BASES and Consumer Insights
Effective May 16th, 2023
These NIQ Custom Services Terms and Conditions (“T&Cs”) together with any proposal, project agreement, statement of work or similar document describing the Services (each and collectively, the “SOW”) signed or approved by Client (the T&Cs and the SOW together, the “Agreement”) govern the provision of Services from NIQ to Client. For each SOW, “NielsenIQ” or “NIQ” means the NIQ entity that has signed the SOW, and “Client” means the entity that has signed the SOW or is otherwise contracting with NIQ to receive the Services thereunder. In the event of a conflict, ambiguity or inconsistency between the Agreement and any other terms between the parties, the Agreement will govern with regard to Services. To the extent any other terms have been or are proposed or presented at any time by Client, including any terms of service incorporated into a purchase order, invoice, portal or otherwise, Client agrees that such terms are hereby expressly rejected by the parties and shall be of no force and effect. These T&Cs do not apply to any other NIQ services or products, including NIQ’s Retail Measurement Services, Consumer Panel Services, NIQ Analytic Consulting Services, other syndicated products or services or, except as set out herein, technology.
1. Certain Definitions
Capitalized terms shall have the meaning given to them in the Agreement. Unless the context requires otherwise, references to the word “Include” shall mean “including, without limitation” or “including, but not limited to.”
1.1. “Affiliate” means any entity either directly or indirectly controlling, controlled by or under common control with either party. With respect to NIQ, an “Affiliate” shall not include (a) Advent International Corporation or its affiliates (other than AI PAVE Dutchco I B.V. and its controlled subsidiaries), (b) any funds managed or advised by Advent International Corporation or its affiliates and any legal entities controlled by such funds (other than AI PAVE Dutchco I B.V.and its controlled subsidiaries) or (c) any partner, officer, director, manager, principal or member of Advent International Corporation or its affiliates (other than any partner, officer, director, manager, principal or member of AI PAVE Dutchco I B.V.or its controlled subsidiaries).
1.2. “Client Data” means any Client or third-party data, content, specifications, instructions, information, Products, access codes or other materials provided or procured by or on behalf of Client.
1.3. “NIQ Intellectual Property” means the Services, all questionnaire design, general market research know-how, data, models, methodologies, algorithms, processes, outputs, Technology, materials, specifications, templates, analyses, concepts, expertise, know-how, elements of graphics, design, user interface, data-derived metrics, norms, benchmarks, syndicated data, data compilations and other data and tools or proprietary materials or derivatives thereof included in, used, developed, discovered or gained in connection with providing the Services and any suggested modifications, improvements, or feedback thereto, except for Results as set forth in Section 2.3 below.
1.4. “Products” means any products, product concepts or services, including food, drink, household goods, software, medications or audio/visual stimuli that are consumed, examined or used by research participants.
1.5. “Results” means the project-specific results of a Services project to the extent created solely for and pertaining solely to Client and based on Client Data.
1.6. “Services” means the BASES and/or Consumer Insights services performed, and related deliverables provided, by NIQ on a project basis, based on Client Data and pertaining solely to Client.
1.7. “Technology” means NIQ systems, tools, and functionality such as, among others, platforms, web portals and software accessed/used by Client or otherwise provided by NIQ in connection with the Services, including updates and new versions provided by NIQ.
2. Ownership and Intellectual Property Rights
2.1. NIQ Intellectual Property. NIQ owns all rights, title and interest in and to NIQ Intellectual Property, and Client agrees that it constitutes and contains valuable assets (including copyrights, trademarks and trade secrets) and confidential information of NIQ and that Services were developed using substantial effort and resources. NIQ grants to Client a limited non-exclusive, non-assignable, non-sublicensable license to use NIQ Intellectual Property solely to the extent necessary to use Results as expressly permitted under the Agreement.
2.2. Client Data. Any Client Data that Client provides or uploads, posts, incorporates or otherwise uses in Services shall remain the property of Client or Client’s licensor. Client shall (a) have full right and authority to provide NIQ with Client Data, and (b) not upload, post or otherwise provide Client Data unrelated to Client’s business. All Products included in Services shall have all legally required warning and labels, all applicable legal and regulatory clearance to be released into the market, otherwise comply with applicable law and shall not cause injuries. NIQ is not responsible or liable for the accuracy, reliability, validity, completeness, timeliness, or suitability of Client Data, and has no responsibility for any Client Data quality issues or late delivery thereof. No additional terms or additional requirements, including payment of fees, are required or imposed on NIQ in its use of Client Data.
2.3. Results. Client will be deemed to own Results, subject to the provisions of the Agreement including permitted uses and restrictions. Client grants to NIQ a limited license to retain all project data in those databases used by NIQ for benchmarking, segmentation and validation of NIQ analyses, provided that they are used by NIQ solely on a non-Client-identifiable basis.
2.4.1 Client may use Technology (a) to access Services; and/or (b) with Client Data, if Client holds a specific license from NIQ to do so. Extraction into, storage or other use of Services, or any portion thereof, in a non-NIQ database, data warehouse, data lake or data integration software is prohibited without a separate license from NIQ. All other use of Technology is prohibited unless expressly licensed by NIQ.
2.4.2 Each individual user accessing/receiving Services via Technology must have a user ID and password assigned by NIQ. Client shall ensure that its users hold their user IDs and passwords in strict confidence and that user IDs and passwords are not used by or shared with others.
2.4.3 Client shall not disclose Technology to, or permit the use of Technology by, any third party without a separate agreement between NIQ and such third party. Installed copies of Technology such as software shall not exceed the number set forth in the Agreement.
2.4.4 Client shall notify NIQ if any access needs to be terminated or re-assigned (e.g., because an employee has left); or if Client becomes aware of any actual or threatened unauthorized disclosure of Services (or any portion thereof) or misuse of any passwords/user IDs or other non-compliance by its users/employees. If NIQ has a reasonable basis to believe that there is a security issue or violation of this provision, NIQ may change, suspend or revoke passwords/user IDs or ultimately, suspend Client’s access to Services.
2.4.5 Client is responsible for selection, installation and maintenance of all hardware, third-party software and related materials required for its operation of Technology. Client shall ensure that its use of Technology including any Client Data will be free of any viruses, harmful routines or hardware components, malware, tracking software, cookies or any software routines or hardware components that will allow unauthorized access or disable or erase software, hardware or data.
2.4.6 NIQ will exercise reasonable efforts to schedule software and database maintenance for Technology on weekends or after normal NIQ business hours.
3. Use of Services
Client may use Results (a) for its internal business intelligence; (b) in the conduct of its business with partners, suppliers and customers bound by conditions of confidentiality; and (c) with NIQ’s prior written consent, in advertising or promotion of Client’s products or services. If any Affiliate of Client (“Client Affiliate”) is named on the SOW, any rights, access and use by such Client Affiliate shall be subject to the terms and conditions of this Agreement, which such Client Affiliate shall be deemed to have accepted upon executing such SOW. Client shall ensure that its Affiliates comply with the terms of this Agreement and shall be fully responsible for all acts, defaults and omissions of such Client Affiliates as fully as if they were acts, defaults or omissions of Client.
4. Restrictions on Disclosure and Use
Client may not, without NIQ’s prior written approval in each case, use Services or any part thereof (1) subject to Section 10(b), in legal proceedings or (2) with the general public, including in advertising, marketing or promotional claims. Client may never use Services or any part thereof to (3) state or imply directly or indirectly that any analysis, conclusion or commentary by Client is attributable to NIQ, or that NIQ endorses, rates, approves or disapproves, or recommends for or against any entity’s products or services; or (4) otherwise present Services in an inaccurate, disparaging or misleading manner. Client agrees not to use, or have or let any third party use, Results or NIQ Intellectual Property to (i) reverse engineer same or (ii) create, enhance or benefit a service that could compete with any of NIQ’s services. Rights not expressly granted are expressly reserved.
5. Project Records; Data and Content Protection
5.1 Survey questionnaire responses shall be stored by NIQ in accordance with applicable market research ethical guidelines. NIQ will not be required to disclose any personally identifiable or confidential information or communication of research participants (collectively, “PII”) absent the relevant subject’s specific prior written consent or an unappealable court order in each instance, and parties agree that Services will not involve the receipt or disclosure of any PII. Otherwise the terms located at https://nielseniq.com/global/en/legal/bases-ci-privacy-services-agreement/ will govern any such receipt or disclosure.
5.2 Mystery Shopper Services. In addition to the obligations set out in Section 5.1, Client shall notify any personnel who may be monitored of the fact that they may be monitored. Such notification must include the following elements: (a) that this activity will take place within a future time period; (b) the objectives and general nature of the study; (c) whether data subjects will be identified or not; and (d) whether audio, video, electronic or other recording of observations or interviews will be carried out (including adequate information regarding purpose, recipients and storage of the recording). Additionally, prior to any Mystery Shopper service where staff remuneration to any extent depends on commission or bonuses, Client shall notify any personnel who may be monitored whether consideration will be given to making good any loss of salary due to time spent dealing with mystery shoppers.
6. Charges, Billing, Taxes
6.1 Payment for Services shall be in the currency set forth in the Agreement, due and payable within thirty (30) days of the invoice date (“Payment Due Date”) and, unless otherwise set out in the SOW, shall be in two installments: (i) 80% upon field start and (ii) balance upon delivery of final deliverable. If an undisputed invoice is not paid by the Payment Due Date, NIQ may suspend applicable Services until any such undisputed invoices are paid. NIQ may charge interest on undisputed invoices unpaid after the Payment Due Date at the lesser of 1.5% per month or the maximum allowed by law or specified in the relevant SOW.
6.2 The terms and conditions set forth in a purchase order or other documents issued by Client with respect to Services will be deemed void and null and Services will be controlled by the terms and conditions of the Agreement.
6.3 If Client requires an invoice to include any billing documentation, e.g., purchase order number, evidence of arrangement, or other Client-specific billing details (“Billing Details”), Client shall provide such Billing Details to NIQ as follows: (i) no later than start of fielding or service delivery (where the services does not include fielding); and (ii) during the term of the SOW, changes to Billing Details must be submitted no later than the date on which an invoice is scheduled to be issued. It is a material obligation of Client to ensure that NIQ has correct Billing Details upon SOW approval. By failing to do so, Client agrees that the invoice is due and payable by Client without the Billing Details. If an invoice needs to be reissued due to actions or inactions of Client, the reissued invoice will be payable based on the original invoice’s payment due date. NIQ may at its option suspend applicable Services until all Billing Details are received.
6.4 If Client disputes any amount due hereunder, such dispute must be made only upon a good faith basis for believing the amount billed to be incorrect. Client shall provide written notice to NIQ of the basis for such dispute within five (5) days of the invoice date and shall include with such notice all details reasonably necessary to substantiate its claim, which details, to the extent practicable, shall be reasonably capable of being verified by NIQ. Client shall pay all amounts that are determined to be payable by resolution of the dispute within ten (10) days following such resolution. Any dispute shall not relieve Client of the obligation to timely pay all undisputed amounts.
6.5 NIQ’s charges for all Services are exclusive of all applicable taxes. Client is responsible for all value-added, consumption, goods and services, gross receipts, excise, sales, use and similar taxes due with respect to the Services. To the extent that Client is required by law to withhold or deduct any applicable taxes from payments due to NIQ, Client will use reasonable commercial efforts to minimize any such taxes to the extent allowed by law or treaty, and Client will furnish NIQ with such evidence as may be required by relevant taxing authorities to establish that such tax has been paid so that NIQ may claim any applicable credit. Upon written request from Client, NIQ shall provide any relevant exemption certificates, forms or other information which allows Client to reduce the required withholding tax/deduction and allow Client reasonable time to furnish the original tax withholding/deduction receipts issued by the relevant taxing authority evidencing such tax payment. If the tax rules of Client’s country require value-added tax to be withheld on the fee payable, the parties agree that the required amount of value-added tax shall be added on top of the fee and then withheld from the resulting value-added tax inclusive amount.
7. Term and Termination
7.1 Each SOW shall remain in effect between the parties until completion of the applicable project, unless terminated earlier in accordance with its terms.
7.2 Each party may terminate the Agreement in the event (a) of a material breach by the other party which remains uncured after thirty (30) days following notice; or (b) the other party becomes the subject of a proceeding in bankruptcy/insolvency or its equivalent. NIQ may at any time stop Services and terminate the applicable SOW without penalty or liability if NIQ determines in its sole opinion that continuing may result in non-compliance with laws or is otherwise not in NIQ’s best interest.
7.3 If the SOW is terminated by Client for any reason, Client shall pay for NIQ’s fees up to the effective date of termination, and, if NIQ is unable to terminate any obligation attributable to Services contracted to be performed for or on behalf of Client, then Client also shall reimburse NIQ for the reasonable costs related to such obligation, whether such amount is a fee for services or a termination fee. Without limiting the foregoing, the NIQ early cancellation fees set out in the SOW shall apply.
7.4 In addition to all other rights and remedies available to NIQ at law or in equity, NIQ may immediately suspend Services or any component thereof for as long as Client materially fails to perform or is in material breach of its obligations set forth in the Agreement or as otherwise expressly provided herein. If Client becomes designated as a Sanctioned Party, or becomes associated, controlled, or owned by a Sanctioned Party or Embargoed Country, NIQ may terminate the Agreement and/or suspend Services, without any liability to NIQ. “Embargoed Country” means any country, government or territory subject to a comprehensive embargo maintained and administered by one or more applicable governments; and “Sanctioned Party” means any individual, group, entity or government subject to any applicable sanctions laws or regulations.
8. Disclaimer and Limitation of Liability
8.1 NIQ shall perform Services in accordance with the professional standards applicable to the market research industry. Client recognizes that Services constitute estimates derived from sample surveys carried out in accordance with NIQ’s market research methods and are subject to sources outside NIQ’s control and limits of statistical error; are not intended as a substitute for financial, investment, legal, business or other professional advice; and Client remains solely responsible for its decisions, actions, use of Services and compliance with applicable laws. NIQ DISCLAIMS, AND CLIENT HEREBY WAIVES, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, TO CLIENT OR TO ANY THIRD PARTY, CONCERNING SERVICES AND OUTPUT OBTAINED THEREFROM, INCLUDING ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
8.2 Subject to this Section entitled Disclaimer and Limitation of Liability, if NIQ fails in any material respect to deliver Services in accordance with the terms set forth in the Agreement, NIQ will use commercially reasonable efforts to cure such failure; and, if NIQ is unable to effect such a cure, it will give Client a pro-rata refund of fees paid for the affected portion of Services as Client’s sole and exclusive remedy for such failure. NIQ shall not bear any obligation, loss or liability attributable to Client Data or other third-party sources. Notwithstanding anything to the contrary in the Agreement, the total aggregate liability of NIQ, its affiliates and their third-party sources arising out of or relating to the Agreement for any reason shall not exceed the total fees paid by Client to NIQ under the Agreement for the affected portion of the Services. In no event shall NIQ, its affiliates or their third-party sources be liable, in contract, tort (including negligence) or otherwise, for special, incidental, indirect or consequential damages (including lost profits) arising out of or relating to the Agreement, including any use by Client or others of Services, even if NIQ has been advised of the possibility of such damages. Nothing in the Agreement seeks to limit or exclude any liability which cannot be limited or excluded under applicable law. NIQ shall not be liable for any claims brought more than 2 years after the cause of action has accrued.
9.1 NIQ shall indemnify, defend and hold Client harmless, or at its option and expense settle, any cause of action brought against Client which is based on a third-party claim that the permitted use of Results as provided by NIQ infringe any copyright, trademark or trade secret of the claimant (a “Claim”); provided that Client gives NIQ prompt written notice of such claim and NIQ has control of the action including sole right of settlement (except that NIQ will not settle any claims without Client’s prior written consent unless the settlement fully and unconditionally releases Client and does not require Client to pay any amount, take any action or admit any liability). NIQ shall pay any final award or settlement resulting from such claim. If a Claim is made, NIQ, at its election, shall either (i) procure for Client the right to continue using such Results, (ii) modify them to make them non-infringing but continue substantially to meet the specifications, or (iii) replace them with non-infringing Results of substantially like functionality or terminate the Agreement subject to refund of relevant charges paid under the SOW. Notwithstanding the foregoing, NIQ shall have no liability for any claim arising from (a) any combination of Results with non-NIQ content, data, software, equipment, components, systems, services, tools or intellectual property, except for a modification provided by NIQ to Client, (b) any modification of Results; or (c) Client’s continued use of Results in any form previously provided to Client after NIQ has provided a replacement or modified form to Client. This clause sets out NIQ’s entire liability for any infringement of intellectual property.
9.2 Client shall indemnify, defend and hold harmless NIQ, its affiliates and their third-party sources from and against all claims, damages, loss or expenses (including reasonable attorneys’ fees) arising out of (a) Client’s use or disclosure of Services including Results, and (b) third-party claims related to Client Data, including in relation to the description, presentation, use or consumption of any Product, whether or not Client is the manufacturer or distributor or agent for distribution of such Product, and regardless of termination of the Agreement. Client will not settle any claims without NIQ’s prior written consent unless the settlement fully and unconditionally releases NIQ and does not require NIQ to pay any amount, take any action or admit any liability.
10. General Provisions
10.1 Survival. The termination of the Agreement will not affect any provisions of the Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: payment obligations, termination, effect of termination, intellectual property ownership, confidentiality, indemnification, limitation of liability and this General Provisions section.
10.2 Confidentiality. NIQ and Client each acknowledge that each (“Discloser”) may disclose Confidential Information to the other party (“Recipient”) during the term of the Agreement. “Confidential Information” means any confidential or trade secret information disclosed by Discloser to Recipient, either orally or in writing, including the terms and conditions of the Agreement, as well as customer lists, marketing and product plans, technology, systems, business processes, and any other financial, sales, marketing or business information that is identified as or should reasonably be understood to be, confidential. Data, information or materials disclosed shall not be deemed Confidential Information if (a) disclosed in public materials without breach of the Agreement or otherwise in the public domain; (b) lawfully obtained from a third party without any obligation of confidentiality; (c) lawfully known to Recipient prior to disclosure by Discloser; or (d) independently developed by Recipient without use of or reference to the Confidential Information. Recipient may disclose Confidential Information if compelled by law, regulation or governmental action or order, provided that, if legally permitted to do so, Recipient provides Discloser with prompt written notice thereof and limits the disclosure to the minimum necessary to comply with such legal requirement. Recipient will treat all Confidential Information of Discloser with the same degree of care as it accords to its own Confidential Information, but in no event less than a reasonable degree of care; and will destroy/securely delete or return to Discloser all Confidential Information upon termination or expiration of the Agreement.
10.3 Force Majeure. Neither party shall be liable for any delay, failure or omission in the performance of its obligations under the Agreement (excluding the obligation to make payments when due) due to any cause beyond its reasonable control, wherever arising and not due to its own negligence and which cannot be overcome by the exercise of due diligence, including failure of any communication system or on- or off-line computing equipment, labor troubles, inability to procure materials or information, governmental or judicial orders, acts of God, acts of terrorism, weather conditions, epidemics, pandemics, third-party interference or other similar reason beyond its reasonable control.
10.4 Right to Audit. During the term of the Agreement and for a period of two (2) years following termination or expiration of the Agreement, upon reasonable notice to Client, NIQ shall have the right to audit usage of Services or any portion thereof by Client, provided that Client shall not be required to submit to such audit more than twice in any calendar year.
10.5 Independent Contractor Relationship. The parties to the Agreement are independent contractors and neither shall have authority to bind or obligate the other.
10.6 Notices. All notices shall be in writing and deemed given on the date received when delivered personally or by a reputable delivery service with proof of delivery; or when emailed with confirmation of transmission i.e. read receipt (a) if to NIQ, at the NIQ address set forth above, Attention: Legal Department, and via email to firstname.lastname@example.org, with a copy to the NIQ contact and address indicated in the Agreement (if applicable), and (b) if to Client, at the Client contact and address set forth in the Agreement.
10.7 Assignment. This Agreement shall be for the benefit of and binding on the parties and their respective successors and assigns. It may not be assigned by either party without the prior written consent of the other, except that NIQ may, upon notice, assign or otherwise transfer its rights and obligations under the Agreement to an affiliate or to a successor to its relevant business.
10.8 Dispute Resolution. In the event of a dispute between Client and NIQ, each party will identify one or more executives of senior rank to discuss the issues and attempt to resolve the dispute in good faith. Failing resolution within 30 days, either party may resort to its legal or equitable remedies, subject to the provisions of the Agreement.
10.9 Entire Agreement; Modification or Amendment; No Waiver. This Agreement, including any amendments, schedules, annexes, appendices thereto, contain the entire understanding of the parties with respect to its subject matter and supersedes all previous discussions and agreements between the parties pertaining to such subject matter. This Agreement shall not be modified or amended except in a writing executed by the parties. No waiver by a party of any breach of the Agreement by the other party shall be deemed a waiver of any prior or subsequent breach.
10.10 Counterparts; Electronic signatures. This Agreement may be signed in counterparts, each of which will be deemed an original and which will together constitute one document. The parties expressly accept that electronic signatures of the Agreement will be deemed original signatures and will have the same validity and effect.
10.11 Governing Law. Governing Law shall be as set forth in the SOW.