NIELSEN MARKETPLACE SERVICES AGREEMENT
Last updated: November 15, 2024
CAREFULLY READ THE FOLLOWING AGREEMENT! THIS NIELSEN MARKETPLACE SERVICES AGREEMENT (THE “AGREEMENT”) CONTAINS IMPORTANT TERMS AND CONDITIONS AND GOVERNS NIELSEN’S PROVISION AND YOUR ACCESS TO AND USE OF THE NIELSEN INFORMATION AND TECHNOLOGY SERVICES (AS DEFINED BELOW) AND DATA, INFORMATION, TECHNOLOGY AND RELATED SERVICES (INDIVIDUALLY, A “SERVICE”, AND COLLECTIVELY, THE “SERVICES”) SET FORTH HEREIN AND IN THE ATTACHED SCHEDULE(S), AS APPLICABLE TO YOUR PURCHASE AS NOTED THEREIN (EACH A “SCHEDULE”), AND IS BETWEEN YOU (OR “YOUR” OR “CLIENT”) AND THE NIELSEN COMPANY (US), LLC (“NIELSEN” OR “OUR” OR “WE” OR “US”). BY CLICKING ON THE “I ACCEPT” BUTTON, CLIENT IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT AND YOU REPRESENT TO NIELSEN YOU HAVE LEGAL AUTHORITY TO BIND AND COMMIT CLIENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO SIGN THE AGREEMENT ON CLIENT’S BEHALF. This Agreement takes effect if and when you click the “I Accept” button or check box presented with this Agreement or, if earlier, when you use any of the Services (“Effective Date”). Schedules are incorporated into and form part of this Agreement. BY CLICKING ON THE “I DECLINE” BUTTON, CLIENT IS DECLINING TO BE BOUND BY OR BECOME A PARTY TO THIS AGREEMENT AND IF YOU PROVIDE YOUR CONTACT INFORMATION, YOU WILL INSTEAD BE DIRECTED TO A NIELSEN TEAM MEMBER.
BY CLICKING ON THE “I ACCEPT” BUTTON, YOU ALSO CONFIRM YOU HAVE REVIEWED NIELSEN’S PRIVACYPOLICY LOCATED AT https://preprod.nielsen.com/legal/privacy-principles/website-privacy-statement/ AND ACCEPTAND AGREE TO NIELSEN’S TERMS OF USE LOCATED AT https://preprod.nielsen.com/legal/terms-of-use/ (“TOU”), TOGETHER THE “POLICIES”).
In the event of any conflict between the terms of this Agreement and the terms of the TOU, this Agreement shall govern for purposes of the Nielsen Marketplace Services. We may modify this Agreement (including any Policies) at any time by posting a revised version on the Nielsen Marketplace website at https://preprod.nielsen.com/legal/marketplace-us (the “Nielsen Marketplace Site”) or by otherwise notifying you in accordance with Section F(5). The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services or Nielsen Information after the effective date of any modifications to this Agreement, You agree to be bound by the modified terms. It is Your responsibility to check the Nielsen Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the beginning of this Agreement.
A. Scope and Use of Services
1. Services; Ownership and Rights. Nielsen provides the Services set forth in the Schedule(s) for use solely by You for Your confidential internal use within the United States of America (unless otherwise stated in a Schedule) in accordance with the permitted use in the Schedule. The data and information included in Services are referred to as “Nielsen Information”. Certain Services may involve the provision of “Technology Services” which involve technology including Internet portals, access and analytic tools, licensed systems, templates, software and related materials (including delivery media, manuals, updates and new versions). Subject to this Agreement, Nielsen hereby grants You a limited, non-exclusive right to use the Services in the United States (unless otherwise provided in a Schedule) as permitted hereunder. As between Nielsen and Client, Nielsen owns all rights to the Services and Nielsen Information. All rights not expressly granted to Client herein are hereby reserved exclusively by and to Nielsen.
2. Disclosure. Any use must be accurately sourced to Nielsen, may not claim Nielsen as the source of any independently generated information, and may not be presented in a misleading manner. You agree: (i) the Services and Nielsen Information are the confidential and proprietary information of Nielsen, and (ii) to treat the Services and Nielsen Information as confidential information and not disclose such confidential information, other than as provided in this Agreement, without Our prior written consent.
You will not issue any press release or make any other public communication with respect to this Agreement or Nielsen’s provision or Your use of the Services or Nielsen Information.
3. Users. Client enters into this Agreement on its own behalf and on behalf of each employee (“User”) and agrees to be responsible for compliance by it and its Users with applicable law and the terms and conditions hereof, including any of the Policies.
4. Restrictions. You shall not and shall not permit any third party to (a) decompile, reverse engineer, disassemble, sublicense, distribute, dispose of, modify, adapt or translate any Service or Nielsen Information, or remove any proprietary or copyright legend therefrom; (b) combine, cross tabulate, index, model or in any way use the Nielsen Information with any other data or software programs provided from any other source, or with any other data without Our prior written consent; (c) disclose, distribute, publish or otherwise make available the Services or any Nielsen Information and/or any work created through the use of such Services to any third party except as expressly permitted herein; (d) associate the Services or Nielsen Information with any personally identifiable information, personal information or personal data (as each term may be defined under applicable laws); (e) combine, integrate, match, connect, fuse, validate or in any way use the Services or Nielsen Information with any other data or with software programs provided from any other source; (f) cross-tabulate, index, or model the Services or Nielsen Information; (g) use the Services or Nielsen Information (i) for the creation of stand-alone analytics reports or products; (ii) in violation of applicable laws; and/or (iii) to create, develop, improve, train, or build any machine learning techniques, artificial intelligence, algorithms, or automated processes (“Algorithms”) or allow any Services or Nielsen Information to be used with any Algorithms, including, without limitation, to modify, improve, train, or score any data or otherwise produce insights; and/or (h) buy and sell media, pace, post based upon, guarantee or otherwise transact using any part of the Services or Nielsen Information without Our written consent and where such consent is obtained, only through the use of a Nielsen-approved software program or third party platform with an effective agreement with Nielsen.
5. Third Parties. You 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 modeling or awareness tracking companies and/or media audit companies unless, prior to accessing such Nielsen Information, the third party shall have entered into Our then standard form of agreement for such third party, as established by Us in our sole discretion. At Our sole discretion, We may decline to enter into such agreement or grant a third party access or rights to Nielsen Information, and We reserve the right to charge for such access. We are not responsible for the accuracy of information produced by such third party from Nielsen Information.
6. Legal Proceedings. No Services or Nielsen Information may be used in any legal or administrative proceeding. If such use is compelled by legal process, You shall promptly give Us advance written notice and, before such use, obtain confidentiality agreements, protective orders and evidentiary stipulations acceptable to Us and limit the use to the minimum necessary to comply with such legal requirement.
7. Beta Services. In connection with Your access to Services, We may provide You with “Beta Features,” meaning Services or Nielsen Information made available to You on a pre-release or “for evaluation only” basis for a limited period defined by Us. Some commercially released Services may contain certain Beta Features, such as Nielsen Information that is provided on a pre-release or “for evaluation only” basis and/or prior to the release to the marketplace generally (e.g., data provided during the course of Our methodology changes) (“Evaluation Data”). Beta Features may be subject to fees or provided free of charge, and may be subject to additional terms, as determined by Us. At such time that any Service or
Nielsen Information previously provided as a Beta Feature is commercially released by Us, Your continued access to any such Service or Nielsen Information is subject to the following: (a) You entering into additional terms with Us for such Service or Nielsen Information (which may include additional fees); and/or (b) Nielsen notifying You such Service or Nielsen Information may only be used subject to existing terms and conditions. Unless provided otherwise by Us in writing, We provide such Beta Features to You for Your confidential, internal use within the United States, for as long as We permit access to such Beta Features, for the sole purpose of evaluating such Beta Features and providing Us with
any ideas, suggestions, improvements, comments, errors, bug reports and other feedback (“Feedback”) in connection therewith. Unless provided otherwise by Us in writing, You shall not and shall not permit any third party to: (a) disclose Beta Features to, or use Beta Features for the benefit of, any third party; (b) use Evaluation Data for any purpose other than to evaluate such Evaluation Data as compared to Nielsen’s current production data (i.e. currency data); and/or (c) buy and/or sell media, post based upon, guarantee or otherwise transact using any part of the Beta Features. You may in Your sole discretion provide Feedback related to Beta Features, and You will own all Feedback, provided You hereby grant to Nielsen a worldwide, perpetual, irrevocable, royalty-free and fully-paid up license to use and practice the Feedback in or with Nielsen’s business activities and product and service offerings. You acknowledge: (a) any use of Beta Features is at Your own risk; (b) Beta Features may not always be functional or available, and may contain errors; and (c) Beta Features are provided “as is”, “as available”, with all faults and without any representation or warranty of any kind. We will not be responsible for any loss or damage of any kind in connection with or arising out of any of the Beta Features.
B. Fee and Taxes
1. Fee. You agree to pay the fees set forth in the Schedules (the “Fee”). Such Fee is due and payable via credit card only during Your checkout on the Nielsen Marketplace Site prior to completing your purchase and receiving the Services or any applicable Nielsen Information. Fees are inclusive of all taxes and You are responsible for any value-added, goods and services, sales, use and similar taxes due with respect to the Service or Nielsen Information.
C. Changes to Services and Charges
1. Changes to Service. We may, from time to time make changes to a Service or portion thereof including, without limitation, formats, schedules, specifications and/or techniques.
D. Warranties, Limitation of Liability, Exclusive Remedy and Indemnification
1. Disclaimer of Warranties. You recognize 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 We cannot guarantee the accuracy of Nielsen Information in the Services. 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, QUALITYOR FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT. THE SERVICES AND NIELSEN INFORMATION ARE PROVIDED “AS IS”, AND “WITH ALL FAULTS”. The foregoing disclaimer shall not act as or constitute an admission by Us that any Services or Nielsen Information constitute goods, commodities or tangible personal property under applicable law.
2. Limitation of Nielsen’s Liability; Exclusive Remedies. We shall not be obligated to furnish any Nielsen Information or Service when conditions outside Our control don’t permit Nielsen techniques to produce measurements in accordance with Our standards. We will give a pro rata refund of Fees paid for any Nielsen Information or Service for such period of time as it fails for reasons within Our control to provide such Nielsen Information or Service and will use reasonable efforts to correct material errors which You identify in Nielsen Information. We will not be liable, in contract, tort (including negligence) or otherwise, for any loss, expense or damage of any kind including, without limitation, special, incidental or
consequential damages, arising from or related to this Agreement. UNLESS OTHERWISE PROHIBITED BYAPPLICABLE LAW, NIELSEN SHALL NOT 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 THIS AGREEMENT. THESE REMEDIES ARE EXCLUSIVE.
3. Indemnity. You agree to defend, indemnify and hold Nielsen harmless from and against all claims, damages, losses or expenses (including attorneys’ fees) arising, directly or indirectly, from Your disclosure or use of the Services or Nielsen
Information contrary to the terms of this Agreement.
E. Term, Suspension and Termination
1. Term and Termination. Unless terminated in accordance with the terms hereof, this Agreement, the rights granted hereby and the Services rendered hereunder shall commence on the Effective Date and shall remain in force and effect as indicated in the Schedule (“Term”). For the avoidance of doubt, the Term of the Agreement shall remain in effect so long as the term of a Schedule remains in effect. This Agreement and any or all of the Schedules and Services or Nielsen Information or rights provided hereunder may be terminated by Us on any date we specify if You fail to perform or breach any one or more of Your payment or other obligations hereunder.
2. Return of Materials. Upon termination or expiration of a Schedule (as applicable), or the Term of this Agreement (i.e. termination or expiration of all Schedules), (i) all respective rights and licenses granted to You to use the Services and Nielsen Information shall cease and terminate immediately under such applicable Schedules and (ii) You shall discontinue use of and remove the Services and Nielsen Information provided under the applicable Schedules from Your systems and records, destroy tangible forms thereof, and upon Our request, certify such removal/destruction in a written certification satisfactory to Us; provided, however, that copies created and archived by Your information security systems shall be deleted as soon as practicable.
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, We 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 Us for any reason.
4. Suspension or Termination of Services. The provision of Services or rights granted, or any portion thereof, may be suspended or terminated by Us at any time in the event You breach any term of this Agreement (including but not limited to breach of Your payment obligations). Such suspension of Service shall not suspend or otherwise affect Your payment obligations for any outstanding Fees owed prior to the suspension, or payment obligations owed subsequent to the suspension, for the Fees for the suspended Services for the remainder of the Term. Unless We suspend or terminate the Services or this Agreement for Your breach or failure to perform Your obligations, upon termination, as Your sole remedy
and Our sole liability in connection with such termination, we will provide You with a prorata refund of the Fee for the
remainder of the Term after the effective date of termination.
F. General Provisions
1. Survival. The rights and obligations of Nielsen and Client set forth in Sections _ shall survive the termination of this Agreement.
2. Force Majeure. 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 (“Force Majeure Event”), then performance of such act shall be excused for the period of such delay; provided, however, that Your obligation to make any payment pursuant to this Agreement shall not be excused for:
(a) the Force Majeure Event, unless You are logistically prevented from performing Your payment obligations as a result of the Force Majeure Event (e.g. banking system outage); or (b) Services which are not affected by the Force Majeure Event.
3. Independent Contractor Relationship. The parties to this Agreement are independent contractors and neither shall have authority to bind or obligate the other.
4. Notices. We may provide any notice to You under this Agreement by (i) posting a notice on the Nielsen Marketplace Site or (ii) sending a message to the email address associated with Your account. Notices we provide by posting on the Nielsen Marketplace Site will be effective upon posting and notices We provide by email will be effective when We send the email. It is Your responsibility to keep Your email address current. You will be deemed to have received any email sent to the email address then associated with Your account when We send the email, whether or not You actually receive the email. 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 to Nielsen at The Nielsen Company, 675 Avenue of the Americas, New York, NY 10010, Attention: Senior Vice President – Finance, with a copy via email to legal.notices@nielsen.com; and (ii) if to Client at the physical and/or email address(es) set forth on the registration and/or check-out process page(s) of the Nielsen Marketplace Site.
5. Assignment. This Agreement is for the benefit of and binding on the parties and their successors and assigns. Subject to the prior written consent of Nielsen, You may assign Your rights under this Agreement to a successor to all or substantially all of Your business, provided all Your obligations are assumed by the assignee and documentation of such assumption satisfactory to Us has been delivered to Us. We reserve the right to assign Our 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. Any purported assignment without Our written consent shall be null and void.
6. Injunctive Relief. Any breach of the use of services provisions of this Agreement may cause irreparable harm to Us, for which Our remedies at law will not be adequate. We 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.
7. Entire Agreement; Modification or Amendment; Waiver. This Agreement incorporates the Policies by reference and contains the entire understanding of the parties with respect to the provision of Services furnished hereunder and supersedes all previous discussions and agreements relating to such Service; provided, however, that any “purchase order” or similar document received from You shall be for billing reference only and, notwithstanding any terms and/or conditions set forth therein, such document shall not take precedence over this Agreement in any manner whatsoever. This Agreement may not be modified or amended except in a writing executed by the parties. No waiver by a party of any breach of this Agreement shall be deemed a waiver of any prior or subsequent breach. In the event of a conflict between the terms of this Agreement and the terms of a Schedule, the terms of the Schedule shall govern, and if the terms of this Agreement are inconsistent with the terms contained in any of the Policies, the terms of this Agreement shall govern.
8. Governing Law. This Agreement shall be governed by the laws of the State of New York, United States of America, without regard to its choice of law provisions. The parties agree to the exclusive personal jurisdiction of the State and Federal courts located in New York, New York for purposes of determining all disputes arising in connection with this Agreement and hereby waive all objections to venue in those courts.
Schedule A – If You are purchasing Nielsen’s Zips By DMA Service, these Schedule A terms also apply to You
A. SCOPE OF SERVICE AND USE
1. Zips by DMA: Nielsen will provide Client with Nielsen Information consisting of a data file containing the United States Postal Service ZIP Codes identified by Nielsen’s proprietary partitioning of regions into geographically distinct marketing areas (DMA® regions) (“DMA Data”) and the boundaries of Nielsen’s DMA regions within the United States of America (the “DMA Regions”) and the statistical profiles of each DMA Region.
2. The Nielsen Information and DMA Data is provided to Client hereunder for its confidential internal use only, and not for any other use, including but not limited to media buying, planning or sales and Client may not disclose the Nielsen Information to any third party.
B. FEES
1. Client shall pay the following annual Fee for the DMA Data: $8,299.
C. ADDITIONAL TERMS AND CONDITIONS
1. Client acknowledges and agrees that Nielsen is the sole and exclusive owner of (i) the DMA Data and all intellectual property rights therein and (ii) the federally-registered mark “DMA” for use in connection with television viewer market research and analysis services, which is now incontestable within the United States pursuant to 15 U.S.C. § 1065 (see Federal Registration No. 1,157,555) (the “DMA Mark”); and (b) Client (i) is prohibited from removing or altering any DMA Mark provided in or along with the DMA Data.
2. Client is granted a limited, non-exclusive right during the Term to use the Nielsen Information along with any DMA Mark provided in or along with the Nielsen Information, subject to all the terms and conditions of this Agreement.
3. The term of the DMA Data Services and rights granted hereunder shall be for one (1) year.