[ STANDARD TERMS & CONDITIONS ]
TERMS & CONDITIONS – CUSTOM RESEARCH SERVICES ONLY
Last updated: 02/02/12
These Terms and Conditions ("T&Cs") apply to any custom research services ("Services") undertaken by GfK Custom Research, LLC (including its subsidiary Knowledge Networks, Inc.) ("GfK") for you ("Client") pursuant to an accepted proposal, work order, Project Statement or contract for services in whatever form agreed by the parties (such agreement, a "Service Contract", and collectively with these T&Cs, the "Agreement"). Acceptance of the Project Statement shall be deemed to include acceptance of these T&Cs, which shall not be altered except as set forth below.
TERMS OF PAYMENT: Client shall pay GfK fees and expenses as set forth in the Project Statement. Client shall pay all invoices within thirty (30) days of the date of the invoice and, with respect to any delinquent payment, Client shall pay a finance charge equal to the lesser of (i) two percent (2%) per month or (ii) the highest lawful rate. If, in the event of a termination of this Agreement without cause by Client, GfK is unable to terminate any contract or other obligation entered into on the basis of the continued performance of this Agreement, Client, at its sole cost and expense, shall assume and fulfill such contract or obligation.
INTELLECTUAL PROPERTY RIGHTS: Client shall retain ownership rights in all deliverables developed, prepared, designed and/or created by GfK at the request, and at the expense of, Client pursuant to this Agreement ("Deliverables"). Notwithstanding the foregoing, GfK shall at all times retain sole and exclusive ownership rights in (1) GfK's methodologies, including without limitation sampling, research, and methods of process or questioning, research products, sample or panel database(s), systems of analysis, questions or questionnaire forms (unless provided by Client or developed by GfK solely for Client), and completed questionnaires, as well as all computer software (including source code) or programs, models or systems, and analysis, used in GfK's performance of the Services, whether or not such methodologies or software are patentable or copyrightable (collectively, the "Techniques"), (2) any patent(s), copyright(s), trademark(s), service mark(s), trade secret(s) and/or proprietary right(s) of GfK's ("GfK IP"), and (3) any and all oral and written Confidential Information of GfK that is disclosed to Client in connection with the Services (collectively Techniques, GfK IP and GfK's Confidential Information shall be referred to as the "GfK Materials"). For the avoidance of doubt and notwithstanding any other provision herein, GfK shall own all right, title and interest in any improvements, enhancements and adaptations of the GfK Materials. GfK hereby grants to Client a non-exclusive right and license to use, and, in connection with such use, to copy and distribute within Client, any GfK Materials as included in any deliverables produced for Client by GfK, provided, however, that Client may not reverse engineer any of the GfK Materials in any manner, nor may Client modify or reuse any of the GfK Materials in any manner outside of such custom deliverables. The provisions of this section shall survive any termination or expiration of this Agreement.
WARRANTIES; INDEMNIFICATION: LIMITATIONS ON LIABILITY: Each party warrants that it has full power and authority to enter into this Agreement and it shall comply with all applicable laws, rules and regulations in its performance hereunder. GfK represents and warrants that all Services performed and deliverables delivered shall be rendered in accordance with generally accepted professional industry standards and practices for survey research including, without limitation, the Code of Standards and Ethics for Survey Research of the Council of American Survey Research Organizations ("CASRO"). Client's exclusive remedy for breach of this warranty shall be the re-performance of the applicable Service or refund of a pro rata amount of the applicable fees, as determined by GfK in its discretion. GFK HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES TO BE PERFORMED AND DELIVERABLES TO BE DELIVERED, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USAGE.
Each party (the "Indemnifying Party") agrees to indemnify and hold harmless the other party and its officers, agents, employees and subcontractors (the "Indemnified Parties") against any suit, proceeding or claims for damages (including reasonable attorney's fees) brought against the Indemnified Parties based on: (i) a claim that the Services or any deliverables, in whole or in part, infringe any patent, copyright, trade secrets, or other intellectual property right, (ii) the negligence or willful acts or omissions on the part of the Indemnifying Party, its officers, agents, employees and subcontractors and (iii) the breach by the Indemnifying Party of any of its covenants or obligations under this Agreement, except to the extent arising from or related to the negligence, willful misconduct or breach of this Agreement by the Indemnified Parties. Any claims for indemnification must be notified to the Indemnifying Party in writing. The Indemnifying Party will pay all damages and costs awarded therein against the Indemnified Parties and all expenses incurred by the Indemnified Parties, including reasonable attorneys' fees.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF SUCH PARTY IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL GFK'S AGGREGATE LIABILITY EXCEED THE FEES PAID TO GFK UNDER THE PROJECT STATEMENT. The fees charged for the Services provided are reflective of this allocation of risk. The provisions of this section shall survive any termination or expiration of the contract between GfK and Client.
USE OF INFORMATION: Figures contained in Deliverables are produced in accordance with commonly accepted market research methods and, as such, are subject to limits of statistical error. While reasonable and customary care is taken in conducting Services, GfK cannot guarantee the completeness, correctness, or accuracy of data sources or results from individual respondents. Accordingly, in no event shall GfK be liable for errors contained in any deliverable or other results or data or for any loss arising from or in connection with Client's use or interpretation thereof.
Except for use within the Client's organization in connection with its ordinary course of business, Client acknowledges and agrees that it will not, and will not permit its consultants or agents, to publish sell, distribute, copy or reproduce in full or part the deliverables without the prior written consent of GfK.
CONFIDENTIALITY: Each party acknowledges that, from time to time, it may be exposed to certain information which is the other party's confidential and proprietary information and not generally known to the public ("Confidential Information"). Each party agrees that it will take appropriate steps to protect the other party's Confidential Information from unauthorized disclosure, that it will not disclose such Confidential Information to any third party (other than its accountants, attorneys and affiliates), and that it will not use any such Confidential Information other than as authorized by this Agreement without the prior written consent of the other party. As used herein, the term "Confidential Information" does not include information that (i) is or becomes generally available to the public other than as a result of disclosure by the recipient or anyone to whom the recipient transmits the information, (ii) becomes available to the recipient on a non-confidential basis from a source other than the disclosing party who is not bound by a confidentiality agreement with the disclosing party, (iii) was known to the recipient or in its possession, in each case, without restriction, prior to the date of disclosure by the disclosing party, or (iv) is independently developed by the recipient without reference to the Confidential Information.
GfK shall not be required to disclose the identity of respondents or any respondent-identifiable information to Client, except in specifically described research situations, such as validation or modeling, permitted by and in accordance with the CASRO Code of Standards for Survey Research. Client hereby agrees to maintain the confidentiality of the identity of any respondents and any respondent-identifiable information disclosed to it. Client shall only disclose to GfK personally identifiable information ("PII") about its customers, individuals who purchase or use Client's products or services or others in material conformance with (i) any statement or policy that Client provides to such data subjects concerning the use and disclosure of personally identifiable information and (ii) applicable law.
RESPONDENT PRIVACY: In addition to the "Confidentiality" requirements above Client, its directors and its Agents are expressly prohibited from using any information including video or audio recordings (such as those produced as a result of any online community platform, chat rooms, and telephone surveys or otherwise) about GfK's survey respondents for the purposes of identifying the respondents. The Deliverables shall only be used for analyzing and reporting data at the aggregate level, and calibrating sample weights for statistical purposes. In addition, Client agrees to have any third parties who will have access to identifying information about GfK survey respondents sign a nondisclosure agreement in a form reasonably acceptable to GfK.
PANEL MEMBERS: Client acknowledges that GfK has spent significant time and resources recruiting individuals who have met necessary or desirable verification requirements and have been selected to join or opted in to GfK's panels ("Panel Members") and that any Panel Member PII is the Confidential Information of GfK and Client shall not: (a) decompile, reverse engineer or disassemble any portion of Panel Member PII, or (b) for its own or for a third party's account directly or indirectly recruit, solicit or otherwise contact any Panel Member.
MATERIALS RETENTION: GfK maintains Client deliverables for two years from the later of the date of delivery of such deliverables and the date of completion of the relevant project for such Client or such other period as required by law.
LIMITATIONS ON USE OF DATA: Notwithstanding anything else contained in this Agreement, Client may not, without the prior written approval of GfK, use any of the substantive data, information or reports collected or derived from the Services (1) while identifying GfK as the source of such data, information or reports, (2) for the purpose of supporting litigation that exists or is contemplated by Client at the time it engages GfK for the pertinent Services, (3) for supporting comparative advertising claims, (4) for resale or syndication, (5) for distribution to any media outlet in support of external public relations efforts, including news articles, interviews, press releases and events, (6) in any misleading or illegal manner, or (7) in a manner which would adversely impact upon the reputation or goodwill of GfK.
PRODUCT TESTING: Notwithstanding the provisions set forth under Confidentiality, Client acknowledges that certain research projects conducted at Client's request may require GfK to expose, reveal, disclose or describe Confidential Information, including, without limitation, new concepts, products, services or designs, to survey respondents ("Concept Testing"). Client hereby waives and releases GfK from and against any and all, loss, claim or liability resulting from or related to GfK's disclosure of Confidential Information to survey respondents in connection with Concept Testing. Should GfK engage in Concept Testing at Client's request, Client agrees to indemnify and hold harmless GfK and its officers, agents, employees and subcontractors against all claims against them for damages caused by and from all costs and expenses (including reasonable attorney's fees) and suits which may be brought against GfK, its officers, agents, employees, and subcontractors on account of such damages.
UNRELATED SUBPEONAS: If, at any time, Client becomes involved in a dispute or receives notice of a claim or is involved in litigation concerning the Services and Deliverables provided under this Agreement, the resolution of which requires the services or cooperation of GfK, GfK agrees to provide such services and to cooperate with Client in resolving such claim and/or litigation. Client shall be obligated to pay all costs, including reasonable attorneys' fees, incurred by GfK with respect to such cooperation and also, in connection with GfK's obligation to respond to any subpoena, request for production, or similar court order in any legal proceeding in which GfK is not a party arising from or related to the Services or Deliverables.
FORCE MAJEURE: Neither party shall be responsible for delays or failure of performance (other than the failure to make any payment when due) resulting from acts beyond the reasonable control of such party, including but not limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers to perform, flight cancellations or delays, governmental regulations, power failure(s), earthquakes and other natural disasters.
GENERAL PROVISIONS: This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement may be modified only in a writing signed by both parities. Purchase Orders or similar documentation may be submitted for administrative purposes only, but the terms and conditions contained therein shall be of no force and effect. Neither party shall assign this contract without the prior written consent of the other party hereto; provided, that GfK may assign this contract to any entity controlling, controlled by or under common control with GfK so long as the assignee agrees in writing to assume all obligations of GfK herein. Each party further agrees that the relationship between the parties under this contract is, and will at all times remain, one of independent contractors, and neither party will at any time represent itself as a joint venture partner, agent or other representative or as otherwise having authority to assume or create obligations on behalf of any other party. Should any clause herein be held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provision shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this contract shall remain binding upon the parties hereto. The failure of either party to take action as a result of a breach of this contract or any other failure to perform by the other party shall constitute neither a waiver of the particular breach involved nor a waiver of either party's right to enforce any or all provisions of this contract through any remedy granted by law or this contract. This contract shall be interpreted under the laws of the State of New York and each party hereby irrevocably submits to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York or any court of the State of New York located in the City of New York and waives any objection based on forum non conveniens or any other objection to venue.
