Client’s disclosure or use of Services or Nielsen Information contrary to the Agreement.
5.4 Indemnity by Nielsen. Nielsen agrees to defend, indemnify and hold Client harmless from and against all claims, damages, losses or expenses arising from any claim brought against Client that Client’s permitted use of Nielsen Information or Technology Services infringe any copyright, trade mark or trade secret of the claimant; provided, however, that Client makes no admission regarding such claim, 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. Nielsen may require Client to cease using any infringing Nielsen Information or Technology Services. This clause sets out Nielsen’s entire liability for any infringement of intellectual property.
ARTICLE 6. TERM, SUSPENSION AND TERMINATION
6.1 Term. Unless terminated earlier in accordance with this Article 6, the Agreement (and the Services set forth therein) shall remain in effect for the term specified in the applicable Order Form.
6.2 Upon Termination or Expiration. Upon termination or expiration of the Agreement, (i) Client shall discontinue use of all Services and return Nielsen Information provided hereunder to Nielsen, and (ii) all rights and licenses granted to Client to use Services and Nielsen Information shall cease and terminate immediately. In lieu of return, Client may remove Services and Nielsen Information from its systems and records, destroy tangible forms thereof, and certify such removal/destruction in a written certification satisfactory to Nielsen.
6.3 Partial Termination of Services Due to Third Party Activity. In the event Nielsen Information or a Service is based on data or information from third parties, Nielsen may discontinue furnishing such Nielsen Information or Service or any portion thereof to the extent any such third-party data or information ceases to be available to Nielsen for any reason.
6.4 Suspension of Services. The provision of Services or licenses granted, or any portion thereof, may be suspended in whole or in part by Nielsen at any time in the event that Client fails to perform its payment or other obligations set forth herein. Such suspension of Service shall not suspend or otherwise affect Client’s payment obligations set forth herein.
6.5 Termination. The Agreement and any or all of the Services and/or Nielsen Information or licenses provided thereunder may be terminated or suspended by Nielsen on any date specified by Nielsen if (i) Client has failed to perform any one or more of its payment or other obligations hereunder, (ii) Nielsen is or shall become unable for any reason beyond its control to perform its obligations hereunder, or (iii) Nielsen is terminating such Service to all clients subscribing to the same or similar Service. Each party may terminate the Agreement in the event of a material breach by the other party which remains uncured after thirty (30) days following written notice, or in the event the other party becomes the subject of a proceeding in bankruptcy/insolvency or its equivalent.
ARTICLE 7. CONFIDENTIALITY
7.1 Nielsen and Client acknowledge that Confidential Information may be disclosed to the other party during the term of the 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 these Terms, as well as customer lists, marketing and product plans, technology, systems, business processes, and any other financial, sales, marketing or business information that are 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.
7.2 Each party shall 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, if requested by the other party, shall destroy or return to the other party all Confidential Information upon termination or expiration of the Agreement.
ARTICLE 8. GENERAL PROVISIONS
8.1 Survival. All obligations concerning confidentiality, liability, indemnification and uses of Nielsen Information shall survive the termination of the Agreement.
8.2 Force Majeure. Nielsen shall not be obligated to furnish any Nielsen Information and/or Service when conditions outside Nielsen’s control are not such as to permit Nielsen techniques to produce measurements in accordance with Nielsen’s standards. In the event either party is delayed in or prevented from performing any act required hereunder (excluding the obligation to make payments when due) due to failure of any communication system or on- or off-line computing equipment, labor troubles, inability to procure materials, governmental or judicial orders, acts of God, epidemic, acts of terrorism, weather conditions, third party interference or other similar reason beyond its control, then performance of such act shall be excused for the period of such delay.
8.3 Independent Contractor Relationship. The parties to the Agreement are independent contractors and neither shall have authority to bind or obligate the other.
8.4 Subcontracting. Nielsen may use subcontractors for the performance of its obligations under the Agreement; provided, however, that such subcontractors are bound by strict confidentiality obligations. Nielsen shall be fully responsible for subcontractors’ performance.
8.5 Notices. Any notice or request given hereunder shall be in writing and deemed given on the date received when delivered personally or by nationally recognized delivery service.
8.6 Assignment. The Agreement is for the benefit of and binding on the parties and their successors and assigns and may not be assigned by either party without the prior written consent of the other, except that Nielsen may, upon notice, assign or otherwise transfer its rights and obligations under the Agreement to an affiliate or to a successor to its business.
8.7 Injunctive Relief. Any breach of the use of services provisions of the Agreement may cause irreparable harm to Nielsen, for which Nielsen’s remedies at law shall not be adequate. Nielsen shall be entitled to injunctive relief without having to prove irreparable injury, lack of an adequate remedy at law, posting bond or waiving any other rights.
8.8 Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable under applicable law, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement. If any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
8.9 Further Assurance. Each party shall, at its own cost: (i) execute any document and do anything else that the other party reasonably requires to give effect to the Agreement and the transactions intended to be effected by it; and (ii) use reasonable endeavours to procure that any relevant third party does the same.
8.10 Governing Law. The Agreement shall be governed by the laws of the Republic of Korea (South Korea) without regard to its choice of law provisions. The UN Convention on Sales of Goods is expressly excluded. The parties agree to the exclusive jurisdiction of the competent courts of Seoul for purposes of determining all disputes arising in connection with the Agreement (including non-contractual disputes or claims) and hereby waive all objections to the jurisdiction of those courts.
8.11 Entire Agreement; Modification or Amendment. The Agreement contains the entire understanding of the parties with respect to the provision of Services furnished thereunder and supersedes all previous discussions and agreements relating to such Service. The Agreement may not be modified or amended except in a writing executed by the parties. Any “purchase order” or similar document received from Client shall be for billing reference only and, notwithstanding any terms and/or conditions set forth therein, such document shall not take precedence over the Agreement.