J.D. Power

J.D. Power and Associates
Purchase Agreement

(rev. May 2013)

 BY CLICKING TO ACCEPT, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS ACCESS AND USE AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE, PLEASE CLICK TO REJECT THIS AGREEMENT AND DO NOT USE THESE SERVICES.

The terms “You” and “Client” refer to anyone who click accepts this AGREEMENT. The term “JDPA” refers to J.D. Power and Associates, a Delaware corporation, with its principal place of business at 2625 Townsgate Road, Westlake Village, CA 91361. The “Effective Date” of this AGREEMENT shall commence upon the date You click accept this AGREEMENT.

This AGREEMENT establishes the terms and conditions by which JDPA will provide services to You, including without limitation licenses to syndicated studies, special reports, and/or mystery shopping (“Services”). For purchases involving Special Reports and/or Syndicated Studies, the supplemental terms and conditions in Schedule A below shall be in addition to these terms and conditions. For purchases involving Mystery Shopping, the supplemental terms and conditions in Schedule B shall be in additional to these terms and conditions. Please refer to JDPA’s Privacy & Cookie Policy for information regarding how personal information, if any, you provide to JDPA will be used and maintained.

TERMS AND CONDITIONS

1. CONFIDENTIALITY

                (a)            Client’s “Confidential Information” shall mean any information which is disclosed in confidence to JDPA by Client or observed by JDPA.  JDPA’s “Confidential Information” shall mean all information, whether in written, verbal, graphic, electronic or any other form, which is disclosed in confidence to Client by JDPA or observed by Client including, without limitation, the questionnaire, business plans, business processes, forecasts, projections, analyses, Client and vendor information, software (including all documentation and codes), hardware and system designs, architectures and protocols, and specifications.  Each party shall treat the terms of this AGREEMENT as the other party’s Confidential Information.

                (b)           Each party shall protect the other party’s Confidential Information with at least the degree of care with which it protects its own Confidential Information, but in no event with less than reasonable care.

(c)            Each party (i) shall use the other’s Confidential Information only in connection with the performance of its obligations under this AGREEMENT, and (ii) will not disclose the other’s Confidential Information except to those employees, agents, and contractors who have first agreed to be bound by the terms and conditions of this Section 4 and who have a need to know such Confidential Information in connection with the performance of such party’s obligations under this AGREEMENT, and then only to the extent they need to know.

(d)           This Section 1 does not apply to any information that (A) the receiving party can demonstrate that it possessed prior to the date of this AGREEMENT without obligation of confidentiality, as demonstrated by the written records of that party, (B) the receiving party develops independently without use of any of the other party’s Confidential Information, (C) the receiving party rightfully receives from a third party free to make such disclosure without breach of any legal obligation, or (D) is or becomes publicly available without breach of this AGREEMENT. 

                (e)            Each party shall upon the request of the other party or the termination of this AGREEMENT immediately turn over to such other party, or at the request of the party that owns the Confidential Information destroy and certify in writing as having been destroyed, all Confidential Information of the other party.

2.  INJUNCTIVE RELIEF

Each party acknowledges that the other party cannot be adequately compensated in money damages for the consequences of a breach hereof, and agrees that the other party, in addition to its other remedies hereunder in the event of any breach hereof, shall be entitled to an order enjoining any further breach hereof.

3.  OTHER MATTERS

(a)                  Entire Agreement.  This AGREEMENT, including Schedule A and/or Schedule B, as applicable, constitutes the complete, final and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions of the parties.  The provisions and terms of any purchase order or other agreement issued by the Client in conjunction with this AGREEMENT shall be of no effect and shall not in any way extend or modify the terms and conditions set forth in this AGREEMENT.  If any provision of this AGREEMENT shall be held invalid in a court of law, the remaining provisions shall be construed as if the invalid provision were not included in this AGREEMENT.

(b)                 Compelled Disclosure.  Information, including without limitation Confidential Information, may be disclosed by Client solely to the extent  required by subpoena, court order or other operation of law (each a “Compelled Disclosure”), provided that Client has given notice to JDPA and has made a reasonable attempt in good faith to resist making such disclosure.  If disclosure is required notwithstanding Client’s efforts to resist such disclosure, Client shall limit the disclosure to the minimum necessary to comply with such Compelled Disclosure including, when possible, obtaining a protective order limiting the Information disclosed and cooperating with JDPA to limit such disclosure.

(c)                  Governing Law.  This AGREEMENT shall be governed by and interpreted in accordance with the laws of the State of California, excluding any choice-of-law rules that would require the application of the laws of any other jurisdiction.  Any dispute that arises under or relates to this AGREEMENT (whether in contract, tort or both) commenced by either party shall be resolved in state or federal court in Ventura County, California, and the parties expressly waive any right they may otherwise have to cause any such action or proceding to be brought or tried elsewhere.

(d)                 Modifications or Amendments.  No modification or rescission of this AGREEMENT shall be binding unless executed in writing by the party to be bound thereby. No waiver, alteration or amendment of any provision of this AGREEMENT or any JDPA price quoted for the Services shall be effective unless agreed in writing by an authorized representative of both parties.

(e)                  Force Majeure.  Any delay or failure of either party to perform its obligations shall be excused for the period of, and to the extent caused by, an event or occurrence beyond the reasonable control of such party.  A “force majeure” event may include, but is not limited to, earthquake, fire, storm or other natural disaster, act of God, civil disturbance, act of terrorism, or war.  The affected party shall give written notice of such delay or failure to perform to the other party within seven (7) days of the force majeure event.

(f)                  Compliance with Applicable Laws.  Client represents and warrants, and during the term of this AGREEMENT covenants, that it is in compliance with all applicable laws and regulations and existing contractual obligations, including without limitation that it has the right to share and disclose the information to JDPA (including any personally identifiable information) for the purposes of providing the Services hereunder.  Further, to the extent Client requires JDPA to share any of the information in connection with the Services with the agents of Client (including, without limitation dealers, franchisees, licensees or vendors), Client shall indemnify JDPA for any third party claims arising out of such sharing of information, except in the case of the gross negligence or intentional misconduct of JDPA.

(g)                  Survival. Notwithstanding any other terms hereof, the terms and conditions of this AGREEMENT which by their nature should apply or relate to periods after the termination or expiration of this AGREEMENT and the provisions under Schedule A and/or Schedule B, as applicable, hereof shall continue beyond the termination or expiration of this AGREEMENT.

 

SCHEDULE A—additional terms and conditions of AGREEMENT applicable to purchases of Special Reports and/or Syndicated Studies

LIQUIDATED DAMAGES

Client agrees to pay JDPA, as liquidated damages, $10,000 for each instance in which any portion of the studies, reports, software or other information provided to Client by JDPA is disclosed as part of any external advertising or other promotional campaign or communication by Client or any of their employees, officers, directors, affiliates, agents or contactors.  Such liquidated damages shall be in addition to all other remedies that may be available to JDPA for breach of this AGREEMENT.

A.  LICENSE, OWNERSHIP AND RESTRICTIONS ON USE

      Client agrees that JDPA is the exclusive owner of the studies, reports, data and other information provided by JDPA to Client (collectively "Information"), the desk-top software, if any, provided by JDPA that allows You to view and use the Information (the “Software”), any electronic platform, including those accessed through the worldwide web,  which enables Client access to the Information (the “Platform”), and any other media containing the Information or the Software or the Platform, the JDPA service marks, including the name J.D. Power and Associates, each of the J.D. Power and Associates Medallions, and all copyrights, trademark rights and other intellectual property rights with respect to each of the foregoing.  Client shall not directly or indirectly use or display J.D. Power and Associates' name or service marks without the prior written consent of JDPA.  Client is hereby granted a non-exclusive, non-transferable license to use the Information and the Software for a period of five (5) years from the date of the invoice; provided, however, that the said license for non-exclusive, non-transferable use and access to the Platform (and for any software, if accessed through the Platform) shall be in effect for only one (1) year from the date of account password activation for access to the Platform.  Client shall not modify, reverse engineer, decompile or disassemble any of the Software or Platform. Client may access the Software from a hard disk, over a network, or by any other method it chooses, as long as it otherwise complies with the restrictions and limitations of this AGREEMENT and as specified in the Statement of Fees.  Client may make a reasonable number of copies of the Software subject to the limitations on use specified in this AGREEMENT. Client shall not provide access to, display, circulate or otherwise disclose any of the Information or the Software or the Platform to any person except employees or contractors of Client who have agreed, for the benefit of JDPA, to comply with the provisions of this paragraph (“Authorized Users”).  Notwithstanding the foregoing, all support and maintenance by JDPA in connection with the Platform and Software shall be for a period of one year from the date of activation. Client shall not use any of the Information or Software except as expressly permitted by this AGREEMENT.  Client shall cease using the Information and Software and at the end of the five-year period, and, with respect to the Platform, after the one-year, period, as applicable, for which it is licensed and, upon the written request of JDPA, shall destroy or return to JDPA all copies of the Information and Software.  Client acknowledges and agrees that the Information is disclosed to Client in confidence, portions of which are protectable as a trade secret of JDPA.

 

B.   DISCLAIMER OF WARRANTY

      Although JDPA shall use all reasonable efforts to provide accurate and reliable Services under this AGREEMENT, neither JDPA nor any of its licensors of Information or Software or Platform included in the Services warrants the adequacy or accuracy thereof.  JDPA AND ITS LICENSORS PROVIDE THE SERVICES AS IS AND HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE SERVICES OR THE RESULTS TO BE OBTAINED FROM THE USE THEREOF, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.

 

C.   INFRINGEMENT; INDEMNITY

      JDPA shall indemnify Client with respect to all losses or damages incurred by Client, including reasonable attorney's fees, as a result of any claim against Client that the Services furnished by JDPA and used by Client as provided by this AGREEMENT infringe any copyright or other proprietary rights of a third party, provided that JDPA is given prompt written notice thereof and has sole control of the defense and settlement of such claim.  In the event of such claim, JDPA shall have the right to terminate this AGREEMENT with respect to the allegedly infringing Services by giving written notice to Client and by refunding to Client the prorata share of any prepaid charges relating to such infringing Services.  Client shall indemnify JDPA with respect to all losses or damages incurred by JDPA, including reasonable attorney's fees, as a result of any claim arising out of Client's use of the Services furnished by JDPA, provided that Client is given prompt written notice thereof and has sole control of the defense and settlement of such claim.

 

D.  LIMITATION OF LIABILITY

      JDPA shall have no liability to Client for any damages resulting from any interruptions, delays, inadequacies, errors or omissions relating to the Services or from the loss of Client data or otherwise.  IN NO EVENT SHALL JDPA HAVE ANY LIABILITY, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, FOR LOST PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF JDPA, EVEN IF JDPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FOREGOING, JDPA’ MAXIMUM LIABILITY TO CLIENT FOR ANY DAMAGES WITH RESPECT TO THE SERVICES OR UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE TOTAL FEES PAID BY CLIENT TO JDPA UNDER THE INVOICE FOR THE SERVICES.

 

E.   ASSIGNMENT

      Neither this AGREEMENT nor any of the Information may be assigned or otherwise transferred by Client, in whole or in part, without the prior written consent of JDPA.  JDPA may assign this AGREEMENT, in whole or in part, to any affiliate or to any successor by acquisition or merger of JDPA or the business operations to which this AGREEMENT relates.  The parties' rights and obligations under this AGREEMENT will bind and inure to the benefit of their permitted successors and assigns. 


SCHEDULE B—additional terms and conditions of AGREEMENT for purchases of Mystery Shopping

A.  TERMINATION

If a party is in breach of this AGREEMENT, the non-breaching party may terminate this AGREEMENT provided that it has given the other party written notice of the breach and at least thirty (30) days to cure such breach, and such breach was not cured during such period.  In the event of such termination, Client shall pay JDPA all amounts that are accrued but unpaid and the full value of the Services.  Sections 2 through 9 of this AGREEMENT shall survive termination of this AGREEMENT.

B.  OWNERSHIP AND RESTRICTIONS ON USE

                (i)            Client agrees that JDPA is the exclusive owner of the JDPA service marks, including the name J.D. Power and Associates, and each of the JDPA Medallions (collectively, the “Service Marks”).  Except as expressly provided in this AGREEMENT, Client may not directly or indirectly use or display the JDPA name or the other Service Marks without the prior written consent of JDPA.

                (ii)           The Study is a proprietary market research study prepared by JDPA solely for Client.  At the conclusion of the Study, the results of the Study, including any Report and the data contained therein, will be the property of Client.  However, any questionnaire(s) developed and/or used in connection with the Study (the “Questionnaire”) and the name J.D. Power and Associates and all other Service Marks are and shall remain the property of J.D. Power and Associates along with the desk-top software provided by JDPA that allows Client to view and use the Study, Report or other information (the “Software”), any electronic platform, including those accessed through the worldwide web, which enables Client access to the Study, Report, or other information (the “Platform”), and any other media containing the Study or Report or other information.  Client will not obtain any ownership interest in the underlying ideas, concepts, know-how and techniques used by JDPA to develop or generate the Study, the Questionnaire, the Report, the Platform or the Software.   Client is hereby granted a non-exclusive, non-transferable license to use and access the Platform (and any software, if accessed through the Platform) for one (1) year from the date of account password activation for access to the Platform and a non-exclusive, non-transferable, five (5) year license from the date of invoice to use and access the Software.  Client shall not modify, reverse engineer, decompile or disassemble any of the Software or Platform.  Client may access the Software from a hard disk, over a network, or by any other method it chooses, as long as it otherwise complies with the restrictions and limitations of this AGREEMENT as specified in the invoice.  Client may make a reasonable number of copies of the Software subject to the limitations on use specified in this AGREEMENT.  Client shall not provide access to, display, circulate or otherwise disclose any of the Software or the Platform to any person except employees or contractors of Client who have agreed, for the benefit of JDPA, to comply with the provisions of this sub-paragraph (b) (“Authorized Users”).  Notwithstanding the foregoing, all support and maintenance by JDPA in connection with the Platform shall be for a period of one year from the date of activation, and, with respect to the Software, one year from the date of invoice.

(iii)          Client may use the results of the Study, any Report, and the data contained therein for its internal purposes.

                (iv)          Client may verbally disclose the data or other information from the Study or a Report to third parties and may attribute the source of that information to JDPA provided that (i) the disclosure is entirely accurate, (ii) no other use of the Service Marks is made in connection therewith and (iii) no copies of the Report, in whole or in part, are disclosed unless such disclosure is approved pursuant to Section 3(e), below.

(v)           No portion of a Study, Report or other document bearing the name J.D. Power and Associates or the other Service Marks may be disclosed, and no press release or other written disclosure of the name J.D. Power and Associates or other Service Marks may be made, unless the entire text of each proposed disclosure is first submitted to JDPA for review, along with a statement of the parties to whom Client proposes to make the disclosure, and samples which are accurate and true representations of the final form of the proposed disclosure, and each such disclosure is “Approved As Is” on the written form that JDPA then uses for such purposes.  If any changes of any kind whatsoever are made to the content of the disclosure or the parties to whom Client proposes to make the disclosure, the proposed disclosure must again be submitted to JDPA for review and approval.

(vi)          Client grants to JDPA the right to use the data contained in the Services on an aggregate, non-identifiable bases for benchmarking, statistical analysis, and modeling purposes.  Under no circumstances will Client or any of the respondents be identified.

(vii)         To the extent Client’s use of any portion of the Services includes information, data, or other intellectual property of JDPA obtained or derived from JDPA’s syndicated studies, that use shall be governed by the standard JDPA Purchase of Services and License Agreement previously agreed to between JDPA and client.

C.  DISCLAIMER OF WARRANTY

Although JDPA shall use all reasonable efforts to provide accurate and reliable Services under this AGREEMENT, neither JDPA nor any of its licensors of information or software included in the Services warrants the adequacy or accuracy thereof.  JDPA AND ITS LICENSORS PROVIDE THE SERVICES AS IS AND HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE SERVICES OR THE RESULTS TO BE OBTAINED FROM THE USE THEREOF, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.

D.  INDEMNITY

JDPA shall indemnify Client with respect to all losses or damages incurred by Client, including reasonable attorney’s fees, as a result of any claim against Client that the Study, if used by Client as provided by this AGREEMENT, infringes any copyright of a third party, provided that JDPA is given prompt written notice thereof and has sole control of the defense and settlement of such claim.  In the event of such claim, JDPA shall have the right to terminate this AGREEMENT with respect to the allegedly infringing portion of the Study by giving written notice to Client and by refunding to Client the pro rata share of any prepaid charges relating to such infringing portion of the Study.  Client shall indemnify JDPA with respect to all losses or damages incurred by JDPA, including reasonable attorneys’ fees, as a result of any claim arising out of Client’s use of the Study along with any breach by Client of Section 9(g), provided that Client is given prompt written notice thereof and has sole control of the defense and settlement of such claim.  To the extent mystery shopping is included as a Service provided under this AGREEMENT, Client shall further indemnify JDPA with respect to all losses or damages incurred by JDPA, including reasonable attorney’s fees, as a result of any claims arising out of or from the mystery shopping portion of the Services.  The foregoing indemnification is subject to JDPA providing Client prompt written notice thereof and Client having the sole control of the defense and settlement of any such claim.

E.  LIMITATION OF LIABILITY

JDPA shall have no liability to Client for any damages resulting from any interruptions, delays, inadequacies, errors or omissions relating to the Services covered hereby.  IN NO EVENT SHALL JDPA HAVE ANY LIABILITY, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, FOR LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF JDPA, EVEN IF JDPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FOREGOING, JDPA’S MAXIMUM LIABILITY TO CLIENT FOR ANY DAMAGES WITH RESPECT TO THE SERVICES OR UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE TOTAL FEES PAID BY CLIENT TO JDPA UNDER THE INVOICE FOR THE SERVICES.

F. ASSIGNMENT

Neither this AGREEMENT nor the Report may be assigned or otherwise transferred by Client, in whole or in part, without the prior written consent of JDPA.  JDPA may assign this AGREEMENT, in whole or in part, to any affiliate of JDPA or to any successor by acquisition or merger of JDPA or the JDPA business operations to which this AGREEMENT relates.  The parties' rights and obligations under this AGREEMENT will bind and inure to the benefit of their permitted successors and assigns. 

G. ACKNOWLEDGEMENT OF THE JDPA “DO NOT CONTACT LIST”

Client hereby acknowledges and agrees that any client name or other personally identifiable information that is provided to JDPA by the Client, or any agents of the Client, will not be used by JDPA as a survey respondent (or otherwise) for this Study, Report, Services, or any other proprietary or syndicated study, if the said client name or other personal information also appears on the JDPA “Do Not Contact List”.  The JDPA “Do Not Contact List” is defined as that internal database of respondent names and/or other personal information created by JDPA of survey respondents who have notified JDPA that they do not wish to be contacted again for any reason.

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