This Data Collection Services Agreement (“Agreement”) outlines the terms and conditions between Effective Measure (refer to clause 13 for Effective Measure contracting entity) (“Effective Measure”) and you (“the Customer”). Effective Measure shall provide the Services to the Customer as outlined under these terms and conditions. BY CLICKING ON THE ‘I ACCEPT’ BUTTON BELOW OR BY SIGNING THIS AGREEMENT (COMMENCEMENT DATE), YOU ARE AGREEING TO BE BOUND BY ALL THE TERMS AND CONDITIONS LISTED BELOW (“Agreement”)
Customer hereby agrees to the following:
1.1 to place tags on any combination of web sites, ad campaigns, or mobile applications in accordance with the Effective Measure tagging specification requirements, as provided to Customer by Effective Measure, including the ongoing responsibility to add tags to new pages and content as they are created;
1.2 to allow Effective Measure to create or update its cookies, device specific persistent identifiers or browser specific persistent identifiers in response to the tagging call, with the understanding that the Effective Measure cookie shall only be allowed to collect anonymous traffic data;
1.4 that once the tagging data has been published as part of the Effective Measure Service, in the event that Customer ceases performance under the Agreement, that Effective Measure shall revert to publishing under the panel-based methodology, and will make a notation to that effect in the Effective Measure dashboards
2. Supplemental Data Collection
2.1 Customer acknowledges that Effective Measure, as part of this Agreement, shall have the ability to serve short surveys to Internet enabled devices on which the Effective Measure cookie resides. Effective Measure agrees to use these surveys to collect only non-personal information in an effort to further refine its market research related. Effective Measure further agrees to provide users visiting these sites with the ability to opt-out of these surveys.
3. Change of Services
3.1 Effective Measure reserves the right to revise and modify the Services, release subsequent versions thereof and alter features, specifications, capabilities, functions and other characteristics of the Services at any time without notice to the Customer. The Customer’s sole remedy in relation to any such revision or modification will be to terminate this Agreement in accordance with clause 7.2.
4. Traffic Manipulation
4.1 The practice of artificially inflating tag requests is strictly prohibited. Inflating shall include, but not be limited to, the machine generation of tag requests via robots, spiders, computer scripts, or human generated requests performed for the sole purpose of increasing tag request or persistent identifier web site visitation counts. This determination is made at the sole discretion of Effective Measure, and Effective Measure retains the right to revert to panel numbers or discount inflated traffic in the event Effective Measure determines manipulation has occurred.
5. Intellectual Property Ownership
5.1 Neither this Agreement nor its performance: (1) transfers from Effective Measure to Customer any Effective Measure Technology, and all right, title and interest in and to the Effective Measure Technology will remain solely with Effective Measure; (2) transfers from Customer to Effective Measure any Customer Technology, and all right, title, and interest in and to Customer Technology will remain solely with Customer.
5.2 For the term of this Agreement, Effective Measure grants Customer a limited license to use the Effective Measure Technology only for insertion in Pages in connection with the Services. Effective Measure does not grant any other rights to the Effective Measure Technology.
5.3 Customer must not directly or indirectly or through any agents copy, modify, disassemble, de-compile or reverse engineer the Services or any Effective Measure Technology.
5.4 Effective Measure shall retain all rights to use data collected through the Service, through any cookies that are placed pursuant to this service, and through any surveys issued pursuant to this Service.
6.1 Neither party will disclose the other party’s Confidential Information except as needed to perform its obligations under this Agreement or if required by law, regulation, or court order. Each party will limit access to the Confidential Information of the other party only to officers, employees, agents or subcontractors who need to have access. If a disclosure of Confidential Information is required by law, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information. Customer is responsible for safeguarding the confidentiality of the passwords and user names issued to Customer by Effective Measure and for any use of Customer’s account resulting from any third-party using a password or user name issued to Customer. Customer will promptly notify Effective Measure of any unauthorized use of Customer’s account or any other breach of security known to Customer.
7. Term and Termination
7.1 The term of this Agreement begins on the Commencement Date and continues until terminated as per clause 7.2
7.2 Either party may by notice to the other, terminate its provision of the Services by providing 30 days written notice.
7.3 Upon termination of this Agreement, Effective Measure will stop providing Services and Customer will remove all copies of Effective Measure Technology;
7.4 The provisions of clauses (Intellectual Property Ownership), (Confidentiality), (Warranties and Indemnities), (Disclaimers and Limitation of Liability), (Law and Venue) and (Miscellaneous) survive termination of this Agreement.
8. Warranties and Indemnities
8.1 Each party warrants that (i) it has the full power and authority to enter into this Agreement and to perform the obligations contained in this Agreement; and (ii) that its entry into, and performance under this Agreement, will not violate any law, statute or regulation or result in a breach of any material agreement or understanding to which it is bound.
8.2 Effective Measure warrants that the Services will be performed in a professional and workmanlike manner consistent with prevailing industry standards. Effective Measure makes no other warranties or representations.
8.3 Effective Measure shall defend, indemnify and hold harmless Customer against any loss, damage, costs, expenses and liabilities (including interest, fines and legal fees) based upon any claims made against customer that its use of the Services infringes the intellectual property rights of any third party.
9. Limitation of Liability
9.1 For any claims provided under this Agreement, Customer agrees that its sole and exclusive remedy against Effective Measure, its affiliates and licensors will be limited to replacement of the portion of the Report containing a material defect. Under no circumstance will either party, its affiliates or licensors be liable for any of the following:
(i) indirect, incidental, indirect, special, exemplary or consequential loss or damage, loss of profits or anticipated profits, loss of revenue, economic loss, loss of business opportunity, damage to goodwill, loss of data, deletion or corruption of electronically or digitally stored information or loss or irrespective of whether (i) the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise; (ii) the possibility of such loss or damage was foreseeable; or (iii) Effective Measure or any other person was previously notified of the possibility of the loss or damage.
9.2 Effective Measure is not liable for any loss or damage howsoever caused to any property or person of the Customer or any Third Party as a result of any defect in the Services.
9.3 Customer expressly agrees that this limited remedy is reasonable and applicable to it even if the system fails in its essential purpose to Customer.
9.4 The Customer indemnifies Effective Measure for any and all loss and damage (including legal fees) arising out of or in connection to (i) a breach or non-performance of this Agreement by the Customer or its Personnel; (ii) all and any claims whatsoever and howsoever arising made by any Third Party in connection with or arising out of the Customer’s use of the Services; and any failure by the Customer to obtain a consent necessary for Effective Measure to provide the Services.
10.1 Customer and Effective Measure each may refer generally to the existence of this Agreement and use the other party’s name in web sites and other promotional material, but will not reveal financial terms or other confidential information in this Agreement. The Customer must have Effective Measure’s consent by notice when they reference Effective Measure in any way in any press releases.
11. Dispute Resolution
11.1 Upon the written request of a party, any dispute that arises between the parties shall be referred to a joint committee consisting of the designated account managers. The account managers shall discuss the problem and attempt to resolve the dispute without the necessity of any formal proceedings. Should the account managers be unable to resolve the dispute, then the dispute shall be referred to the respective General Managers (GM’s) of the Parties, or their representatives within 5 (five) Business Days after the account managers cannot resolve the dispute.
11.2 If the GM’s cannot resolve the dispute within 30 days a then either party may request the Institute of Arbitrators & Mediators Australia (“IAMA”) to nominate a suitable person to act. In the dispute. The Arbitrators decision shall be final and binding on the Parties, and may be made an order of court.
11.3 Despite the above, any Party may approach a court for urgent or interim relief.
12.1 Any notice or other communication to or by a party under this Agreement:
a) may be given by personal service, post, facsimile or sent electronically by email
b) must be in writing, legible, signed by the relevant party’s authorised representative and in English addressed (depending on the manner in which it is given) to the relevant contact and address, facsimile number or email to the address in accordance with this clause; and
c) is deemed to be given by the sender and received by the addressee (i) if delivered in person, when delivered to the addressee; (ii) if posted, 6 Business Days after the date of posting to the addressee whether delivered or not; (iii) if sent by facsimile transmission, on the date and time shown on the transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety and in legible form to the facsimile number of the addressee notified for the purposes of this clause; or (iv) if sent electronically by email and confirmation is received from the relevant internet service provider that the transmission was successfully delivered, on the day of transmission, but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee’s time), it is deemed to have been received at 9.00 am on the next Business Day.
13. Contracting Party, Governing Law and Jurisdiction
13.1 Who the Customer is contracting with under this Agreement, who the Customer should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement and which courts can adjudicate any such lawsuit, depend on where the Customer is domiciled.
13.2 Each party agrees to the applicable governing law below without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts below.
14. Assignment and Transfer
14.1 Either party may assign this Agreement in its entirety (including Order Forms), without consent of the other party to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
14.2 The Customer authorises Effective Measure to provide the Services through one or more subcontractors or agents.
15.1 This Agreement may only be amended in writing between the parties.
16.1 These terms constitute the entire agreement between Effective Measure and the Customer in relation to the Data Collection.
16.2 If any provision of these terms is found to be invalid or unenforceable by a court of law it may be severed and will not affect the remainder of the agreement, which will continue in full force and effect.
16.3 This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Agreement.
16.4 The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
16.5 Each party is an independent contractor and will not have any authority to bind or commit the other.
16.6 Nothing in this Agreement will be deemed or construed to create a joint venture, partnership or agency relationship between the parties for any purpose.