By using the products and services provided to you by Comscore, Inc, you (“Client”) agree to the following terms and conditions.
1. Services. Comscore will provide the products and services (the “Deliverables”) described in an applicable service order (“Service Order”), subject to the following terms and conditions.
2. Fees. Unless otherwise specified, all fees due hereunder will be invoiced upon execution of any Service Order, and are immediately due and payable to Comscore. Interest in the amount of 1.5% per month will be charged on all late payments. Client is responsible for all applicable sales, use, excise, transfer, and other transaction taxes related to the purchase of the Deliverables.
3. Ownership of Custom Deliverables.
a. For the purposes of these terms and conditions, Custom Deliverables shall be defined as any and all products or services created exclusively for Client by Comscore.
b. Client shall own all right, title and interest in and to any "Custom Deliverables", provided that Comscore shall retain ownership of all right, title and interest in and to: (i) any materials created prior to, or independent of, these terms and conditions or the Service Order; (ii) any underlying data that are not specifically collected for Client; (iii) any analytical approaches used by Comscore to prepare the Custom Deliverables; and (iv) any standard demographic questions posed to Comscore panelists and their answers (collectively, the “Comscore Portion”). The Comscore Portion shall remain the exclusive property of Comscore and Client shall have the non-exclusive, non assignable and non-transferable license to use the Comscore Portion for Client’s internal business purposes.
4. License for Syndicated Deliverables.
a. For the purposes of these terms and conditions, "Syndicated Deliverables" shall be defined as all products and services that Comscore has prepared outside of these terms and conditions or the Service Order and that are made available for sale to Comscore’s existing and potential customers.
b. Subject to the restrictions set forth in this section and in a Service Order, Comscore grants Client a non exclusive, non-assignable and non-transferable license (except as permitted under Section 14 below) to use the Syndicated Deliverables for Client’s internal business purposes, including the provision of the Syndicated Deliverables to a third party agent for use solely in connection with Client’s internal business purposes. Unless otherwise specified in a Service Order, Client, or any third party acting on Client’s behalf, may not (i) sell, resell, license or transfer for value the Syndicated Deliverables; (ii) publicly disclose or publish any Syndicated Deliverable in its entirety, or the substantial equivalent of same; (iii) reverse engineer or attempt to reverse engineer the Syndicated Deliverables or any Comscore system; (iv) derive or attempt to derive any personally identifiable information from the Syndicated Deliverables; (v) unless responding to a subpoena or other valid process, introduce the Syndicated Deliverables or derivatives thereof as part of an investigation or court proceeding; or (vi) knowingly use the Syndicated Deliverables in a manner that creates any third party cause of action or liability on the part of Comscore, its affiliates or licensors.
c. The Syndicated Deliverables and the data contained therein (including, without limitation, data derived from any Comscore panel) are owned by or licensed to Comscore; except for the license set forth in Section 4(b) above, no transfer is made of any intellectual property right associated with the Syndicated Deliverables (including but not limited to: copyright, trademark, patent, business method and process rights, and database rights). Client is responsible for ensuring that all use of the Syndicated Deliverables complies with this license and for seeking advance written permission from Comscore for any uses not expressly authorized.
5. Passwords. Comscore may issue passwords allowing Client access to certain Deliverables. Client agrees to hold all passwords and related access information in strict confidence. Passwords may be distributed to authorized employees only, for their individual use in support of Client's internal business purpose. The passwords may not be used to access the website via a script, macro, program or other automated scheme. The passwords may only be used by the individual owner to interact directly with the web-based interface or other approved interface. Comscore reserves the right to require that Client change passwords at any time, for security or related reasons, with 24-hour notice to Client. Passwords for Syndicated Deliverables shall automatically expire upon expiration of the term of the Syndicated Deliverables. No password may be transferred or shared without Comscore approval. Client agrees that in the event of demonstration of an actual breach of this Section 5, an amount equivalent to the pro-rated value of one month’s fees for all Syndicated Deliverables being provided under a Service Order, per violation, shall be deemed and shall constitute liquidated damages, and not a penalty, and shall be paid promptly by Client to Comscore.
6. Confidentiality. Each party agrees to take commercially reasonable precautions to protect from disclosure the Confidential Information that it receives from the other. “Confidential Information” shall mean information that is disclosed in a manner that would reasonably suggest that the information is confidential, including without limitation unpublished information regarding Comscore’s methodology. Confidential Information shall not include any information that: (i) is, or later rightfully becomes, available to the public; (ii) was in the recipient’s rightful possession prior to receipt of the information from the discloser; (iii) is later disclosed to the recipient by a third party who has no obligation of confidentiality; or (iv) is independently developed by the recipient without the use or benefit of the Confidential Information. Client agrees not to make any public statements that would involve the unauthorized disclosure of Confidential Information including, without limitation, those that would constitute disparagement of Comscore’s business practices. In addition, a party may disclose Confidential Information to the limited extent required by applicable law, regulation or court order, including without limitation, disclosures or filings with regulatory agencies, such as the United States Securities and Exchange Commission. A party may also disclose Confidential Information to the limited extent required to comply with the rules of a national securities exchange or automated quotations systems such as the National Association of Securities Dealer’s Automated Quotations (NASDAQ). Comscore may identify Client as its customer, however all other details contained in a Service Order and these terms and conditions will remain confidential unless otherwise agreed in writing by the parties.
a. Each party warrants that (i) it has the full power and authority to enter into these terms and conditions and a Service Order and to perform the obligations contained therein ; and (ii) that its entry into, and performance under these terms and conditions and a Service Order, will not violate any law, statute or regulation or result in a breach of any material agreement or understanding to which it is bound.
b. Comscore warrants that it will prepare the Deliverables using professional care and skill, and will endeavor to correct material defects reported by the Client. Comscore further warrants that the Deliverables: (i) are the property of or licensed to Comscore and are free from claims or encumbrances as to ownership and title; and (ii) will not infringe the intellectual property or privacy rights of any third party. IN ALL OTHER ASPECTS THE DELIVERABLES ARE PROVIDED TO CLIENT “AS IS” WITHOUT WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, REGARDLESS OF WHETHER COMSCORE WAS ADVISED OF CLIENT’S INTENDED APPLICATION OF THE DELIVERABLES.
8. Limitation of Liability. Except for Comscore’s confidentiality obligation set forth in Section 6 above and Comscore’s indemnification obligation set forth in Section 9 below, in all other cases, and regardless of the legal theory or claim being brought, Client agrees that its sole and exclusive remedy against Comscore, its Affiliates and licensors will be limited to: (i) replacement of the portion of the Deliverables containing a material defect; or, if replacement is not commercially reasonable, (ii) repayment of the amounts paid by Client under these terms and conditions and a Service Order for the portion of the Deliverable containing the material defect. Except for both party’s confidentiality obligations set forth in Section 6 above and both party’s indemnification obligations set forth in Section 9 below, and except for Client’s password obligations set forth in Section 5 above, UNDER NO OTHER CIRCUMSTANCE WILL EITHER PARTY, ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY OF THE FOLLOWING: (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (II) LOST PROFITS, LOST REVENUES, LOSS OF BUSINESS ADVANTAGE OR RELATED HARMS, EVEN IF THE OTHER PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT EXPRESSLY AGREES THAT THIS LIMITED REMEDY IS REASONABLE AND APPLICABLE TO IT EVEN IF THE DELIVERABLES FAIL IN THEIR ESSENTIAL PURPOSE TO CLIENT.
9. Indemnification. Each party, at its own expense, agrees to indemnify, hold harmless and at the other’s option, defend the other (including its Affiliates, licensors, officers, directors, employees, agents, and representatives) from and against any third party claims relating to losses, claims, damages, liabilities, judgments, settlements or costs and expenses, (including reasonable attorneys’ fees) associated with, or resulting from, the indemnifying party’s material breach of these terms and conditions (including representations and warranties).
10. Term & Termination. These terms and condition will enter into force on the day the Deliverables are provided to you by Comscore and will end on the one year anniversary thereof or upon the provision of all Deliverables or as provided in a Service Order, whichever occurs later. Upon a material breach, and after the breaching party has been given 30 days written notice and a reasonable opportunity to cure such breach, a party may terminate the Service Oder for cause. In the event of such termination the non-breaching party will be responsible for fulfilling all obligations accrued by it up through the date of termination.
11. Force Majeure. Each party will be excused from performing obligations contained in these terms and conditions or a Service Order while such performance is prevented by an act of God, fire, flood, earthquake, transportation disruption, war, insurrection, labor dispute, or any other occurrence beyond the reasonable control of that party.
12. Data Protection Addendum. The parties hereby incorporate by reference the terms and conditions of the Data Protection Addendum (DPA) set forth at https://www.comscore.com/Data-Protection-Addendum as if fully set forth herein, and each agrees by their signature on this Agreement to be bound by the terms of this DPA as it may be updated from time to time without need for further action.
13. Survival. All terms and provisions under these terms and conditions that should by their nature survive the termination thereof will so survive, including but not limited to the Sections 2 - 6, 8, 9 and 12.
14. Independent Contractor. For the purposes of these terms and conditions, the parties will at all times be independent contractors with no right to bind or obligate the other in any manner whatsoever.
15. Assignment. Neither party may assign its rights or obligations under a Service Order or these terms and conditions without the prior written permission of the other. Notwithstanding the foregoing, no prior permission is required in the event that a party participates in a merger or consolidation or is the subject of a purchase of all, or substantially all, of its assets or capital stock, when such assignment provides each party with substantially the same services and commercial benefits as provided by the original parties under a Service Order and these terms and conditions, and is not made in whole or in part to a direct competitor of the non assigning party. Subject to the foregoing, the Service Order and these terms and conditions shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
16. Notices. All notices will be made in writing and given by personal delivery, overnight courier, facsimile, email or other means of transmission or by certified or registered mail to the primary contacts listed below.
a. If any provision of these terms and conditions is held to be invalid, illegal or unenforceable, the remaining provisions of these terms and conditions will remain in full force and effect.
b. These terms and conditions will be governed by the laws of the Commonwealth of Virginia without regard to conflict of law principles thereof.
c. The Service Order and these terms and conditions constitute the entire agreement between the parties relating to the subject matter contained in the Service Order, and supersedes all prior agreements, proposals, service orders, understandings, representations or other communications and may only be amended by mutual written agreement. No unilateral terms or conditions on materials issued by Client, including without limitation, purchase orders and order forms, will be used to interpret or amend the parties’ legal rights and responsibilities as they pertain to Deliverables provided hereunder. Non-material changes to these terms and conditions may be made by Comscore at any time. Comscore shall post any changes to these terms and conditions at http://www.comscore.com/Request/other/Terms_and_conditions, and Client agrees to check this site periodically for any changes that may have occurred.
d. For the purposes of these terms and conditions, “Affiliates” shall mean any entity that, directly or indirectly, controls, is controlled by, or is under common control with a party. Affiliates may independently enter into Service Orders and agree to be governed by the these terms and conditions as if they were an initial party.
e. The section headings of these terms and conditions are for convenience only and will neither be considered a part of, nor affect the construction or interpretation of, any provision of these terms and conditions.