Nielsen Download License Agreement

This Nielsen Digital Code Extractor Tool 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 selecting the "I ACCEPT THE TERMS OF THIS AGREEMENT" option below ("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.

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.

IF YOU ARE NOT WILLING TO BE BOUND BY ALL THE TERMS, SELECT THE "I DO NOT ACCEPT THE TERMS OF THIS AGREEMENT" OPTION BELOW AND THE INSTALL PROCESS WILL NOT CONTINUE.

1. 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.
   • "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.
   • "LOCATION" means those facilities owned or controlled by YOU or YOUR REPRESENTATIVES.
   • "NIELSEN DIGITAL CODE EXTRACTOR TOOL" means NIELSEN's executable validator application, all UPDATES thereto, and all parts, portions, features or functions thereof and interfaces thereto ("FUNCTION(S)"), including but not limited to FUNCTIONS for verifying the ID3 TAGS in a file or transport stream, verifying and decoding WATERMARKS, and allowing for OUTPUT to be made visible to YOU.
   • "NIELSEN PRODUCT" means the NIELSEN DIGITAL CODE EXTRACTOR TOOL; all UPDATES thereto and FUNCTIONS thereof, ID3 TAGS, WATERMARKS, OUTPUT, and all related documentation provided by NIELSEN to YOU.
   • "OUTPUT" means any content or data within ID3 TAGS and/or WATERMARKS and any other data generated by one or more of the FUNCTIONS of a NIELSEN DIGITAL CODE EXTRACTOR TOOL provided under this Agreement.
   • "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.

2. Intellectual Property and Restrictions. 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 DIGITAL CODE EXTRACTOR TOOL at a device at the LOCATION and use the NIELSEN DIGITAL CODE EXTRACTOR TOOL to verify the ID3 TAGS in a file or transport stream.

3. Restrictions. Notwithstanding anything else in this Agreement:
   1. NIELSEN PRODUCT shall be used by or for YOU for the sole purpose of verifying the ID3 TAGS in a file or transport stream (including without limitation by comparing OUTPUT from ID3 TAGS to OUTPUT from WATERMARKS), in connection with YOUR encoding of the audio stream with ID3 Tags for the sole purpose of facilitating measurement by Nielsen, pursuant to separate written agreement between the PARTIES (the "PURPOSE").
   2. 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.
   3. 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 OUTPUT, ID3 TAGS or WATERMARKS, 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; (f) attempt to obtain the name, location of, or contact, any NIELSEN panelist, household member or other person(s) furnishing data to NIELSEN ("RESPONDENT"); and (g) use or disclose any RESPONDENT's data (in the event that such data or information comes to its attention); and will keep all information it learns about any RESPONDENT in confidence and will promptly notify NIELSEN that such information has come to its attention.
   4. YOU shall not use NIELSEN PRODUCT with or in the development of any item(s) of equipment enabled with ID3 TAG or WATERMARK decoding functionality, regardless of how the functionality is implemented (including but not limited to any combination of one or more of hardware, software or firmware), that decodes ID3 TAGS or WATERMARKS for the purpose of: (i) audience measurement, or (ii) determining the identity of the content (except as explicitly permitted for the PURPOSE under this Agreement). YOU shall not: (a) combine, integrate, compare, validate or in any way use OUTPUT with any other data or with software programs provided from any other source; or (b) store OUTPUT for any reason or use OUTPUT for any purpose outside the PURPOSE, except as approved in writing by Nielsen. YOU may only use OUTPUT in real-time and not for the purpose of building a database or any reporting or for any other purpose except as specified herein.
   5. To the extent there is a conflict between this Section 3 and anything else in this Agreement, this Section 3 will govern.
   4. Third Party Materials. 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.
   5. 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.
   6. Confidentiality.
      1. For the purposes of this Agreement, "CONFIDENTIAL INFORMATION" shall mean: all NIELSEN PRODUCT; 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. 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.
      2. 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. The Receiving Party's obligations under this Agreement with regard to CONFIDENTIAL INFORMATION shall not include any information: (i) 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), (ii) 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; (iii) 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 (iv) 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.
      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.
   7. 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.
   8. 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.
   9. 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 ITS USE OF NIELSEN PRODUCT 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.
   10. 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 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, 3, AND 6.
   11. 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.
   12. Term and Termination. This Agreement shall commence on the EFFECTIVE DATE and continue until terminated (the "Term"). Either Party may terminate this Agreement for any reason or no reason, upon thirty (30) calendar days' notice to the other Party. This Agreement will automatically terminate upon the termination of the separate written agreement between the PARTIES in existence in connection with the Purpose. Within thirty (30) days after the EFFECTIVE DATE of any termination 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.
   13. 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.
   14. 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 to substantially all or all of the relevant business of NIELSEN. Any purported assignment in violation of this Section 14 shall be null and void.
   15. Taxes. LICENSEE shall have sole responsibility for all fees and taxes related to its use of NIELSEN PRODUCT, including but not limited to value-added, goods, services, sales and use taxes.
   16. 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.
   17. 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.
   18. Entire Agreement. This Agreement constitutes the entire Agreement between the PARTIES on the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails 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.