This version of the Ad Measurement Terms and Conditions applies immediately to all Order Forms entered on or after August 8, 2022.
These Ad Measurement Terms and Conditions (“Terms and Conditions”) govern the provision and use of the Ad Measurement and related services provided by DISQO, Inc. (“DISQO”), which may be referred to as, and/or include, the Brand Lift, Outcomes Lift, and/or Cross Media services (“Service(s)”). Other terms associated with the use and provision of the Service, such as pricing and the entity licensing the Service (“Client”), are set forth in an order form or statement of work that references these Terms and Conditions and is executed by Client and DISQO (“Order Form”, “Statement of Work” or “SOW”). These Terms and Conditions together with the Order Form are referred to as the “Agreement.” The parties hereto sometimes are collectively referred to herein as the “Parties” and individually as a “Party.”
Subject to the terms and conditions of the Agreement, DISQO agrees to provide, and Client agrees to purchase, the Services as set forth in an Order Form provided by DISQO and executed by the Parties. DISQO reserves the right to accept or reject each Order Form in its sole discretion and will not commence performance of the Services for a project until there is a mutually executed Order Form in place for such project between Client and DISQO. DISQO agrees to comply with all applicable laws, rules, regulations, orders and decrees of governmental authorities (“Applicable Laws”) applicable to its general business operations in its performance of the Services under this Agreement.
The Agreement will enter into force on the date the Order Form is executed by the Parties or as otherwise specified on the Order Form, and will terminate upon expiration or termination of the Order Form or as otherwise set forth on the Order Form, unless earlier terminated as provided for herein (“Term”).
Client shall obtain all necessary licenses, rights, consents, and permissions as needed to allow DISQO (a) to measure the advertising and otherwise provide the Services, including, but not limited to, the placement of and DISQO collecting data from pixels, tags, web beacons and other tracking tools on third party sites and applications, and (b) to use the information and materials provided to or collected by DISQO as required by Client for the Services.
Client shall not use the Services, or any aspect thereof (including any Research Report (as identified and defined in the Order Form)), for any purpose, or in any way, (a) prohibited by any Applicable Laws, including those relating to consumer marketing or privacy, (b) that infringes or misappropriates any third party’s intellectual property rights or violates any personal or privacy rights; or (c) in any manner that may disable, impair, damage or interfere with any of DISQO’s hardware, software, applications, proprietary data, and intellectual property rights. Client shall not introduce into the Services or any DISQO software, system or network, any viruses, Trojan horses, trap doors, worms, cancelbots or other computer programming routines or software intended to damage, interfere with, or harm any system, data or personal information. Client shall perform its obligations under the Agreement in compliance with all Applicable Laws, including without limitation laws relating to privacy and data protection and security.
Without the express, written consent of DISQO, Client and Client’s advertisers (as applicable) shall not (a) directly or indirectly contact or attempt to contact or communicate with any potential or actual survey respondents or any other DISQO panel members or members of the Survey Junkie community (“DISQO Panel Members”), (b) collect or attempt to gain any personal data, personal information or any other information from any DISQO Panel Members, (c) utilize any panel routing technology or otherwise reroute or redirect any DISQO Panel Members, or (d) use any tracking or other technology to track or collect any data from any DISQO Panel Members.
Client represents and warrants that it is not a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring access to or control of items under the Agreement, or with which DISQO is prohibited from doing business. Client further represents that the Service shall not be used in any way that would violate U.S. export controls or economic sanctions laws or regulations.
Client agrees to pay the applicable fees as stated in each Order Form (the “Fees”). Client shall pay all fees and expenses in United States Dollars and within thirty (30) days of invoice date. An invoice will be considered correct and undisputed unless written objection is provided within ten (10) business days of its receipt.
The Fees payable hereunder are exclusive of any sales, use, excise, value added, import, or other applicable deductions, withholdings, taxes, tariffs or duties (“Taxes”). Client is solely responsible for payment of all Taxes except for any taxes based solely on DISQO’ net income. If Client is required to pay any Taxes, Client shall pay such Taxes with no reduction or offset in the Fees payable to DISQO. If DISQO has the legal obligation to pay or collect Taxes for which Client is responsible, Client agrees to pay such Taxes and DISQO will invoice the appropriate amount to be paid by Client.
Client shall be responsible for interest on all amounts overdue by more than thirty (30) days at a rate of the lesser of one and one-half (1.5) percent per month or the maximum rate allowable by Applicable Laws. Client also agrees to pay any reasonable attorneys’ fees and/or reasonable collection costs incurred by DISQO in collecting any past due amounts from Client. If Client fails to pay fees invoiced by DISQO in a timely manner, in addition to any other rights or remedies available to DISQO, DISQO may suspend the Services until Client pays all such overdue amounts, and/or upon three (3) business days’ notice, discontinue the provision of Services
Client understands and agrees that, in connection with the Services, Client may use or have access to DISQO’s proprietary information, data (including data of or relating to DISQO Panel Members), and/or services, including, but not limited to, DISQO Dashboard, sample data, behavioral data, methodologies, software, databases, cookie and analytical data, other aspects and technologies related to the Services, and other materials and intellectual property of DISQO (“DISQO Information”). DISQO is the exclusive owner of all right, title and interest (including all intellectual property rights) in and to DISQO Information including the Services, any enhancements thereto and any other materials provided to Client by DISQO. The license rights set forth in these Terms and Conditions are the only rights that DISQO is granting to Client under the Agreement. Notwithstanding anything stated to the contrary and except for the Research Report as set forth in Section 7 below, DISQO is not transferring or assigning any rights of ownership, interest or title to Client under the Agreement.
During the Order Form Term, and subject to the terms herein, DISQO grants to Client a limited, non-sublicensable, revocable, non-exclusive and non-transferable license to access and use the Services in the United States as provided to Client by DISQO solely as necessary for the Services as may be further described in the Order Form. Client may not use the Services except pursuant to the limited rights expressly granted in the Agreement. Without limiting the generality of the foregoing, Client shall not (i) decompile, reverse engineer, or disassemble the Services, DISQO Dashboard, or any other related product or software of DISQO or (ii) adapt, modify, sublicense, rent, lease, resell for profit, distribute (except as may be otherwise provided in the Agreement) or create derivative works based on the Services, DISQO Dashboard, or any other related product or software of DISQO. DISQO may use, without limitation, any suggestions, comments or other feedback about the Services provided by Client.
Client may provide certain materials to DISQO for use in connection with DISQO’s provision of the Services, which may include advertisements, ad copy, tags, pixels, survey questions/design, survey criteria and/or other material or content (“Client Materials”). Client represents and warrants that it owns or has the necessary permissions to use and authorize the use of Client Materials in connection with the Services and hereby grants DISQO the right and license to use such Client Materials in connection with the Services. Client further represents and warrants that the Client Materials, and Client’s (and its advertisers’, as applicable) advertising, promotional and marketing activities in connection with the use of the Services (a) shall not be deceptive, misleading, obscene, defamatory, illegal, or unethical, (b) shall not infringe any third-party intellectual property, privacy or other rights, and (c) shall comply with all Applicable Laws.
Except as set forth herein, as between the Parties all tracking, consumer survey, survey responses, online and other behavioral data, and other data and information collected by DISQO from DISQO Panel Members through the performance of and in connection with the Services (“Data”) shall be exclusively owned by DISQO. The Parties further acknowledge and agree that DISQO is the exclusive owner of all rights, title and interest in and to all data or information collected by DISQO related to DISQO Panel Members, including but not limited to, those DISQO Panel Members who are end users of Client’s applications and sites.
Except for the Data contained therein, Client shall own the delivered Research Report as identified in Order Form and DISQO hereby grants Client a limited, nonsublicensable, revocable, perpetual, non-exclusive and non-transferable license to use the Data as included in aggregate form in the final Research Report and the DISQO Dashboard, if applicable, provided or made available to Client by DISQO under the Order Form. Such license and use are limited to and solely for Client’s own internal reports and analyses distributed by Client to the public and to its clients, provided that (i) Client acknowledges DISQO as the source and (ii) in connection with press releases, public filings or other general distribution to the public of Research Report and materials based upon the Research Report, Client submits the relevant language to DISQO for its prior written approval (not to be unreasonably withheld). Client will not use the Services, deliverables or other materials provided under the Agreement in litigation or administrative proceedings unless DISQO has given its prior written consent. Notwithstanding anything to the contrary herein, the above license shall automatically terminate to the extent that Client breaches of the license granted herein along with the use restrictions and the proprietary rights of DISQO with respect to the Data set forth in this Agreement.
Except for general business contact information of its personnel, Client shall not provide to DISQO any information that identifies or can reasonably identify a particular individual (“Personal Information”).
DISQO may provide Client certain, limited access to a proprietary DISQO online portal that contains certain tracking or other data that may be included in the Research Report (“DISQO Dashboard”) if specifically set forth on the Order Form. Client may be required to agree to additional terms to access the DISQO Dashboard, and agrees to comply with all terms applicable to the DISQO Dashboard. Any access to the DISQO Dashboard shall generally terminate upon termination of the relevant Order Form, provided that Client may have access to the DISQO Dashboard for a period of up to 30 days following termination or expiration of the Order Form (“Additional Access Period”) if specifically set forth in the Order Form. Any access to and use the DISQO Dashboard in the Additional Access Period shall be solely for the purpose of accessing and downloading the Data contained therein; Client shall continue to comply with and be subject to the terms of the Agreement with respect to its access and use of the DISQO Dashboard during this Additional Access Period. DISQO shall have no liability with respect to Client’s access and use of the DISQO Dashboard or the data contained therein, and disclaims all representations and warranties relating to the DISQO Dashboard, any information or data contained therein, and any conclusions that may be determined therefrom. Notwithstanding anything to the contrary, DISQO may grant, restrict, or terminate access to the DISQO Dashboard at any time, in its sole discretion, without notice. Client may only access and use the DISQO Dashboard and the data therein for its own internal purposes. Client is solely responsible for its use of the DISQO Dashboard, including by all users that access the DISQO Dashboard through Client’s account. Client will ensure that its use of the DISQO Dashboard complies with all Applicable Laws.
(a) The term “Confidential Information” means all information or material which is (a) marked “Confidential,” or “Proprietary” or other similar marking, (b) known by the Parties to be considered confidential, or (c) from all the relevant circumstances should reasonably be known to be confidential. By way of example and not limitation, Confidential Information may include information concerning a Party’s, or licensors’ technology, systems, source code, databases, software, models, financial or business plans or operations, research activities, marketing or sales plans, pitches, pricing, and security procedures. The terms of the Agreement and related discussions, negotiations and proposals shall be Confidential Information. Confidential Information shall not include information that: (i) is already known by the receiving Party at the time it is obtained by said Party, free from any obligation to keep such information confidential; (ii) is or becomes publicly known through no wrongful act of the receiving Party; (iii) is rightfully received by the receiving Party from a third party without restriction and without breach of the Agreement; or (iv) is independently developed by a Party without using or referring to any Confidential Information of the other Party.
(b) During the Term and for a period of three years thereafter, except in order to provide the Services or as otherwise permitted herein, each Party agrees (a) to use and disclose Confidential Information solely for the purpose of performing its obligations under the Agreement and (b) to protect the Confidential Information with at least the same degree of care it normally exercises to protect its own confidential or proprietary information of a similar nature, but in no event less than a reasonable standard of care. Notwithstanding anything stated to the contrary herein, each Party’s obligations of confidentiality with respect to the other Party’s Confidential Information that constitutes trade secrets under Applicable Laws shall survive termination or expiration of the Agreement and continue until the date such Confidential Information ceases to be a trade secret.
(c) As may be necessary to provide the Service a Party may disclose Confidential Information to its employees, consultants, affiliates and subcontractors, provided that such Party shall be liable for any disclosure by the foregoing individuals and entities that is not consistent with the terms of the Agreement.
(d) A Party required or ordered to disclose the other Party’s Confidential Information pursuant to Applicable Laws, shall, to the extent permitted by law, notify the other Party within a reasonable time after receipt of such an order to allow the disclosing Party a reasonable opportunity to obtain a protective order or other restriction; any Confidential Information required to be disclosed pursuant to this section shall otherwise remain confidential and subject to the protections and obligations of the Agreement
(e) Upon the written request of the disclosing Party or upon the termination of the Agreement, the receiving Party shall promptly return to the disclosing Party or destroy (and certify such destruction upon request) the disclosing Party’s Confidential Information, including any copies, extracts, descriptions and summaries thereof. Notwithstanding the foregoing, neither Party shall be obligated to purge data archived pursuant to its normal document retention practices or required to be retained by Applicable Laws; provided, however, that the obligations of confidentiality herein continue to be strictly observed with respect to such retained data.
Client hereby grants DISQO the right to use and display Client’s name and logos (“Client Marks”) in connection with the Services and DISQO’s internal and public-facing marketing and/or promotional materials. DISQO acknowledges that Client is the sole and exclusive owner of the Client Marks and the goodwill associated therewith.
(a) Either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if the other Party commits a material breach of the Agreement and does not cure such breach within thirty (30) days (10 days in the event of non-payment) after receipt of written notice, or if such breach is irremediable; provided that DISQO may terminate the Agreement without notice and opportunity to cure, if in DISQO’s opinion such termination is required to prevent any violation of law or is required by any court, governmental or regulatory authority.
(b) The termination of the Agreement shall not release Client from its obligations and liability to DISQO with respect to any fees incurred up to and including the date of termination (whether or not such fees have been invoiced) and DISQO is not required to refund any fees paid in advance. Any such amounts shall become immediately due and payable upon termination.
(c) On termination of the Agreement for any reason, all licenses (including, but not limited to, rights set forth in Section 5 of these Terms and Conditions (except as specifically set forth in Section 7 of these Terms and Conditions with respect to the Data license)) granted under this Agreement shall immediately terminate.
(d) Those provisions set forth in the Agreement that by their nature are intended to survive termination or expiration of this Agreement shall so survive.
(a) DISQO will: (1) defend any third party claim or action brought against Client to the extent based on the allegation that the Services, (excluding materials or data provided by Client or obligations of Client) including the Research Report as delivered to Client, without alteration or combination and properly used by Client in accordance with the terms of this Agreement infringe upon the U.S. copyright, trademark, or trade secret of any third party; and (2) pay any settlements that DISQO agrees in writing signed by an authorized officer of DISQO or final judgements awarded to the third party claimant by a court of competent jurisdiction with respect to such third party claim or action.
(b)Client agrees: (1) to defend any third party claim or action brought against DISQO to the extent based on or arising out of: (i) any Client Materials, or other material, data, instruction or information provided by Client, and/or (ii) Client’s breach of Section 3 of these Terms and Conditions; and (2) to pay any settlements that Client agrees in writing signed by an authorized officer of Client or final judgements awarded to the third party claimant by a court of competent jurisdiction with respect to such third party claim or action.
(c) Each indemnifying party’s obligations under this Section 12 are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of any third party claim or action, provided that failure to do so shall only relieve the indemnifying party to the extent that it is actually and materially prejudiced by any delay, (b) granting the indemnifying party the sole control of the defense or settlement of the third party claim or action and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the third party claim or action at the indemnifying party’s expense. The indemnified party may participate in the defense of the third party claim or action at its expense.
THE SERVICES AND DATA PROVIDED TO CLIENT ARE “AS-IS” AND WITH ALL FAULTS. DISQO MAKES NO, AND EXPRESSLY DISCLAIMS ALL, WARRANTIES OR REPRESENTATIONS OF ANY KIND TO ANY PERSON WITH RESPECT TO THE SERVICES OR OTHER DATA SUPPLIED THEREBY, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CLIENT ACKNOWLEDGES THAT DISQO SECURES INFORMATION FROM THE DISQO PANEL MEMBERS AND NEITHER DISQO NOR ANY OF THE DISQO PANEL MEMBERS WARRANT THAT THE INFORMATION WILL BE COMPLETE, ACCURATE OR ERROR FREE.
EXCEPT FOR CLIENT’S BREACH OF SECTION 3 OF THESE TERMS AND CONDITIONS, AND/OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 9 OF THESE TERMS AND CONDITIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR A PARTY’S OBLIGATION TO PAY AND DEFEND A THIRD PARTY CLAIM OR ACTION SET FORTH IN SECTION 12 OF THESE TERMS AND CONDITIONS, CLIENT’S BREACH OF SECTION 3 OF THESE TERMS AND CONDITIONS AND/OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 9 OF THESE TERMS AND CONDITIONS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO DISQO UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE THE LIABILITY AROSE UNDER SUCH ORDER FORM.
DISQO may temporarily suspend or discontinue the Services, with advance notice if practicable, at any time (a) if DISQO has reasonable cause to suspect that the Services are being used improperly or to commit fraud, (b) due to Applicable Laws, or (c) if DISQO reasonably believes such action is necessary to avoid a threat of or actual harm to DISQO, its clients, users, or any third party
Each Party shall be and act as an independent contractor and not as partner, joint venture or agent of the other. DISQO shall be entitled to use or engage subcontractors for the performance of DISQO’s obligations under the Agreement to the extent such obligations would have been performed by DISQO hereunder (“Subcontractor”); provided that DISQO shall remain at all times fully liable for the performance of each Subcontractors obligations hereunder.
The Agreement represents the entire understanding between DISQO and Client and supersedes all prior agreements, written or oral, relating to the subject matter of the Agreement. No failure or delay on the part of either Party in exercising any right, power or remedy under the Agreement shall operate as a waiver, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise or the exercise of any other right, power or remedy. Unless otherwise specified, any amendment, supplement or modification of or to any provision of the Agreement, any waiver of any provision of the Agreement and any consent to any departure by the Parties from the terms of the Agreement, shall be effective only if explicitly set forth in writing signed by both Parties; provided, however, that DISQO may update these Terms and Conditions without notice by posting such update on the website where these Terms and Conditions are displayed and such updated Terms and Conditions shall immediately apply to any Order Forms entered into by the Parties at the time of or after such update. Any such waiver by either Party of any obligation of the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
The Agreement may not be transferred or assigned, in whole or in part, by any Party without the prior written authorization of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing sentence, each Party may assign or transfer all or any of its rights or delegate or otherwise transfer all or any of its obligations or performance under the Agreement to a successor in interest in the event of a reorganization, merger, consolidation or sale of all or substantially all of such Party’s assets or stock; provided, however, that such successor assumes the assigning Party’s rights and obligations in writing.
The Agreement, and any legal claim, suit, action or proceeding arising out of the Agreement, shall be governed by the laws of the State of California without reference to its conflict of laws rules or principles. In event of a dispute arising under the Agreement, each Party will make reasonable, good-faith efforts to resolve such dispute informally. All legal disputes arising from the Agreement shall be resolved in the Federal and/or state courts located in the county of Los Angeles, California, and each party irrevocably submits to the exclusive jurisdiction of the Federal or state courts located in the county of Los Angeles, California, and waives any objection based on improper venue or forum non conveniens.
Any provision of the Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the minimum extent necessary, without invalidating the remaining provisions of the Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
Except for Client’s payment obligations, neither Party shall be in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to civil disturbances, riot, epidemic, pandemic, hostilities, strike or lockout, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power or equipment, cyber-attacks, or any other circumstances or causes beyond a Party’s reasonable control.
All notices permitted or required under the Agreement must be written and sent by any internationally recognized overnight delivery service to the address of Client and DISQO (including a copy to DISQO Legal), as applicable, as set forth in the Order Form. Notice of any change in a Party’s address will be given by the same method.
Unless explicitly granted herein, the Agreement does not confer any rights on any third parties by virtue of the Agreement, and accordingly any provisions of law conferring rights to third parties shall not apply to the Agreement. To the extent Client is acting as an agent of a third party, Client represents and warrants that is has the full authority to bind such third party to the terms herein
Where there is a direct conflict between these Terms and Conditions and an Order Form, the terms contained in the Order Form will apply to the extent they pertain to commercial terms, and all other terms in these Terms and Conditions shall apply. Any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by an authorized officer of DISQO. Any purchase order, website, purchasing portal, or other instrument issued by Client shall be for Client’s administrative purposes only and any terms and conditions contained therein shall be of no force or effect even if signed or otherwise accepted or acknowledged by DISQO.
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