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  1. Terms of Service. These Terms of Service ( “TOS”) govern your use of the Retail Essentials system and website (“www.retail.rentrak.com”) and the data, information and reports available at or obtained from the Retail Essentials Site (collectively, the “Retail Essentials Data”), and by using the Retail Essentials Site, you hereby agree to these TOS for the benefit of Rentrak Corporation. If you have entered into a service agreement or other agreement with Rentrak Corporation with respect to Retail Essentials ( “Service Agreement”), that agreement also governs your use of the Retail Essentials Site and the Retail Essentials Data. You and your company using the Retail Essentials Site and the Retail Essentials Data are referred to in these TOS as the “User.”
  2. Use of Site and Data. Rentrak Corporation hereby grants User, on the terms of these TOS and the Service Agreement (if applicable), the non-exclusive right to access the Retail Essentials Site and view and use the Retail Essentials Data solely for User's internal business purposes. User's use of the Retail Essentials Site and the Retail Essentials Data is subject to the following restrictions:

    (a) The Retail Essentials Data and the Retail Essentials Site shall not be used for or in connection with research where the primary use of such data or site is for making investment decisions, nor shall the Retail Essentials Data or the Retail Essentials Site be used for reporting or calculating royalties or other fees based on sales or usage.

    (b) User shall not have the right the right to display, publish, distribute, disseminate or otherwise make public any Retail Essentials Data without Rentrak's prior written consent. User acknowledges that all Retail Essentials Data is "Confidential Information" subject to Section 6 below.

    (c) User shall not download an unusually high amount of Retail Essentials Data, including screen shots, data points or meta-data. Rentrak shall have the sole discretion in determining whether any User or Users have violated this restriction, taking into account the period during which User's company has subscribed to Retail Essentials.
  3. Modification of Retail Essentials. Rentrak Corporation reserves the right at any time to revise and modify the Retail Essentials Site and the Retail Essentials system and to alter their features, specifications, capabilities and/or functions, without notice to User except as otherwise provided in the Service Agreement (if applicable).
  4. Termination of User Rights. Rentrak Corporation shall have the right to terminate User's rights under these TOS, including the right to access the Retail Essentials Site and/or user the Retail Essentials Data, upon ten (10) days prior written notice for any reason, or immediately if User breaches any of its obligations under these TOS, subject to the provisions of User's Service Agreement, if applicable. Within 90 days of expiration or termination of User's rights under these TOS, User shall certify in writing to Rentrak Corporation that it has returned or destroyed (at Rentrak Corporation's election) all electronic or hard copies of the Retail Essentials Data which are then in User's possession, including but not limited to copies residing on leased servers, at hosting services, on disaster recovery servers, in backups or in archives, except with respect to disaster recovery servers, backups and archives where the return, removal or destruction of such data would not be commercially practical.
  5. Ownership of Retail Essentials. Rentrak Corporation is the exclusive owner of the Retail Essentials Site, the Retail Essentials system and concept, the Retail Essentials Data as represented by the Retail Essentials system, and all copyright, trademark, patent and other intellectual property rights therein, and nothing in these TOS shall be construed as granting to User any intellectual property rights therein. All rights not granted to User are expressly reserved to Rentrak Corporation. User shall not have the right to sell, sublicense, transfer, or grant any rights in Retail Essentials or any Retail Essentials Data to any third party.
  6. Confidentiality. User agrees that it will use Rentrak Corporation Confidential Information (as defined below) only for its internal business purposes only to the extent necessary for such purposes and will restrict disclosure of the Rentrak Corporation Confidential Information to its employees, consultants or independent contractors with a need to know and will not disclose any Rentrak Corporation Confidential Information to any third party without Rentrak Corporation's prior written approval, except as specifically permitted in the Service Agreement (if applicable). Notwithstanding the foregoing, it will not be a breach of these TOS for User to disclose Rentrak Corporation Confidential Information if required to do so under law or in a judicial or other governmental investigation or proceeding, provided Rentrak Corporation has been given prior notice and User has sought all available safeguards against widespread dissemination prior to such disclosure. As used in these TOS, the term "Rentrak Corporation Confidential Information" refers to: (i) any and all Retail Essentials Data and any other nonpublic information accessible by logging on to the Retail Essentials Site; (ii) any Retail Essentials user manuals provided to User; and (iii) Rentrak Corporation's trade secrets, business plans, strategies, methods and/or practices that are not generally known to the public. Notwithstanding the foregoing, Rentrak Corporation Confidential Information specifically excludes: (A) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of User, its employees or agents; (B) information that is known to User without restriction, prior to receipt from Rentrak Corporation, from User's own independent sources as evidenced by User's written records, and which was not acquired, directly or indirectly, from Rentrak Corporation; (C) information that User receives from any third party reasonably known by User to have a legal right to transmit such information, and not under any obligation to keep such information confidential; and (D) information independently developed by User's employees or agents provided that User can show that those same employees or agents had no access to the Rentrak Corporation Confidential Information received hereunder.
  7. Passwords. User accesses the Retail Essentials Site with a unique login and password, which User agrees to keep confidential. User agrees to notify Rentrak Corporation promptly if User has any reason to believe that any third party has unauthorized access to its login or password. User shall be responsible for any and all use of the Retail Essentials Site occurring under its login and password.
  8. No Warranties. RETAIL ESSENTIALS, THE RETAIL ESSENTIALS SITE AND THE SERVICES AND RETAIL ESSENTIALS DATA AVAILABLE THERE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. RENTRAK CORPORATION DOES NOT WARRANT THAT THE RETAIL ESSENTIALS SITE OR USER'S ACCESS TO THE RETAIL ESSENTIALS SITE WILL BE ERROR-FREE OR UNINTERRUPTED, AND HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF.
  9. Limitation of Liability. IN NO EVENT SHALL RENTRAK CORPORATION, ITS OFFICERS, DIRECTORS, EMPLOYEES OR SHAREHOLDERS BE LIABLE UNDER ANY THEORY, INCLUDING BUT NOT LIMITED TO CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR PRODUCT LIABILITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS), ARISING FROM OR RELATING TO THE USE OF RETAIL ESSENTIALS, THE RETAIL ESSENTIALS SITE, OR ANY RETAIL ESSENTIALS DATA, INCLUDING DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE RETAIL ESSENTIALS SITE OR THE RETAIL ESSENTIALS DATA OR FROM ERRORS, OMISSIONS OR OTHER INACURRACIES IN THE RETAIL ESSENTIALS DATA, EVEN IF USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT PREJUDICE TO THE FOREGOING LIMITATION, THE AGGREGATE LIABILITY OF RENTRAK CORPORATION TO USER UNDER ANY AND ALL THEORIES, INCLUDING BUT NOT LIMITED TO CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR PRODUCT LIABILITY, SHALL IN NO EVENT EXCEED THE AMOUNT PAID TO RENTRAK CORPORATION BY USER FOR RETAIL ESSENTIALS DURING THE IMMEDIATELY PRECEDING SIX-MONTH PERIOD.
  10.  Indemnification. User agrees to indemnify, defend and hold harmless Rentrak Corporation, its affiliates, licensors, and their respective officers, directors, employees and agents from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, arising out of the use of the Retail Essentials Site or the Retail Essentials Data, including without limitation the uses described in items (a) and (b) of Section 2 and further including any representations to advertisers or similar parties concerning the usage of content, by User or any other person using User's password.
  11.  Amendment of TOS. Rentrak Corporation shall have right to update, amend or restate these TOS without the consent of User and without prior notice to User; provided, however, Rentrak Corporation will use reasonable efforts to give User 10 days' prior notice of any such updates, amendments or restatements.
  12.  Miscellaneous. These TOS will be governed by the laws of the State of Oregon. Any action or proceeding arising from or relating to these TOS shall be brought in a federal court in the State of Oregon or in state court in Multnomah County, Oregon, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought to enforce these TOS, the prevailing party will be entitled to receive reasonable attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive, in any bankruptcy case, arbitration proceeding or court case. Any waiver or failure to enforce any provision of these TOS on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of these TOS is determined to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
  13.  Conflicts. In the event of any conflicts between the terms of these TOS and the Service Agreement (if applicable), the terms of the Service Agreement shall control.
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