The following terms, when used in these Comparative Terms of Service (“Terms of Service”) will have the following meanings, and any terms capitalized but not defined will have the meaning set forth in the applicable Order (defined below)
“Agreement” means these Terms of Service, any Order(s) by which these Terms of Service are incorporated, the DPA, and any other terms linked or referenced herein.
“Comparative Catalog” means Comparative’s catalog containing the pricing and a description of products and services contained in or offered as add-on offerings in each Subscription Package as may be updated by Comparative from time to time in its sole discretion.
“Comparative Materials” means the Platform, Documentation, Reports and any other materials or information (including Comparative’s Confidential Information) delivered or made available by Comparative under this Agreement.
“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.
“DPA” means the Data Processing Addendum located at comparative.ai/dpa as may be updated by Comparative from time to time in its sole discretion.
“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 Platform.
“Order” means any ordering document signed or acknowledged by both parties in writing referencing these Terms of Service that sets forth the Subscription Package to the Platform to be provided hereunder, and pricing therefor to be paid by Customer, including any process completed, executed, or approved by Customer (e.g., changes communicated to Comparative by Customer via email, or any other means accepted by Comparative).
“Report” means a report generated by the Platform and made available to Customer during the Term, as further described in Section 2.2.
“Platform” means the Comparative data analytics platform made available as software as services basis to Customer, whether on a trial or paid basis, pursuant to the terms of an Order and in accordance with the usage set forth thereunder.
“Subscription Package” means the packaged subscription plan(s) for the Platform and the functionality, products and services associated therewith (as detailed on the Comparative Catalog).
“Users” means Customer’s employees, representatives, consultants, contractors, or agents who are authorized to use and access the Platform pursuant the applicable Subscription Package set forth in an Order for Customer’s benefit and who have unique user identifications and passwords for the Platform.
License to the Services. Subject to the terms and conditions of this Agreement, Comparative hereby grants to Customer, during the applicable Order Term, a non-exclusive, non-sublicensable, non-transferable right to access and use the Platform in accordance with the Documentation pursuant to and subject to the Subscription Package set forth in the Order solely for Customer’s internal business purposes.
Dashboards. Subject to the terms and conditions of this Agreement, Comparative hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicensable license to access, use, reproduce (without modification) a reasonable number of copies of, download (in any format or medium then-currently enabled by the Platform) and display the Reports, subject to the Subscription Package set forth in the applicable Order. Customer will include on any copies it makes of the Reports any copyright notices or proprietary legends contained within the same. Each Report includes a set of Key Metrics as determined by the Customer. The number of Key Metrics are based on the limits for each Subscription Package as set forth in the Comparative Catalog.
Key Metric. A Key Metric assesses a Customer metrics based on the Customer Data as analyzed against a set of specific input factors including Related Metrics and Dimension Drilldowns as selected by the Customer. For the avoidance of doubt, the output of each analysis against a unique set of input factors constitutes a separate Key Metric and Customer may request (and Comparative may make available to Customer, subject to payment of applicable fees) multiple Key Metrics for a single Customer metric.
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 Platform. Customer will include on any copies it makes of the Platform and Documentation the copyright notices or proprietary legends contained within the same.
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 Platform 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 Platform other than through designated Reports created by or through the Platform; (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 Platform, breach the security or authentication measures of the Platform without proper authorization or willfully render any part of the Platform unusable; (e) use or access the Platform to develop a product or service that is competitive with the Platform 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 Platform or otherwise offer access to the Platform to a third party; (g) circumvent or otherwise interfere with any authentication or security measures of the Platform or otherwise interfere with or disrupt the integrity or performance of the Platform; (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 Platform; or (j) otherwise use the Platform except as expressly permitted hereunder and in the Order. Customer must limit access to the Platform to the number of individuals indicated in the Order. Customer acknowledges that Comparative may, but is under no obligation to, monitor Customer’s use of the Platform.
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 Platform and Documentation are licensed and not sold or transferred. Customer will include on any copies it makes of the Documentation any copyright notices or proprietary legends contained within the same.
Pilot. Subject to the terms of an Order, Comparative may offer a trial subscription to a paid Subscription Package for free or at special discounted prices (“Pilot”). Unless otherwise stated in an Order, the Pilot will automatically become a paying subscription for the Subscription Package set forth in the applicable Order at the current subscription rate if Customer does not cancel before the end of the pilot period. ANY CUSTOMER DATA CUSTOMER SUBMITS TO THE PLATFORM, AND ANY CONFIGURATIONS OR INTEGRATIONS MADE TO THE PLATFORM BY CUSTOMER, DURING YOU’RE A FREE PILOT WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION PACKAGE TO THE PLATFORM OR EXPORT SUCH CUSTOMER DATA, BEFORE THE END OF THE TRIAL PERIOD.
Definition. Any data submitted by Customer to the Platform 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 Platform or used to generate any output from the Platform or otherwise delivered as part of the Platform. 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.
License to Customer Data. Customer hereby grants to Comparative a non-exclusive, royalty-free, worldwide license to store, analyze, reproduce, process, distribute, display, and otherwise use the Customer Data to provide the Platform to Customer during the Term and to operate and improve Comparative’s products and services. 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 Platform.
Access to Platform. In order to make Customer Data available on or through the Platform, Customer may elect to grant Comparative access to a platform or other virtual storage facility on which such Customer Data is stored (the “Data Storage Platform”). If Customer grants Comparative access to any Data Storage Platform, Customer represents and warrants that (i) such access and the performance of the Platform comply with the terms and conditions of such Data Storage Platform; (ii) that Customer is entitled to grant Comparative such access; (iii) that Comparative will not be obligated to pay any fees or be subject to any usage limitations imposed by such Data Storage Platform.
Authority. Customer hereby represents and warrants, to and for the benefit of Comparative and its affiliates, that it has all requisite capacity, power, and authority to grant all rights and licenses granted in this Section 3 and provide Comparative with access to the Customer Data. The steps necessary for Comparative to collect and/or receive the Customer Data, whether through a Data Storage Platform or otherwise, have been duly authorized by all necessary action of Customer, and no other proceedings are necessary to authorize Comparative’s access to the Customer Data.
Data Privacy. The parties agree to the terms of the DPA.
Fees. Customer will pay Comparative the fees set forth in the Order subject to the payment terms in the Order; provided that, if no payment terms are expressly set forth in any Order, 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-refundable. Any undisputed fees not paid when due shall accrue interest at the rate of one and one half percent (1.5%) per month, or the greatest amount permitted by applicable law (if less). Comparative reserves the right to increase the fees payable under an Order effective twelve (12) months after the date of the initial Order, by providing written notice of such increase to Customer at least sixty (60) days prior to the end of the then-current term.
Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Comparative. Customer will not withhold any taxes from any amounts due to Comparative.
Excess Usage. In the event that Customer exceeds the number of Users or Key Metrics under the applicable Subscription Package set forth in an Order for such Order Term (“Excess Usage”), (i) the license quantity shall be automatically amended to the amount of such Excess Usage on a go-forward basis for the remainder of the applicable Order Term; (ii) the fees payable for such additional quantity will be at Comparative’s then current rates for such usage as set forth in the Comparative Catalog; and (iii) upon invoice, Customer will pay for the Excess Usage at the amounts so invoiced.
Other Changes. In the event Customer chooses to upgrade its Subscription Package by giving notice to Comparative (email will suffice) (“Upgrade”), (i) such Upgrade will automatically amend the applicable Subscription Package set forth in an Order on a go-forward basis for the remainder of the applicable Order Term; (ii) the fees payable for such Upgrade will be at Comparative’s then current rates for such usage as set forth in the Comparative Catalog; and (iii) upon invoice, Customer will pay for the corresponding fees of the applicable Subscription Package at the amounts so invoiced. For any other changes to an Order (e.g., downgrades), Customer will contact Comparative to request any changes, and any such changes will become effective in the next Subscription Term.
Proprietary Rights. As between the Parties, Comparative exclusively owns all right, title and interest in and to the Comparative Materials. Nothing in the Agreement or any attachment hereto shall be understood to prevent Comparative from developing work product or deliverables similar to the Comparative Materials or any Reports for other customers.
Feedback. Customer may from time to time provide Comparative suggestions or comments for enhancements or improvements, new features or functionality or other feedback with respect to the Comparative Materials or Comparative’s other products and services (“Feedback”). Customer hereby grants Comparative a perpetual, irrevocable, non-exclusive, fee-free, fully-paid, freely transferable, freely sublicensable right and license to use and exploit the Feedback for any purpose.
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 5.3 shall not apply to information that: (a) is or becomes generally known or publicly available through no fault of the receiving Party; (b) was properly known to the 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 Platform
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, COMPARATIVE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, OR ACCURACY OF RESULTS. COMPARATIVE DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE, OR THAT ANY DATA PROVIDED BY OR THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY REPORT OR DATA CONTAINED THEREIN, WILL BE ACCURATE OR COMPLETE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CUSTOMER BEARS ALL RESPONSIBILITY, AND COMPARATIVE WILL HAVE NO LIABILITY FOR DECISIONS BASED ON ANY CUSTOMER DATA, OR ANY OTHER INFORMATION PROVIDED TO CUSTOMER VIA THE SERVICE OR BY COMPARATIVE.
By Comparative. Comparative shall: (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use, as authorized in the Agreement, of the Comparative Materials provided to Customer hereunder infringes or misappropriates the intellectual property rights of any third party (a “Claim”); and (ii) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) for any such Claim defended by Comparative, provided that Customer provides Comparative with (1) prompt written notice of, (2) sole control over the defense and settlement of, and (3) all information and assistance reasonably requested by Comparative in connection with the defense or settlement of, any such Claim. If any intellectual property infringement Claim is brought or threatened, Comparative may, at its sole option and expense: (w) procure for Customer the right to continue to use the Comparative Materials; (x) modify the Comparative Materials, as applicable, to make it non-infringing; (y) replace the affected aspect of the infringing Comparative Materials with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the Agreement. Notwithstanding the foregoing, Comparative will have no liability to Customer: for any use of the Platform in combination with software, products or services not provided by Comparative; to the extent that the Platform would not be infringing but for such combination or modification; for Customer’s failure to use the Platform in accordance with the Agreement; or for any claims arising from or related to Customer Data.
Disclaimer. SECTION 7.1 STATES THE ENTIRE LIABILITY OF COMPARATIVE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY COMPARATIVE, THE COMPARATIVE MATERIALS, OR ANY PART THEREOF.
By Customer. Notwithstanding anything to the contrary in Section 7.1, Customer shall defend or, at its option, settle, any claim brought against Comparative by a third party: (i) alleging that the use by or on behalf of Comparative of the Customer Data in accordance with the Agreement violates a third party’s rights or any laws; (ii) arising out of the use of the Platform in violation of applicable law; or (iii) arising out of the business of Customer. Customer will indemnify Comparative for all costs, liabilities, damages, and expenses incurred by Comparative (or the amount of any settlement entered into or approved in writing by Customer) with respect to such a claim. Comparative shall provide Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim.
EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S BREACH OF (1) ITS REPRESENTATIONS AND WARRANTIES, OR (2) 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.
Comparative may use Customer’s name and/or logo to show that Customer is a customer of Comparative for marketing or promotional purposes on Comparative’s website, in a case study, and in other communication with existing or potential Comparative customers.
Term. The Agreement will start on the Effective Date and will continue until terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in an Order, each Order will continue until completion of the Initial Term, and upon expiration of the Initial Term, shall automatically renew, except as expressly set forth on the Order, for consecutive periods of the same duration as the Initial Term (each such period with respect to that Order, a “Subscription Term” and all Subscription Terms of an Order together with the Initial Term of that Order, the “Order Term”) unless either party provides notice of non-renewal at least 7 days prior to the end of the then-current term.
Termination. Either party may terminate the Agreement by written notice: (i) if no Orders have been in effect between the parties for a period of 30 consecutive days; (ii) the other party is in material breach of the Agreement, where such material breach is not cured within 30 days after written notice of such breach; or (iii) if: (a) the other party ceases to carry on its business; (b) a receiver or similar officer is appointed for the other party’s business, property, affairs or revenues and such proceedings continue for 45 days; (c) the other party becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (d) proceedings under bankruptcy or insolvency laws are commenced by or against the other party and are not dismissed within 45 days. Notwithstanding anything to the contrary herein, if Customer fails to pay any amounts owed to Comparative within 30 days after written notice of nonpayment of any amounts owed to Comparative, which may be provided any time after any amount becomes past due, Comparative may immediately terminate this Agreement. For the avoidance of doubt, Customer’s noncompliance with Section 2.4 shall be deemed a material breach of the Agreement.
Effect of Termination. Upon the effective date of the expiration or termination of the Agreement for any reason: (i) Customer’s access to the Platform, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately; and (iii) Customer shall promptly return, or at Comparative’s request destroy and certify the destruction of any tangible embodiments of Comparative’s Confidential Information (except that Customer may retain any Reports provided to Customer during the Term). The following provisions will survive the expiration or termination of the Agreement for any reason: Sections 1, 2.4, 2.5, 3.2, and 5 through 8, 10.3, 11, and 12.
Customer 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.
Comparative may amend these Terms of Service from time to time, in which case the new Terms of Service will supersede prior versions. Comparative will notify Customer not less than thirty (30) days prior to the effective date of any such amendment and Customer continued use of the Platform following the effective date of any such amendment may be relied upon by Comparative as Customer’s consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement. In the event of a conflict between these Terms of Service and any Order, the terms and conditions of these Terms of Service will control unless otherwise expressly stated in such Order. 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). No terms of any purchase order, acknowledgement, or other form provided by Customer will modify the Agreement, regardless of any failure of Comparative to object to such terms. Except for the obligation to pay money, 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 Platform shall constitute “commercial” computer software. Government technical data and software rights related to the Platform 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 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 Los Angeles 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. Comparative may use subcontractors or otherwise delegate aspects of its performance under the Agreement; provided that Comparative shall remain responsible hereunder for any such subcontractor’s performance and their acts and omissions. The relationship between the parties shall be that of independent contractors. 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, email to an authorized representative of a party expressly referencing this Section 12, or by overnight delivery. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courier service, 3 days after deposit in certified mail, or upon acknowledgment of receipt of an email.