Advertising Intelligence Ltd (“nielsen”)

Terms & Conditions for International Advertising Intelligence Services

Last Updated: 22 October, 2019

These Terms and Conditions (“Terms”) shall apply to all international advertising intelligence services performed by Nielsen (the “Services”) as identified in proposals or schedule of work entered into by Nielsen and Client (each a “Project Proposal” and together with these Terms, each a “Project Agreement”).  For the purposes of each Project Agreement, “Nielsen” means Advertising Intelligence Limited and “Client” means the entity contracting with Nielsen to receive the Services thereunder. 

Article 1. Scope of Service

1.1 Services; Ownership and Licence.  Nielsen shall deliver the Services set forth in an applicable Project Agreement for use solely by Client in accordance with such Project Agreement.  The data and information included in Services are referred to as “Nielsen Information”. Client is hereby granted a limited, non-exclusive license to use the Services (unless otherwise provided in a Project Agreement) as set forth in these Terms during the term specified in the Project Agreement.  Client agrees that Nielsen retains ownership of the Nielsen Information (and any intellectual property rights therein) and Nielsen does not sell but licenses the Nielsen Information to Client on a non-exclusive basis. 

For the purpose of these Terms, “Technology Services” are Services involving the licensing of technology including Internet portals, access and analytic tools, licensed systems, templates, software and related materials (including delivery media, manuals, updates and new versions) 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 the 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 user names and passwords in order to access all or any of the Services, Client shall treat the user names and passwords as confidential and not disclose it to any other third party. Client shall use its best endeavours to prevent unauthorised access to its account. 

Article 2. Fees and Taxes

2.1 Fees.  Client agrees to pay the fees set forth in the Project Agreement (“Fees”).  Such Fees are due when invoiced and 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. Client is responsible for all value-added, goods and services, sales, use and similar taxes due with respect to the Services.  Fees payable pursuant to an applicable Project Agreement are exclusive of all taxes. 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 will use reasonable commercial efforts to minimize any such taxes to the extent allowed by law or treaty, and Client will 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 Uses of Services.  Except where Nielsen has given its consent to disclosure to the Client’s advertising and communication agencies in accordance with clause 3.2 below, Client may only use the Services for Client’s internal research and reference purposes and may not copy, reproduce, republish, resell, rebroadcast, commercially exploit or disclose the Nielsen Information to any third party.

3.2 Disclosure of Services. Client may allow access to the Nielsen Information to its marketing communication agencies and media agencies provided that Nielsen has given its prior written consent to such disclosure. Client shall procure and be responsible for the compliance of the Terms by each agency. 

3.3 Restrictions. Client shall not decompile, reverse engineer, disassemble, sublicense, distribute, dispose of, modify, adapt or translate any Service or Nielsen Information, remove any proprietary or copyright legend therefrom or use the Services for any other purpose not expressly set out in the Project Agreement without the prior written approval of Nielsen. 

3.4 Third Parties.  Except as provided in Section 3.2 above, Client shall not provide the Nielsen Information to any third party, including but not limited to, consultants, software solutions providers, third party processors, computer service bureaus, value added processors, data modelling 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 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.

3.5 Legal Proceedings.  No Services or Nielsen Information may be used in any legal 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.

3.6 Changes to Service.  Nielsen may, from time to time, in its sole discretion, make enhancements, adjustments or other changes applicable generally to all clients of the same service (“Change”) to a Service or portion thereof, including, without limitation, formats, schedules, specifications and/or techniques, where such changes are applicable generally to all clients using the Service. 

Article 4. Warranties, Limitation of Liability and Indemnification

4.1 Disclaimer of Warranties.  Client recognizes that Nielsen Information represents Nielsen’s opinion based on its analysis of data and information, including data from sample households and other sources that may not be under Nielsen’s control, and that 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 THE SERVICES AND NIELSEN INFORMATION PROVIDED HEREUNDER INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT.  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. 

4.2 Limitation of Nielsen’s Liability. Nielsen’s total aggregate liability for direct loss, damage or expense under or in connection with a Project 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 Project Agreement. Nielsen will 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 1 year after the cause of action has accrued or more than 2 years after the termination of the applicable Project Agreement. Nothing in these Terms shall exclude or in any way 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. 

4.3 Indemnity.  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 pursuant to Section 3.2 or (ii) Client’s disclosure or use of the Services or Nielsen Information contrary to the terms of the applicable Project Agreement. 

Article 5. Term, Suspension and Termination

5.1 Term. Unless terminated in accordance with the terms hereof or unless otherwise provided in a Project Agreement, the term of each Project Agreement, the licenses granted thereby and the Services rendered thereunder shall commence on the date stated in the relevant Project Agreement and shall continue for an initial term specified in the Project Agreement ( “Initial Term”) and thereafter shall automatically renew for subsequent 12 month periods (each a “Renewal Term”) including a standard annual increase to cover the prevailing inflation rate.

5.2 Return of Nielsen Information upon Termination.  Upon termination or expiration of the applicable Project Agreement, (i) Client shall discontinue use of all Services and return to Nielsen the Nielsen Information provided hereunder, and (ii) all rights and licenses granted to Client to use the Services and Nielsen Information shall cease and terminate immediately.  In lieu of return, Client may remove the 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. 

5.3 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. 

5.4 Suspension of Services.  The provision of Services or licenses granted, or any portion thereof, may be suspended 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.

5.5 Termination.  Unless the Project Agreement states otherwise, the Project Agreement and any or all of the Services and/or Nielsen Information or licenses provided thereunder may be terminated (a) 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 will become unable for any reason beyond its control to perform its obligations hereunder, or (iii) Nielsen is terminating such Service to all clients then subscribing to a class of such Service; or (b) by either party on the last day of the Initial Term or any Renewal Term, provided  such party gives the other party at least 3 months’ prior written notice of such termination. Each party may terminate the Project Agreement in the event of a material breach by the other party which remains uncured after thirty (30) days following notice, or in the event the other party becomes the subject of a proceeding in bankruptcy/insolvency or its equivalent.

Article 6. General Provisions

6.1 No Measure of Popularity Per Se.  It is recognized and agreed by all parties hereto that the Nielsen Information (i) does not provide a measure of program or artist popularity per se, as other factors, such as the network or station, time of day, season, weather and competing, preceding and following programs, are also relevant, and (ii) does not provide a measure of network, station or cable network popularity or value per se, because such data also reflect other factors, such as program and artist popularity, time of day, season, weather and competing, preceding and following programs. 

6.2 Survival.  All obligations concerning confidentiality, liability, indemnification and uses of Nielsen Information shall survive the termination of the relevant Project Agreement. 

6.3 Force Majeure (a) 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 and (b) In the event either party is delayed in or prevented from performing any act required hereunder 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, acts of terrorism, weather conditions, third party interference or other similar reason beyond its control, including the reasons set forth in clause (a) above, then performance of such act shall be excused for the period of such delay; provided, however, that Client’s obligation to make any payment pursuant to the relevant Agreement shall not be excused for  the force majeure event, unless Client is prevented from performing its payment obligations as a result of the force majeure event. 

6.4 Independent Contractor Relationship. The parties to the Project Agreement are independent contractors and neither shall have authority to bind or obligate the other.

6.5 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 

6.6 Assignment.  Each Project Agreement is for the benefit of and binding on the parties and their successors and assigns. Subject to the prior written consent of Nielsen, Client may assign its rights under the relevant Project Agreement to a successor to all or substantially all of the business of Client, provided all obligations of Client are assumed by the assignee and documentation of such assumption satisfactory to Nielsen has been delivered to Nielsen.  Nielsen reserves the right to assign its rights to an affiliate of Nielsen or a successor to all or substantially all of the business of Nielsen, and reserves the right to have any Services rendered by such affiliate or successor.  

6.7 Injunctive Relief.  Any breach of the use of services provisions of Article 3 of these Terms may cause irreparable harm to Nielsen, for which Nielsen’s remedies at law will 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.

6.8 Entire Agreement; Modification or Amendment; Waiver.  Each relevant Project 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.  Project 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 applicable Project Agreement in any manner whatsoever.   

6.9 Governing Law.  Each Project Agreement shall be governed by the laws of England and Wales.  The parties agree to the exclusive jurisdiction of the courts of England and Wales for the purpose of determining all disputes arising in connection with the Project Agreement.

Additional Terms and Conditions

1. The Nielsen Information in Nielsen Ad Intel Service contains Nielsen proprietary information which may include (i) advertiser and program codes; (ii) product classifications; and (iii) brand/parent company hierarchies.  Under no circumstances may Client use these proprietary codes, classifications and/or hierarchies for any purposes other than to tabulate the Nielsen Ad Intel data solely in conformance with the “Use of Services” provisions of these Terms.

2. Nielsen Ad Intel Service is based, in part, on data or information from third parties, Nielsen may discontinue furnishing such Nielsen Ad Intel Service 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.

3. In the event the Services hereunder include National Television Ratings Data and/or Local Television Ratings Data, the National Reference Supplement and/or the Local Reference Supplement (as amended by Nielsen from time to time, each a “Reference Supplement”) are incorporated herein, as applicable, by reference and made part of these Terms.  Attention is directed to the definitions, reminders and information concerning sampling methods, sample size, statistical interpretation and other related matters and information contained or referred to in the Reference Supplements.

4. Nielsen may use subcontractors for the performance of its obligations under an applicable Project Agreement, provided that such subcontractors are bound by strict confidentiality obligations. Nielsen will be fully responsible for subcontractors’ performance of the Project Agreement