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CAREFULLY READ THE FOLLOWING AGREEMENT. THIS IS A LEGAL AGREEMENT AMONG YOU, NIELSEN COMPANY ("Nielsen") AND NETRATINGS, INC. (THE "COMPANY"). THIS AGREEMENT, ALONG WITH THE HOMESCAN ONLINE PRIVACY POLICY (COLLECTIVELY, THIS "AGREEMENT"), GOVERNS YOUR MEMBERSHIP IN THE HOMESCAN ONLINE PANEL (THE "PANEL"). BY CLICKING "YES" OR "ACCEPT" WHERE INDICATED, YOU THEREBY SIGNIFY YOUR AGREEMENT TO JOIN THE PANEL AND THAT YOU MEET AND AGREE TO ALL THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
Background; Membership. Nielsen is creating a panel of Internet users to assess the role of the Internet and the World Wide Web in the home. By understanding how people use the Web today, Internet providers and other businesses can make the Web a more useful and interesting experience for all users. As a Homescan Online panel member, your input will help shape these important changes just as the Homescan Consumer Panel has helped shape the Consumer Packaged Goods industry. The Company's proprietary panel software application (the "Software"), which will be installed on your computer once you have consented to join the Panel, allows us to collect information about your and your household's computer and Internet usage and activity as described in this Agreement.
Eligibility. In order to be eligible to join the Panel, you must meet all of the following requirements:
- Be of statutory age and capable of entering into a binding contract. You expressly declare that you are the owner of any computer onto which you authorize the downloading of the Software, or that you have absolute control thereof.
- You are the parent or guardian of any minor with access to the computer on which the Software is being installed.
- You have informed those individuals with access to the computer on which the Software is being installed that you have agreed to install the Software, and these individuals have given you their explicit consent to join the Panel and to be subject to this Agreement.
License Grant. Subject to all of the terms and conditions hereof, the Company hereby grants to you a limited, nonexclusive, nontransferable, nonsublicensable license (i) to install, or have installed by the Company, the Company's Software on the hard disk drive of the Computer and (ii) to use the Software, in each case, in object code form only. All other rights with respect to the Software, its use and any accompanying documentation are hereby reserved to the Company.
Restrictions. You agree that you will not modify the Software or disassemble, decompile, reverse engineer, or otherwise attempt to derive source code from the Software. The Software shall be deemed to be "commercial computer software" pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and any accompanying documentation to or by the U.S. government shall be restricted in accordance with such DFAR and FAR Sections and governed solely by the terms of this Agreement. Contractor/Manufacturer is
NetRatings, Inc., 890 Hillview Ct., Suite 300, Milpitas, CA 95035.
Copyright. The Software is protected by United States copyright laws, international treaty provisions, and other laws. You may not use, copy, display, modify or distribute the Software or any accompanying documentation except in strict accordance with this Agreement.
Software Updates. You understand and agree that the Company may, from time to time, automatically update the Software in order to modify and/or supplement the type of data it tracks and to fix errors and you agree that the Company may do so without providing notice to you.
Termination. Nielsen or the Company may terminate your membership in the Panel at any time without notice and without liability to you or any third party. This Agreement and all rights and licenses granted to you herein shall immediately terminate upon any breach by you of any term or condition of this Agreement. You shall immediately, irrevocably destroy all copies of the Software and accompanying documentation in your possession upon any termination of this Agreement.
Indemnity. You agree to defend, indemnify and hold the Nielsen and the Company, together with their respective employees, officers, directors, shareholders, affiliates, partners and successors and assigns (collectively, "Representatives"), harmless from and against any and all claims, losses, damages, liabilities and costs (including without limitation reasonable attorney fees), arising out of or relating your breach of this Agreement or your membership in the Panel.
Limitation Of Liability And Warranties. YOU ASSUME THE ENTIRE COST OF ANY COST, DAMAGE, LOSS, LIABILITY OR EXPENSE RESULTING FROM YOUR USE OR EXPLOITATION OF THE SOFTWARE. THE SOFTWARE IS SUPPLIED TO YOU "AS IS" AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF Nielsen, THE COMPANY AND THEIR RESPECTIVE REPRESENTATIVES HEREBY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. EACH OF Nielsen, THE COMPANY AND THEIR RESPECTIVE REPRESENTATIVES MAKE NO WARRANTY THAT THE SOFTWARE WILL BE ERROR- OR BUG-FREE OR THAT ITS USE WILL BE UNINTERRUPTED OR THAT YOU WILL ACHIEVE ANY PARTICULAR OR DESIRED RESULT BY USING IT.
Some jurisdictions do not allow limitations on implied warranties, so the above limitation or portions thereof may not apply to you.
No Liability For Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL Nielsen, THE COMPANY OR THEIR RESPECTIVE REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, THIRD PARTY CLAIMS, OR OTHER LOSS) ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, YOUR USE THEREOF, THE DATA THEREBY COLLECTED, OR THIS AGREEMENT, WHETHER BASED UPON BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND PRODUCT LIABILITY) OR OTHERWISE, EVEN IF Nielsen, THE COMPANY OR THEIR RESPECTIVE REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL Nielsen, THE COMPANY AND THEIR RESPECTIVE REPRESENTATIVES' TOTAL LIABILITY TO YOU OR ANY OTHER PANEL MEMBER FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION EXCEED $100.
Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation or a portion thereof may not apply to you.
Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. ALL PARTIES TO AND DISPUTES ARISING OUT OF THIS AGREEMENT SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK.
Assignment. You shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without the prior written approval of the Company. The Company may assign this Agreement, and its rights and obligations hereunder, to any third party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
Severability. If any provision contained herein is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. In any event, the remaining provisions shall be enforced.
Costs of Litigation. If any action regarding the subject matter hereof is brought by a party to this Agreement against another party, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation.
Entire Agreement. This Agreement is the entire agreement between you, Nielsen and the Company with regard to the subject matter hereof and supersedes any and all prior communications with respect thereto.
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