General Terms and Conditions

1. Offer
Any Offer made by Nielsen contains confidential information and may not be disclosed by the recipient to any third party other than the consultants brought in to evaluate the Offer. The Offer can be accepted within a period of validity specified in writing by Nielsen after submission.

2. Validity of the General Terms/Conclusion of the Agreement
2.1 Nielsen’s Offers are based on the present General Terms and Conditions. They are accepted with the conclusion of the Agreement in the specific case.

2.2 An Agreement is only concluded once Nielsen has received a written acceptance of the Offer or the Client has accepted the offered Service.

3. Fees, Expenses and Payment
3.1 The Client must pay Nielsen the fee specified in the Offer. The statutory sales tax is not included in the Fee; it will be shown separately in the invoice on the day of invoicing.

3.2 Unless expressly agreed otherwise in writing, the Fee shall become due upon receipt of the invoice.

3.3 If the Client is in default of payment, Nielsen shall be entitled (i) to charge interest on the overdue amount at a rate of 5% above the prime rate of the European Central Bank and (ii) at its option, to suspend the performance of the Services until the amount due has been paid in full plus interest thereon.

3.4 The Client is only entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by Nielsen in writing. Furthermore, the Client is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship and has not been disputed by Nielsen..

4. Intellectual Property and Permitted Uses of Services and Deliverables by the Client
4.1 As used in this Section 4, “Intellectual Property Rights” mean trademarks, trade names, copyrights, patents, design rights, topographical rights, file rights, applications for registration of the foregoing rights, trade secrets, unpatented know-how and the right of confidentiality, and other intellectual or industrial property rights of any kind anywhere in the world; and “Affiliate” of a Party to this Agreement means any entity that directly or indirectly owns or controls, or is directly or indirectly owned or controlled by or is under common ownership or control with the Party, provided that 50% or more of the voting membership rights are held..

4.2 The Agreement concluded between the Parties shall not be deemed to be a transfer of intellectual property rights of any kind, unless expressly provided otherwise in the Agreement.

4.3 All Intellectual Property Rights and all other rights in any work or product arising out of the performance of Services or in the creation, production or development in connection with the performance of Services by Nielsen (“Work”), including all other rights in documents, data, information, concepts, ideas, techniques and methods, shall pass to Nielsen or be and remain the sole property of Nielsen. Client does not acquire any right, title or interest in or to the Work.
Subject to indemnification, Client may use Limited Excerpts (excerpts which have no independent economic value in terms of quality and quantity) as part of its ordinary sponsorship activities, provided that Nielsen is clearly identified as the source in any disclosure, that Nielsen is not claimed as the source of independently generated information, that Client does not directly or indirectly state or imply that (i) Customer’s analysis, conclusions or comments are attributable to Nielsen, or (ii) Nielsen endorses, judges, evaluates, approves or disapproves of, or advocates for or against, any company’s products or services. Finally, Nielsen must not otherwise be portrayed in an inaccurate, disparaging or misleading manner.

If Limited Excerpts are to be published in public notices (consumer advertising, annual reports, etc.), Nielsen’s prior written consent is required. No additional approval is required if Limited Extracts are shared with agencies, sponsors/sponsoring partners in the ordinary course of business.

4.4 All Intellectual Property Rights and all other rights in reports and work product, including any data, analysis, algorithms, models, presentations or other information provided to Client (“Reports”) and software provided to Client shall be and remain the sole property of Nielsen.

4.5 The Client acknowledges that Nielsen provides its Services to the Client for the Client’s internal business purposes only and solely for use in Germany. Therefore, such Services may not be disclosed to any third party (other than Client’s Affiliates) without Nielsen’s prior written consent, which consent may be withheld by Nielsen in its sole discretion. Client shall indemnify and hold Nielsen harmless from any and all claims, actions, liabilities, losses, damages or expenses (including legal and professional fees) incurred by Nielsen arising out of (a) Client’s or Client’s Affiliate’s disclosure of Nielsen Services without Nielsen’s consent or (b) any disclosure permitted by the Agreement.

4.6 The Services or Nielsen Information may not be used in any legal or governmental proceeding without the prior consent of Nielsen’s Legal Department. If a court order is issued, Client will notify Nielsen in advance in writing and, prior to such use, will obtain confidentiality agreements that provide sufficient protection for Nielsen and that limit the use of the Services and Nielsen Information to the minimum necessary to comply with legal process.

4.7 No agreement shall prevent or restrict Nielsen or any of its affiliates from using its work or expertise for the benefit of other clients, from providing similar services to other clients, or from providing similar reports to other clients, whether or not the other clients are in the same industry as the client; nor shall it prevent or restrict Nielsen from issuing or supplying market research data or other products or services.

5. Use of Software by the Client
To the extent that Nielsen also provides software to Client in addition to a Report, Client is only authorized to use such software in connection with such Report for its internal business purposes and subject to the following provisions:

5.1 The software is in use when it is loaded in a temporary memory (RAM) or stored in a permanent memory, e.g. hard disk. It may be used at any time on no more than the number of computers specified under “Number of Licenses”. In a network, the Client must ensure that the number of persons using the software does not exceed the number of licenses granted.

5.2 The Client is not entitled to modify, duplicate or process the subject matter of the Agreement. The Client will receive the information necessary for interoperability upon request. Nielsen, on the other hand, grants the Client the right to make a backup copy of the software for data backup purposes. The Client shall ensure that this copy is stored securely at all times and is not made available to any third party..

5.3 The subject matter of the Agreement is the Intellectual Property of Nielsen and its licensors. The Client does not obtain any ownership rights to the software. The Client expressly acknowledges that the subject matter of the Agreement constitutes a trade secret of Nielsen. In particular, the Client agrees not to resell or lease the software or otherwise make it available to third parties without the prior express consent of Nielsen.

5.4 If the Offer refers to software belonging to a third party, it is the Client’s responsibility to seek the necessary license directly from this third party..

6. Warranty
6.1 Statistical Process
Nielsen will perform the Services specified in the Offer with the diligence of a prudent businessman. The timing and duration of the Services may be affected by various factors, such as unforeseen complications during a particular stage of the performance of the Agreement, the quality and availability of the information to be provided by the Client and the cooperation provided by the Client. Therefore, information about time schedule and duration are only indicative, unless the Parties expressly agree that deadlines are decisive. The data covered by the Services offered are primarily based on evaluations reflecting Nielsen’s experience and on raw data collected in samples and processed using statistical methods suitable for the collection and processing of the data. These data are subject to a statistical margin of error and other statistical factors. Nielsen shall not be liable for any inaccuracies inherent in the nature of the method or statistical process or in the practical implementation of such method or its evaluation, i.e., inaccuracies that are practically unavoidable.

6.2 Obvious defects
The Client is obliged to inspect Nielsen’s Services for obvious defects upon receipt. The Client shall notify Nielsen in writing of any obvious defects, such as missing data or information, within 12 weeks of receipt. In the absence of such complaints, Nielsen’s Services shall be deemed to be accepted.

6.3 Exclusion of Liability
Nielsen’s liability shall be excluded if and to the extent that

a. the client changes the data and information provided or has them changed by third parties. This shall not apply if the Client proves that any defects that have occurred have not been caused by such changes.

b. the Client uses the provided data and information in excess of the granted license of use.

6.4 Process
If Nielsen’s Services are defective, the client’s claims shall initially be limited to subsequent performance or subsequent delivery. If the supplementary performance or subsequent delivery fails due to one and the same defect or if the supplementary performance or subsequent delivery is not reasonable for the Client, the Client shall be entitled to demand a reduction of the Fee paid for the affected partial performance or, at its option, cancellation of the partial performance not rendered in accordance with the contract. An automatic reduction of the contractually agreed Fee shall not take place.

7. Liability
7.1 Nielsen shall have unlimited liability for damages resulting from injury to life, body or health as well as for damages resulting from an intentional or grossly negligent breach of duty by Nielsen. Irrespective of the degree of fault, Nielsen shall furthermore be liable without limitation for damages if Nielsen has guaranteed certain properties of the Service or according to mandatory law, e.g. if the Product Liability Act is applicable. Notwithstanding the foregoing, Nielsen’s liability for direct and consequential damages arising out of or in connection with the Agreement shall be limited to the amount equal to the fees paid by the Client to Nielsen in the 12 months prior to the cause of the claim.
7.2 Furthermore, Nielsen shall not be liable in contract, tort or otherwise for any direct or indirect loss, expense or consequential damages. To the extent permitted by law, the Client’s claims shall be time-barred one year after the claim arises, but no later than 2 years after the termination of the relevant contract.
7.3 The provisions of the Product Liability Act remain unaffected.

8. Confidentiality and Disclosure
8.1 Confidentiality Obligations
The Parties shall keep confidential all documents, information and data relating to the respective other party or to third parties which they obtain in connection with the contractual Services (“Confidential Information”). This confidentiality obligation shall cover all business, financial, legal and other information which becomes known to the other Party orally, in writing, through presentations or in any other way in the course of preliminary discussions, contract negotiations and the execution of the contract. This shall also apply if the information is not expressly marked as confidential or proprietary. Confidential Information is all information which was not known to the contractual partner, its employees, its auxiliary persons or subcontractors before the start of the Agreement or which is not generally known. In particular, all information which is marked as “confidential” or whose confidentiality results from the circumstances of disclosure or exposure is subject to secrecy. An exception exists insofar as the contracting Parties are legally obliged to disclose confidential information to third parties or authorities.
Furthermore, the provisions set forth in Section 8 shall not apply to Confidential Information lawfully received by recipient from third parties on an unrestricted basis or independently developed by recipient without using or referencing the disclosing Party’s Confidential Information. The confidentiality obligation shall continue beyond the termination of the Agreement.

8.2 Use of Confidential Information
The Parties may use the Confidential Information disclosed to them only for the purpose of fulfilling the contract or promoting the conclusion of the Agreement. The use for other purposes is excluded.

8.3 Safeguarding Confidential Information
The Parties will take all reasonable precautions to protect Confidential Information from unauthorized disclosure, copying and use. The Parties will not disclose Confidential Information to third parties without the respective prior written consent of the other Party.

8.4 Nielsen may use Client’s name for reference purposes without obtaining Client’s prior written permission. Any other use of company names, business names or other business designations requires its prior written consent.

9. 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. Nielsen may terminate this Agreement and all or any part of the Services provided hereunder if Nielsen or any applicable affiliate is or becomes unable to perform its obligations under this Agreement for any reason beyond its control or if prohibited from doing so by mandatory applicable law.

10. 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 the Client hereby agrees 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.

11. Statute of Limitation
All of Client’s claims arising from breach of contract shall become statute-barred two years after performance of the (partial) service. The claim for performance shall become time-barred two years after its due date unless a shorter statutory limitation period applies.

12. Severance
Should individual provisions of the Agreement prove to be ineffective, illegal or unenforceable, they shall be replaced with retroactive effect by those effective provisions which come closest to the intention of the contracting Parties existing at the time of the Agreement of the respective provision. The validity of the remaining provisions shall remain unaffected.
The above provision shall apply mutatis mutandis in the event that the contract should contain loopholes.

13. Entire Agreement
Amendments to the Agreement must be made in writing, which can only be waived in writing. If a Party waives the assertion of its rights under this Agreement in a specific case, this shall not be deemed to be a waiver of the assertion of rights accrued at an earlier time or later due to breach of Agreement.

14. Notices
All notifications made by one Party to the other Party on the basis of or in connection with this Agreement must be in writing. The notice shall be delivered to the respective Party at the address specified in the Order in each case.

15. Court Venue
All claims related to or arising from this Agreement shall be brought to the competent courts in Cologne, Germany.

16. Anwendbares Recht
This Agreement shall be governed by German law.