SERVICE AGREEMENT - MASTER TERMS AND CONDITIONS

1. Agreement. Reference is made to the accompanying Order Form signed by the client named therein ("Client") and either The NPD Group, Inc. or NPD Intelect, LLC (as applicable, "NPD") relating to services provided by NPD. These Master Terms and Conditions will govern the provision of such services, will be deemed incorporated by reference in the Order Form and any future order forms submitted by Client (each, an "Order Form"), and each Order Form, together with these Master Terms and Conditions, will constitute a separate agreement (a "Service Agreement").  Each Service Agreement is made only with Client and, except as expressly stated otherwise, does not vest any rights in any parent, subsidiary or other affiliate of Client, whether then existing or acquired or established in the future.  To the extent there is any conflict between an Order Form and these Master Terms and Conditions, the Order Form will prevail.
    

2. Provision of Services.  NPD will provide Client with the specific services set forth in the relevant Order Form (the "Purchased Services").  The Purchased Services include the provision to Client of data, reports and analyses derived from information collected from consumers, manufacturers, retailers or others ("NPD Data") as well as, to the extent stated in an Order Form, related online access and software tools ("Tools").  All Purchased Services are provided subject to NPD’s right to rename, update or modify same from time to time as it may determine in the ordinary course of its business.
    

3. Use of NPD Data; Tools.  NPD grants to Client a perpetual, non-exclusive, nontransferable and non-sublicensable license to use NPD Data internally, for its own benefit, and as further permitted in this paragraph. Client may reproduce limited excerpts of NPD Data ("Excerpted Data") in Client’s reports and analyses and disclose same to third parties solely, but only to the extent reasonably necessary, in support of Client’s efforts to market its products and services; provided, however, that the scope of such disclosure may not, in NPD’s reasonable opinion, supplant or limit the ability of NPD to market or sell separately its data and services.  All Excerpted Data must comply with the Data Disclosure Requirements attached hereto as Exhibit A.  In no event may NPD Data be (a) voluntarily disclosed in any legal, arbitration, regulatory or governmental proceeding or filing, or (b) publicly disseminated, for example in press releases, in or to the media, on the Internet, in advertisements or on product packaging, without the prior written consent or authorization of NPD.  Under no circumstances may Client sell NPD Data, or disclose or use NPD Data in competition with NPD or with a competitor of NPD.  Any use or disclosure of NPD Data other than as specified in this paragraph is prohibited without NPD's prior written consent.  Client will not use any NPD Data in violation of any law or regulatory requirement and will not remove, obliterate or otherwise interfere with, any proprietary, confidentiality, copyright or other legend of NPD.  A similar license to that set forth in the first sentence above, but limited to the term of the relevant Service Agreement, is granted with respect to any Tools provided to Client thereunder.  Client agrees that it will (a) not copy, modify, disassemble, decompile or otherwise reverse engineer Tools, (b) ensure that its personnel do not share NPD-provided passwords (the "Passwords") with any other person (including any other Client personnel), and (c) promptly notify NPD if any Password-authorized Client personnel are no longer entitled to use NPD Data.  The license granted to Client in this Section 3 is subject to any other restrictions as may be stated in an Order Form.
    

4. Fees and Payments.  Client will pay NPD for the Purchased Services in accordance with the fees and any invoicing schedule stated in the relevant Order Form.  If no invoicing schedule is stated, billing in full will occur upon execution of the Service Agreement.  Stated fees will apply for the duration of the Initial Purchase Period set forth in the Order Form ("IPP"), and NPD will provide ninety (90) days advance written notice of any fee changes effective thereafter.  Fees are due and payable by Client within thirty (30) days after receipt of invoice.  Interest will accrue on late payments from the invoice date until paid, at the lesser of 1.50% per month or the maximum allowed by law.  Nonpayment of an invoice by its due date may, at NPD’s discretion, result in suspension of the Purchased Services or support by NPD.  Client will pay NPD’s reasonable legal fees and collection costs and expenses in connection with any unpaid amounts.  Fees for Purchased Services are exclusive of and Client agrees to pay, or reimburse NPD for, any applicable sales, use and similar taxes payable or required at any time to be collected by NPD.
    

5. Term of Service; Termination.  A Service Agreement remains in effect for the term specified therein, subject to NPD’s right to terminate a particular Purchased Service upon sixty (60) days’ written notice if such Service is being generally discontinued, in which case NPD will credit or refund any allocable prepaid fees on a pro rata basis.  Either party may terminate a Service Agreement upon notice to the other party if the other party commits a material breach and fails to cure such breach within thirty (30) days following receipt of notice thereof.  NPD may terminate a Service Agreement immediately upon notice to Client if Client breaches Section 3 or 7 of these Terms and Conditions with respect to any Service Agreement.  During each one-year term following the IPP, in the case where a Service Agreement has automatically renewed from the prior term, either party may provide 180 days’ written notice to terminate a Service Agreement in full, for convenience (the then-current term to continue through the data period during which the notice takes effect). Upon termination of a Service Agreement, Client will uninstall any Tools provided to it and all access to NPD services and online resources will terminate, and Sections 3 and 6 through 12, as well as any outstanding invoices or unbilled amounts for services rendered under such Service Agreement, will survive such termination.
    

6. Ownership Retained.  All Purchased Services are copyrighted, and may be reproduced only as may expressly be stated in a Service Agreement.  Purchased Services are licensed, not sold.  NPD owns and retains all rights, title and interest in and to Purchased Services, including, without limitation, all associated intellectual property and other proprietary rights, and all rights in Purchased Services not expressly granted to Client in a Service Agreement are reserved by NPD.
    

7. Confidential Information.  Client acknowledges that NPD expends substantial time, effort and money to develop, enhance and maintain the Purchased Services, and that all services of NPD, whether acquired directly or indirectly by Client, constitute the confidential and proprietary information of NPD and its valuable intellectual property (the "Confidential Information").  Confidential Information will also include the terms of all Service Agreements as well as any information regarding Client’s use of the Purchased Services.  Each party receiving Confidential Information ("Recipient") will maintain such information as strictly confidential, and will not disclose such Confidential Information to any third party, or use such Confidential Information for any purpose not expressly permitted under a Service Agreement.  The confidentiality obligations set forth in this paragraph will not apply to information that the Recipient can document is generally and lawfully available to the public or was already lawfully in the Recipient’s possession at the time of receipt of the information from the disclosing party ("Disclosing Party").  The Disclosing Party will have the right to equitable relief, without the obligation to post bond, in the event of any breach by the Recipient of this paragraph.  NPD may include Client’s name and logo only in listings of NPD clients.
    

8. Representations; Limitation of Liability.  NPD represents and warrants that (a) NPD Data will be collected in accordance with generally accepted standards in the research industry and (b) the Purchased Services, in the form provided by NPD, will not infringe the intellectual property rights of any third party. EXCEPT AS STATED IN THE FOREGOING SENTENCE, THE PURCHASED SERVICES ARE PROVIDED "AS IS" AND SUBJECT TO NPD’S ABILITY TO COLLECT THE RELEVANT SOURCE INFORMATION, AND NEITHER PARTY MAKES, AND EACH PARTY HEREBY DISCLAIMS AS TO THE OTHER PARTY AND THEIR RESPECTIVE AFFILIATES, PARTNERS AND SUPPLIERS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS OR ADEQUACY OF INFORMATION. NPD DOES NOT GUARANTEE THAT ONLINE ACCESS TO NPD DATA OR PURCHASED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. In no event will (i) either party or any of their respective affiliates, partners or suppliers be liable, whether in contract, tort, strict liability or under any other theory of liability, for any indirect, special, punitive, exemplary, incidental or consequential damages including, without limitation, lost business or lost profits, whether foreseeable or not, even if the other party has been advised of the possibility of such damages, or (ii) either party’s liability or the liability of their respective affiliates, partners or suppliers exceed in the aggregate the fees paid by Client for the specific NPD Data at issue during the six (6) month period immediately preceding the date on which the cause of action accrued.  The foregoing sentence will not apply with respect to any breach by Client of Section 3, or by Client or NPD of Section 7, or with respect to any indemnification claim by NPD pursuant to the Indemnity paragraph below.  No action arising out of a Service Agreement (other than an action for any fees or expenses due from Client) may be brought more than one year after the date on which the cause of action accrued.
    

9. Indemnity.  Each party (an "Indemnifying Party") will indemnify, defend and hold the other party and such other party’s officers, directors, employees, agents, affiliates, partners and suppliers (each an "Indemnified Party") harmless from and against all third party claims, liabilities, damages, debts, losses, settlements, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of (a) where Client is the Indemnifying Party, any breach by Client of Section 3, or any disclosure by Client of NPD Data, whether voluntary or not, in any litigation, arbitration, or governmental proceeding which requires production of documents or written or oral testimony of an NPD Indemnified Party, and (b) where NPD is the Indemnifying Party, any claim that the Purchased Services, in the form provided by NPD, infringe the intellectual property rights of any third party.
    

10. Acquisition of NPD Client.  Notwithstanding any other provision of this Agreement, if Client acquires or merges with another NPD client (the "Acquired Client") receiving one or more similar services to those licensed to Client under a Service Agreement, then upon the expiration of, or other termination thereof permitted under, the Acquired Client’s agreement with NPD for such services, fees at the rate of 75% of the aggregate annual fees payable for the relevant similar services, during the last year of the Acquired Client’s agreement, will be added to the fees payable by Client under such Service Agreement, and the Acquired Client will thereupon be entitled to benefit from the license grant to Client under such Service Agreement for such similar services.
     

11. Solicitation of Certain NPD Employees.  With respect to any NPD employee who (a) is assigned by NPD to dedicate his or her time exclusively on Client’s business with NPD or (b) works on a regular basis (at least part time) at any offices of Client, Client agrees that it will not, during the term of this Agreement and for one year thereafter (the "Restricted Period"), without first obtaining NPD’s prior written consent, directly or indirectly solicit, hire or otherwise engage the services of, as an employee, consultant or otherwise, any such NPD employee who during the Restricted Period is or was employed by NPD.
     

12. Miscellaneous.  (a) Neither party will assign or transfer, by operation of law or otherwise, any rights or obligations under a Service Agreement without the prior written consent of the other party, except in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets not involving a competitor (or affiliate thereof) of the non-assigning party.  (b) Each Service Agreement is for the benefit of the parties only; except as expressly stated, none of the provisions thereof are for the benefit of, or enforceable by, any third party.  (c) The failure of either party to partially or fully exercise any right or the waiver by either party of any breach will not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of a Service Agreement.  (d) To the maximum extent permitted by applicable law, if any provision of a Service Agreement is held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of such agreement will not be affected and those provisions will remain in full force and effect.  (e) Neither party will be deemed in default of any provision of a Service Agreement (excluding payment obligations) to the extent that its performance is delayed or prevented by any event reasonably beyond its control, provided that such party provides prompt notice thereof and uses reasonable efforts to mitigate the delay or failure to perform.  (f) All notices and other communications under a Service Agreement will be effective when provided in writing by a party to the other party at the address appearing in the Order Form, or such other address specified in writing to the notifying party after the date thereof, and will be deemed effective upon personal delivery, or upon receipt if delivered via a major commercial courier service or the U.S. Post Office as certified or registered mail, return receipt requested, or by confirmed facsimile transmission or acknowledged receipt of electronic mail.  (g) The parties are independent contractors for purposes of any Service Agreement and are not partners or joint venturers, and neither party has any right or authority to bind the other in any way.  (h) Each Service Agreement and any attachments, exhibits and schedules thereto, (i) contains the sole and entire agreement between the parties with respect to its subject matter, and any modifications must be in writing, signed by both parties and (ii) supersedes all prior discussions and agreements between the parties with respect to the subject matter thereof, with any additional or different terms on current or future Client purchasing documents expressly objected to and rejected.  (i) Any ambiguity in a Service Agreement will not necessarily be construed against the drafter.  (j) Each Service Agreement and any amendments to it will be governed by and construed in accordance with the laws of the state of New York, without regard to the choice of law rules thereof or to the United Nations Convention on Contracts for the International Sale of Goods.