Comparative Beta Terms of Service

  1. Definitions. The following terms, when used in this Comparative Beta Terms of Service (“Agreement”) will have the following meanings, and any terms capitalized but not defined will have the meaning set forth in the applicable Order (defined below):
    1. Comparative Materials” means the Services, pursuant to the Order, Documentation, and any other materials or information (including Comparative’s Confidential Information) delivered or made available by Comparative under this Agreement. 
    2.  “Confidential Information” means any information of a confidential or non-public nature disclosed by one Party as a disclosing Party to the other Party as a receiving Party that is either designated as confidential or proprietary at the time of disclosure or should be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.
    3. Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Comparative to Customer describing the intended operation of the Services.
    4.  “Order” means the Order Form by which this Comparative Beta Terms of Service is incorporated.
    5. Services” means the Comparative platform as made available on a software-as-a-service basis to Customer as identified on the Order, including all fixes, updates and upgrades to the same. 
  2. License 
    1. License to the Services. Subject to the terms and conditions of this Agreement, Comparative hereby grants to Customer, during the Order Term, a non-exclusive, non-sublicensable, non-transferable right and license, as applicable, to access and use the Services pursuant to the Order, and in either case, solely for Customer’s internal business purposes in connection with Customer’s evaluation and in accordance with the Documentation.
    2. Documentation. Subject to the terms and conditions of this Agreement, Comparative hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicensable license during the Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the Services. Customer will include on any copies it makes of the Services and Documentation the copyright notices or proprietary legends contained within the same.
    3. Customer Limitations. The rights granted herein are subject to the following restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, translate, modify, create derivative works of the Services or Documentation; (b) create, derive, access, inspect or permit or assist any third party to create, access, inspect or derive data or datasets in the Services other than through designated reports created by or through the Services; (c) copy or reproduce the Comparative Materials, except to the extent necessary to exercise the licensed use of the same hereunder; (d) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or willfully render any part of the Services unusable; (e) use or access the Services to develop a product or service that is competitive with the Services or engage in competitive analysis or benchmarking; (f) transfer, distribute, sell, resell, lease, license, sublicense, operate as a service for or on behalf of others, or otherwise assign the Services or otherwise offer access to the Services to a third party; (g) circumvent or otherwise interfere with any authentication or security measures of the Services or otherwise interfere with or disrupt the integrity or performance of the Services; (h) export the Comparative Materials or technical data or any copy, portions or direct product thereof to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders; (i) transmit unlawful, infringing or harmful data or code, or any data or code that Customer is not authorized to transmit, either to or from the Services; or (j) otherwise use the Services except as expressly permitted hereunder and in the Order. Customer acknowledges that Comparative may, but is under no obligation to, monitor Customer’s use of the Services.
    4. Reservation of Rights. Except as expressly granted in this Agreement, Comparative does not grant to Customer any license or rights (by implication, estoppel, or otherwise) in the Comparative Materials. All other rights are expressly reserved by Comparative. Notwithstanding anything herein to the contrary, all rights in and to the Services and Documentation are licensed and not sold or transferred. Customer will include on any copies it makes of the Services and Documentation any copyright notices or proprietary legends contained within the same.
  3. Fees. Customer will pay Comparative the fees set forth in the Order subject to the payment terms in the Order; if none are provided, Customer will pay Comparative within thirty (30) days of the date of Comparative’s invoice. Except as otherwise specified herein or in the Order: (a) fees are quoted and payable in United States dollars; and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. 
  4. Proprietary Rights and Confidentiality
    1. Proprietary Rights. As between the Parties, Comparative exclusively owns all right, title and interest in and to the Comparative Materials and Customer exclusively owns all right, title and interest in and to Customer’s Confidential Information. 
    2. Feedback. Customer may from time to time provide Comparative suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Services. Comparative will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
    3. Confidentiality. Each Party agrees that it will use the Confidential Information of the other Party solely to perform its obligations and exercise its rights under this Agreement and it will not disclose, or permit to be disclosed, the same, except as otherwise permitted hereunder. However, either Party may disclose Confidential Information to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives (collectively, “Representatives”) who have a need to know and are legally bound to keep such information confidential by confidentiality obligations with respect to the Confidential Information of the other Party consistent with those of this Agreement (provided that the Party disclosing the Confidential Information to its Representatives shall be responsible for any actions of its Representatives); and  as required by law (in which case the receiving Party will provide the disclosing Party with prior written notification thereof, will provide the disclosing Party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). The obligations of confidentiality in this Section 4.3 shall not apply to information that: (a) is or becomes generally known or publicly available through no fault of receiving Party; (b) was properly known to receiving Party, without restriction, prior to disclosure by the disclosing Party; (c) was properly disclosed to the receiving Party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Each Party agrees to exercise due care in protecting the Confidential Information of the other Party from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the licenses contained herein, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Notwithstanding anything to the contrary herein, nothing herein limits or restricts Comparative’s right or ability to use data regarding the performance, availability, usage, integrity and security of the Services.
    4. Customer Data. Any data submitted by Customer to the Services for the purposes of data analysis shall be deemed “Customer Data.” For clarity, Customer Data does not include algorithms, artifacts, models, objects, or software that are part of the Services or used to generate any output from the Services or otherwise delivered as part of the Services. Customer Data is Customer’s Confidential Information. As between Comparative and Customer, Customer retains all rights, title, and interest in and to the Customer Data.  Comparative will delete and erase any Customer Data from the Services within a commercially reasonable time following Customer’s request therefor.  Customer acknowledges and agrees that Comparative is under no obligation to keep, store, maintain, or make available to Customer any Customer Data that has been processed by the Services.  Customer agrees that Comparative may use Customer Data as necessary to make available the Services and perform its obligations hereunder.  Customer agrees that Comparative may use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any aggregated non-personally identifiable information related to any usage of the Services to operate and improve Comparative’s products and services.
  5. NO WARRANTIES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE COMPARATIVE MATERIALS ARE BEING LICENSED AND PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPARATIVE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES IS OFFERED ON A “BETA” BASIS AND HAS NOT BEEN COMMERCIALLY RELEASED, AND THE SERVICES MAY CONTAIN DEFECTS AND DEFICIENCES THAT COMPARATIVE CANNOT OR WILL NOT CORRECT. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICES. 
  6. Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S BREACH OF THE LICENSE OR CONFIDENTIALITY RESTRICTIONS HEREUNDER, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT.
  7. Term and Termination.  The term of this Agreement will commence on the Effective Date and continue for the term set forth in the Order (“Term”) unless otherwise terminated as set forth herein. Each Party may terminate this Agreement upon written notice in the event the other Party commits any material breach of this Agreement and fails to remedy such breach within ten (10) days after written notice of such breach.  Upon termination of this Agreement (a) all licenses and other rights and obligations will immediately terminate except that Sections 1 and 4 through 9 will survive indefinitely; and (b) Customer will immediately (i) cease all use of the Services, (ii) promptly erase all copies of the Comparative Materials in Customer’s possession, and (iii) certify in writing that it has complied with the foregoing (i) and (ii).
  8. Compliance with LawsCustomer warrants that its use of the Comparative Materials will comply in all respects with all applicable laws in connection with the Agreement, including without limitation the U.S. Export Administration Regulations and sanctions regulations administered by the U.S. Treasury Department. 
  9. Miscellaneous. This Agreement comprises the entire agreement between Customer and Comparative with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations, other than any obligations to make payments hereunder, due to causes beyond its reasonable control, including earthquake, flood, pandemic, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree. The Services shall constitute “commercial” computer software. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Customer-Side Application) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Customer-Side Application or Computer Customer-Side Application Documentation). Customer shall not assign, sublicense, or otherwise transfer, by agreement or operation of law, the rights or licenses granted to it hereunder without the prior written consent of Comparative, which consent shall not unreasonably be withheld, and all assignments in violation of this prohibition shall be null and void.  This Agreement is the entire agreement between the Parties relating to the subject matter hereof and may only be modified in a writing signed by both Parties.  This Agreement shall be governed by the laws of the State of California without reference to conflicts of law principles. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. In any dispute arising out of this Agreement, Comparative and Customer each consent to the jurisdiction of both the state and federal courts of Santa Clara County, California and agree to bring any actions arising out of this Agreement in such courts.  If any provision or clause of this Agreement is held unenforceable, the remainder of this Agreement will continue in full force and effect.  Nothing contained herein shall be construed so as to create a joint venture, partnership, or agency between the parties hereto. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.