Nielsen Download License Agreement
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PCM-to-ID3 SDK (Windows) v2.3.2.
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This Nielsen SDK Evaluation License Agreement ("Agreement") is entered into by you, on behalf of your company, as indicated in accompanying form ("You," "YOUR" or "LICENSEE") and The Nielsen Company (US) LLC ("NIELSEN"), each a "PARTY" and collectively the "PARTIES," on the date YOU indicate YOUR acceptance by signing this Agreement or by selecting the "I ACCEPT THE TERMS OF THIS AGREEMENT" option ("EFFECTIVE DATE").
READ THESE TERMS CAREFULLY BEFORE DOWNLOADING THE NIELSEN PRODUCT (DEFINED BELOW). BY DOWNLOADING THE NIELSEN PRODUCT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS LICENSE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS.
IF YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR SUCH OTHER ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE THIS AUTHORITY, YOU MAY NOT ACCEPT THIS AGREEMENT OR USE THE MATERIALS ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY.
Definitions. In addition to capitalized terms that are defined anywhere in this Agreement, the following capitalized terms shall have the following meanings for the purposes of the Agreement.
"DEVELOPED APPLICATION" means a LICENSEE ENCODER APPLICATION that has been adapted by or for LICENSEE to call, link to, interface with, incorporate, integrate or otherwise use the NIELSEN PCM TO ID3 SDK (in binary form only) and incorporates one or more FUNCTIONS of the NIELSEN PCM TO ID3 SDK, to PROCESS a multi-media content stream input format containing WATERMARKS into a multi-media content output format containing ID3 TAGS.
"DEVICE(S)" means one or more IP-enabled computing devices.
"FEEDBACK" means any and all comments and/or feedback, including but not limited to any ideas, suggestions, improvements, comments, errors, bug reports and other feedback that may be provided by YOU to NIELSEN with regard to NIELSEN PRODUCT.
"ID3 TAG(S)" means a data container that conforms to an identified ID3 specification where such container can be stored as an independent part of MPEG format content and such data comprises NIELSEN proprietary, encrypted content-related meta-data.
"LICENSEE ENCODER APPLICATION(S)" means LICENSEE's encoding software application, provided that in no case will LICENSEE ENCODER APPLICATION be deemed to include any FUNCTION of, input to, or output of NIELSEN PRODUCT.
"LOCATION" means those facilities owned or controlled by YOU or YOUR REPRESENTATIVES.
"NIELSEN PCM TO ID3 SDK" means NIELSEN/'s proprietary SDK, all FUNCTIONS thereof including but not limited to FUNCTIONS for converting a pulse-code modulated ("PCM") format multi-media content stream (containing embedded WATERMARKS) to a multi-media content stream (containing ID3 TAGS) that is viewable on a DEVICE. The NIELSEN PCM TO ID3 SDK includes a sample (non-production ready) application (source code included), which is provided by NIELSEN solely for internal use as an example to aid in the (internal only) development of the PCM-to-ID3 ENABLED PRODUCT as well as a sample (non-production worthy) test application to verify the output ID3 TAG.
"NIELSEN PRODUCT" means the NIELSEN PCM TO ID3 SDK, ID3 TAGS; all UPDATES thereto and FUNCTIONS thereof, and all related documentation provided by NIELSEN to YOU.
"PROCESS(ED)" means one or more of: processed, computed, embedded, encoded, encrypted, received, detected, transformed, transcoded, converted, collected, captured, decoded, decrypted, derived and all variations and equivalents thereof, whether performed in the past, present or future.
"REPRESENTATIVE(S)" is defined in Section 3.2.
"SYSTEM REQUIREMENTS" means NIELSEN/'s then current written criteria of performance and quality for NIELSEN PRODUCT and prototypes thereof, as provided by NIELSEN.
"TESTING" means the development and testing performed by or for YOU under this Agreement, including of the end-to-end performance (including latency and accuracy), of a DEVELOPED APPLICATION, used internally only at the LOCATION.
"UPDATE(S)" means bug fixes, error corrections, updates, upgrades, enhancements, extensions, add-ons, new versions, new releases, replacements, conversions, design changes, software changes, logic configuration changes and any other modifications or derivative works thereof and all documentation related thereto.
"WATERMARK(S)" means acoustically masked data that has been repetitively encoded onto or embedded within a signal stream by NIELSEN proprietary techniques. The data includes information about the source distributor/network of content and a date/time stamp associated with that instant of the associated content.
- Intellectual Property and Restrictions.
2.1 Subject to all the terms and conditions of this Agreement, NIELSEN hereby grants YOU a non-exclusive, non-transferable, revocable, royalty-free limited license under NIELSEN/'s intellectual property rights in NIELSEN PRODUCT, during the Term, solely for the PURPOSE (defined below), to internally install the NIELSEN PCM TO ID3 SDK at the LOCATION and use a reasonable number of copies of the NIELSEN PCM TO ID3 SDK (in object code and source code to the extent provided by NIELSEN) for the purpose of TESTING DEVELOPED APPLICATION.
2.2 Restrictions. Not withstanding anything else in this Agreement:
- NIELSEN PRODUCT shall be used by or for YOU for the sole purpose of TESTING NIELSEN PRODUCT with LICENSEE ENCODER APPLICATION and providing FEEDBACK to NIELSEN thereon, relative to a possible subsequent transaction and separate written agreement between the PARTIES (the "PURPOSE").
- NIELSEN PRODUCT is licensed and not sold, and ownership of the NIELSEN PRODUCT and all intellectual property rights and goodwill associated therewith shall remain with and accrue to NIELSEN alone. The NIELSEN PRODUCT contains material that is protected by United States copyright laws, patent laws, trade secret laws, and by international treaty provisions. All intellectual property rights and licenses not expressly granted herein are reserved by NIELSEN. YOU shall maintain on, and may not remove, alter or modify, any identifying mark, copyright, trademark, or other proprietary notice of NIELSEN, its affiliates, or its licensors from any copy of NIELSEN PRODUCT.
- YOU shall not and shall not allow any third party to: (a) rent, lease, loan, license, sublicense, distribute, transfer, publish, display, disclose, or permit access to any NIELSEN PRODUCT, except to the extent that YOU are explicitly authorized to do so under this Agreement; (b) copy, reproduce, modify, change, alter or UPDATE any NIELSEN PRODUCT or any part thereof, except to the extent that YOU are explicitly authorized to do so under this Agreement; (c) access, reverse engineer, decompile, translate, adapt, disassemble, decrypt or otherwise use any PROCESS to discover the source code of any NIELSEN PRODUCT; (d) use a proxy server or any other technology to intercept, store or divert any ID3 TAGS or other output of NIELSEN PRODUCT contrary to the PURPOSE; (e) remove, alter or modify any identifying mark, copyright, or other proprietary notice of NIELSEN, its AFFILIATES, or its licensors from any copy of NIELSEN PRODUCT.
- To the extent there is a conflict between this Section 2.2 and anything else in this Agreement, this Section 2.2 will govern.
2.3 Feedback. YOU may at your sole discretion provide FEEDBACK to NIELSEN. YOU shall own all FEEDBACK that YOU provide, subject to the grant hereby to NIELSEN of a worldwide, irrevocable, royalty-free and fully-paid up license to use and practice the FEEDBACK in or with NIELSEN/'s business activities, including without limitation its product and service offerings.
2.4 Acceptance. After YOU have completed YOUR initial internal testing and reasonably believe that DEVELOPED APPLICATION conforms to the applicable SYSTEM REQUIREMENTS, YOU shall deliver a reasonable number of copies of the DEVELOPED APPLICATION to a NIELSEN designated facility for conformance testing at no cost to NIELSEN. The PARTIES will use commercially reasonable efforts to cure any errors identified during such testing. If the DEVELOPED APPLICATION conforms to SYSTEM REQUIREMENTS in all material respects, NIELSEN shall certify the DEVELOPED APPLICATION as accepted and approved.
2.5 Updates. NIELSEN will provide YOU with prior notice of any UPDATE to NIELSEN PRODUCT. Upon such notice, YOU will use commercially reasonable efforts to: timely test and deploy the UPDATE; and to maintain the compatibility of and conformance of any DEVELOPED APPLICATION to the then-current SYSTEM REQUIREMENTS. YOU shall submit such UPDATED DEVELOPED APPLICATION to NIELSEN, and if such DEVELOPED APPLICATION conforms to SYSTEM REQUIREMENTS in all material respects, NIELSEN shall certify such UPDATED DEVELOPED APPLICATION as accepted and approved.
2.6 The NIELSEN PRODUCT and any UPDATES provided by NIELSEN may include software and/or materials provided under license by third parties (collectively, "Third-Party Materials"). The PARTIES acknowledge and agree that the use of such Third-Party Materials is subject to terms of the licenses as specified in any applicable documentation and YOU shall comply with the terms and conditions of such licenses.
2.7 Measurement Services. Nothing in this Agreement suggests or requires: that YOU purchase any services from NIELSEN; or that NIELSEN provide any services to YOU. The PARTIES agree that the purchase or provision thereof must be subject to a separate written agreement between the PARTIES.
- Confidentiality. 3.1 For the purposes of this Agreement, "CONFIDENTIAL INFORMATION" shall mean: all NIELSEN PRODUCT; any LICENSEE ENCODER APPLICATION disclosed hereunder; the terms and conditions of this Agreement; and any other information disclosed by a PARTY (the "Disclosing Party") that: if disclosed in writing, is marked "confidential" or in a similar manner sufficient to put the other PARTY receiving the information (the "Receiving Party") on notice of the claim of confidentiality; and if disclosed verbally, is reduced to a writing that is so marked within thirty (30) days after such verbal disclosure; and information that would, under the circumstances, appear to a reasonable person to be confidential or proprietary.
- that at the time of disclosure is, or thereafter becomes, generally available to and known by the public (other than as a result of a disclosure directly or indirectly by the Receiving Party), or
- that at the time of disclosure is, or thereafter becomes, available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not and was not bound by a confidentiality agreement with the Disclosing Party or under any other legal obligation of non-disclosure, or
- that is independently developed without access to the applicable CONFIDENTIAL INFORMATION (and can be demonstrably proven as such) by the Receiving Party and in compliance with all of its obligations under this Agreement, or
- to the extent disclosure is required by legal process providing that the Receiving Party promptly notifies the Disclosing Party of said legal process, so that the Disclosing Party may seek a protective order to limit such disclosure and any such disclosure is limited to the information being requested.
- Warranties and Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, LICENSEE EXPRESSLY ACKNOWLEDGES THAT ALL NIELSEN PRODUCT IS PROVIDED "AS IS" AND ANY INSTALLATION OF OR USE BY LICENSEE OF ANY NIELSEN PRODUCT IS AT LICENSEE/'S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NIELSEN DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE NIELSEN PRODUCT IS NOT INTENDED FOR ANY USE IN WHICH THE FAILURE THEREOF COULD LEAD TO DEATH, PERSONAL INJURY, OR ENVIRONMENTAL DAMAGE. LICENSEE REPRESENTS AND WARRANTS TO NIELSEN THAT DEVELOPED APPLICATION, IF DISTRIBUTED IN ACCORDANCE WITH THE LICENSES GRANTED HEREIN, SHALL NOT RESULT IN NIELSEN PRODUCT BECOMING SUBJECT TO THE TERMS OF AN OPEN SOURCE LICENSE UNDER WHICH DOWNSTREAM RECIPIENTS OR OTHER THIRD PARTIES MAY CLAIM THE RIGHT TO (I) COPY, CREATE DERIVATIVE WORKS OF, OR REDISTRIBUTE ANY NIELSEN PRODUCT, OR (II) RECEIVE SOURCE CODE TO ANY NIELSEN PRODUCT.
- Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE INSTALLATION, USE OF OR INABILITY TO USE ANY NIELSEN PRODUCT, DEVELOPED APPLICATION OR LICENSEE ENCODER APPLICATIONS, OR ARISING OUT OF ANY THIRD PARTY CLAIM, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LAWS OF SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO CERTAIN LIMITATIONS SET FORTH IN THE TERMS ABOVE MAY NOT BE APPLICABLE TO THE PARTIES. IN NO EVENT WILL EITHER PARTY/'S LIABILITY EXCEED ONE THOUSAND ($1,000) U.S. DOLLARS, WITH THE EXCEPTION OF THE PARTIES/' RESPECTIVE OBLIGATIONS UNDER ONE OR MORE OF SECTIONS 2 AND 3.
- Export Restrictions. NIELSEN PRODUCT IS SUBJECT TO THE LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT OR RE-EXPORT OF THE NIELSEN PRODUCT OR INFORMATION ABOUT THE NIELSEN PRODUCT FROM THE UNITED STATES OF AMERICA. LICENSEE AGREES THAT IT SHALL BE SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH ALL SUCH LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS.
- Term and Termination. 7.1 This Agreement shall commence on the EFFECTIVE DATE and continue for twelve (12) months thereafter unless terminated earlier under the terms of this Agreement (the "Term"). Either Party may terminate this Agreement for any reason or no reason, upon thirty (30) calendar days/' notice to the other Party.
- Survival. All terms and conditions that by their nature survive any expiration or termination of this Agreement, including but not limited to those relating to confidentiality, shall survive any expiration or termination of this Agreement until fulfilled.
- Assignment. This Agreement is for the benefit of and binding on the PARTIES. LICENSEE will not assign its rights or obligations under this AGREEMENT without the prior written consent of NIELSEN. NIELSEN reserves the right to assign this Agreement either to an AFFILIATE of NIELSEN or to a successor substantially all or all of the relevant business of NIELSEN. Any purported assignment in violation of this Section 9 shall be null and void.
- Taxes. LICENSEE shall have sole responsibility for all fees and taxes related to its use of NIELSEN PRODUCT and DEVELOPED APPLICATION, including but not limited to value-added, goods, services, sales and use taxes.
- Independent Contractors; No Reliance. This Agreement may not be construed to either establish any form of partnership, agency, franchise or joint venture of any kind between LICENSEE and NIELSEN, or establish either PARTY as the agent, employee, or any other form of representative of the other PARTY. Each PARTY agrees that its decision to enter into this Agreement is made independent of and without reliance on any promises, inducements, representations or other statements made by the other PARTY, including without limitation, regarding the commercial viability, profitability or success in the marketplace of any products or services.
- Governing Law and Forum. 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 County, New York for the purposes of resolving all disputes arising in connection with this Agreement and each PARTY hereby waives all objections to venue in those courts.
- Entire Agreement. This Agreement and its Schedules constitute the entire Agreement between the PARTIES on the subject matter hereof and supersede all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevail over any conflicting or additional terms of any other agreement, quote, order or other communication between the PARTIES on said subject. No modification or waiver of this Agreement will be binding, unless in writing and signed by the authorized representatives of the PARTIES.
3.2 The Receiving Party will use the CONFIDENTIAL INFORMATION only for the PURPOSE and will limit access to the CONFIDENTIAL INFORMATION to those of its officers, employees and authorized contractors ("REPRESENTATIVES") who have a bona fide need to access the CONFIDENTIAL INFORMATION for the PURPOSE. The Receiving Party will not disclose any CONFIDENTIAL INFORMATION to any third party (other than said REPRESENTATIVES) and the Receiving Party shall make all of said REPRESENTATIVES aware of the fact that the CONFIDENTIAL INFORMATION is confidential and contractually bind REPRESENTATIVES to the obligations owing to the Disclosing Party. The Receiving Party shall be responsible for the acts or omissions of its REPRESENTATIVES with regard to CONFIDENTIAL INFORMATION and for any breach by any of them of said obligations or any other terms of this Agreement. The Receiving Party agrees to maintain security measures adequate to safeguard all CONFIDENTIAL INFORMATION from unauthorized disclosure, access, use and misappropriation and to maintain the confidentiality of the CONFIDENTIAL INFORMATION, using at least the same degree of care as the Receiving Party uses to maintain the confidentiality of its own highly confidential information and trade secrets and in no event with less than a reasonable degree of care.
3.3 The Receiving Party/'s obligations under this Agreement with regard to CONFIDENTIAL INFORMATION shall not include any information:
3.4 If the Receiving Party becomes aware of any threatened or actual misappropriation, unauthorized access to, use or disclosure of, or any inability to account for any CONFIDENTIAL INFORMATION, the Receiving Party will promptly notify the Disclosing Party of the details thereof and will immediately use its own commercially reasonable efforts and provide all reasonable assistance to the Disclosing Party to terminate or at least minimize any such threatened or actual misappropriation and unauthorized access, use or disclosure, and/or to recover any misappropriated or unaccounted for CONFIDENTIAL INFORMATION.
3.5 Publicity. Nothing contained in this Agreement shall be construed as conferring any right on either PARTY to use in advertising, publicity, promotional activities or other communication, any name, trade name, trademark, trade dress or other designation of the other PARTY including any contraction, abbreviation or simulation of any of the foregoing), without the express written approval of the other PARTY.
3.6 Injunctive Relief. YOU acknowledge that any breach or violation of this Agreement may cause irreparable harm to NIELSEN, for which remedies at law may not be adequate and therefore YOU agree that in the event of any actual or threatened breach or violation hereof, NIELSEN, in addition to any other rights or remedies it may have hereunder or at law or in equity, shall be entitled to seek such injunctive relief.
7.2. Within thirty (30) days after the EFFECTIVE DATE of any termination or expiration of this Agreement, each RECEIVING PARTY shall cease use of and tender to or destroy all CONFIDENTIAL INFORMATION of the DISCLOSING PARTY in the possession or control of the RECEIVING PARTY and/or its REPRESENTATIVES and deliver written confirmation of the foregoing to the DISCLOSING PARTY.
YOU INDICATE ACCEPTANCE BY SELECTING THE "I ACCEPT THE TERMS OF THIS AGREEMENT" OPTION BELOW. BY SELECTING THE "I ACCEPT THE TERMS OF THIS AGREEMENT" OPTION, YOU ACCEPT THESE TERMS ON BEHALF OF YOUR COMPANY AND AGREE THAT YOUR COMPANY SHALL BE BOUND BY SUCH TERMS.