1. DEFINITIONS. The following capitalized terms have the meanings set forth below:
"Affiliate" means, with respect to either Party, any person, organization or entity controlling, controlled by or under common control with, such Party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or indirectly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
“Customer” means the entity that enters into any Order Forms hereunder.
"Customer Data" means data or information inputted or uploaded to the Service by or on behalf of Customer comprised of Customer's information on its and/or one or more of its Affiliate's Employees compensation and benefits plan, as further described in an Order Form.
“Feedback” means any suggestions, feedback, comments or other input related to the Service or the Site, or any enhancements, improvements, modifications or derivative works of the Service or the Site, that are provided by Customer or any User, or any Site User.
"Employee(s)" means Customer's personnel about whom Customer provides Compete with compensation and benefits plan information as part of the Customer Data.
"Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to any technology, invention, work of authorship, software, database, data, know-how, software, design, and/or other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
"Order Form" means an order form, quote, proposal (or similarly titled document) for the Service, which is executed by an authorized representative of Customer and Compete and which will be governed by the terms and conditions set forth herein.
“Personal Data” means any information that identifies or could be used to identify an individual.
“Security Incident” means any accidental or unauthorized disclosure of or access to any Personal Data included in the Customer Data.
“Site User” means any visitor to or user of the Site who is not a Customer.
"Subscription Scope" means any Service usage and/or consumption limitations and parameters set forth in an
“Usage Data” means non-Customer-identifying information, data, analyses, and/or intelligence relating to the operation, support, and/or use of the Service by Customer and its Users.
"Users" means employees or contractors of Customer and/or its Affiliates who are authorized by Customer to access and use the Service.
- SITE USERS
- SERVICE SUBSCRIPTION
- 3.1. Service Subscription. Subject to the terms and conditions of the applicable Agreement and Subscription Scope, Compete grants Customer a limited, non-exclusive, non-assignable (except as provided in Section 12.2 (Assignment) below), non-sublicensable, non-transferable right and license, during the initial Subscription Term (defined in the order form), to permit access and use the Service by Users solely for Customer's internal end-use (collectively, the "Subscription"). Customer shall be responsible for all Users’ access to and use of the Service. Customer acknowledges and agrees that Compete may collect Usage Data during the course of use of the Service by Customer or its Users
Submission of Customer Data and Access to Service.
- 3.2. Commencing promptly on the Subscription Start Date, Customer shall submit the Customer Data to
Compete. Customer acknowledges and agrees that access to the Service is conditional upon (a) Compete's receipt of all Customer Data and (b) the advance payment by the Customer of the Subscription Fees (as defined below). Contingent upon the payment by the Customer of the Subscription Fees pursuant to Section 4 below, Compete will provide access to the Service within five (5) business days following Compete's receipt of such Customer Data. Customer’s continued use of the Service shall be contingent upon the submission by the Customer of updated Customer Data once every six (6) months, commencing as of the Subscription Start Date. If Customer does not update the Data as required, then commencing as of the date upon which the Customer Data was meant to have been updated, Compete may, at its discretion, suspend Customer’s access to the Service until such time as the Customer Data has been updated as required.
For avoidance of doubt, it is clarified that Customer (or any of its Affiliates, if applicable) will not receive access to the Service with respect to any region, unless Customer (or its Affiliate) have provided Customer Data regarding Customer’s personnel in such region, and where required by Compete, the access to such other region(s) shall be made contingent upon payment by Customer of applicable fees or Customer having been provided a separate license by Compete.
- 3.3. Account Setup. After Customer receives access to the Service, it shall then set up an administrative account with Compete, by submitting the information requested in the applicable Service interface ("Account"). Each User will be required to set up a user account (each, a "User Account", and references herein to the "Account" shall be deemed to include all such User Accounts if applicable). Customer represents that all information submitted during the registration process, including Customer Data, is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under or in the Account. Customer will require that all Users keep login information strictly confidential and not share such information with any unauthorized person.
Customer may request Compete to authorize a third-party (i.e., an individual who is an external consultant or service provider of the Customer) as a User in Customer’s Account. It is agreed and acknowledged that Compete shall have complete discretion whether or not to add such requested third party as a User in Customer’s Account. Further, Customer hereby undertakes and agrees that: (i) Customer’s instruction to Compete to provide such third-party individual with access as a User to Customer’s Account, shall be in accordance with applicable law; (ii) to the extent such third-party is added as a User, Customer will be liable to Compete for any and all activity by such third-party User in the Account; and (iii) to the extent such third-party is added as a User, Customer shall indemnify and hold Compete harmless from any and all claims which may be directed to Compete in respect of the granting of such access by Compete to such third-party in accordance with Customer’s instructions, and/or the use by such third party of the Service.
- 3.4. Support Services. During the applicable Subscription Term, and subject to the payment of the Subscription Fees, Compete (and/or its Affiliates) shall provide Customers with the technical support and maintenance services set forth in Exhibit A hereto ("Support Services"). The Support Services (in whole or in part) may be performed by Compete-certified third party service providers, and Compete shall remain primarily responsible for such service providers' performance of the Support Services.
- 4.1. Subscription Fees. Concurrently with or immediately following the Subscription Start Date and as a condition to the access and use of the Service, Customers shall pay Compete the Subscription fees specified in their applicable Order Form(s) (the "Subscription Fees") and in accordance with this Section 4. Subscription Fees are subject to change annually upon Subscription renewal and/or in the event of a change in the Subscription Scope.
- 4.2. General. Unless expressly stated otherwise in the Order Form: (a) all payments under an Agreement are non-refundable, and are without any right of set-off or cancellation; (b) all Subscription Fees are payable, and shall be invoiced, in advance, and shall be paid concurrently with or immediately after the Subscription Start Date against an invoice to be issued by Compete concurrently with or immediately after the Subscription Start Date.
- 4.3. Suspension. Compete reserves the right to temporarily suspend provision of the Service: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Compete deems such suspension necessary as a result of Customer’s breach under Section 6 above (Restrictions); (c) if Compete reasonably determines suspension is necessary to avoid material harm to Compete, to its other customers, or to the Service, including if the Service's cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Compete’s control, or (d) as required by law or at the request of governmental entities.
- 4.4. Taxes. Amounts payable under an Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Compete's net income. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under an Agreement, then the amounts due to Compete shall be increased by the amount necessary so that Compete receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction. If a purchase order (or purchase order number) is required by Customer in order for an invoice to be paid, Customer shall promptly provide such purchase order (or number) to Compete. Any terms or conditions (whether printed, hyperlinked, or otherwise) in a purchase order or related correspondence, which purport to modify or supplement the Agreement (or the corresponding Order Form), shall be void and of no effect.
5. RESTRICTIONS; OWNERSHIP
- 5.1. Restrictions. You shall not, and, if applicable, Customers shall ensure that Users do not, do or permit or encourage any of the following license restrictions (in whole or in part): (a) copy, "frame" or "mirror" the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service or Site to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service or Site; (d) modify, alter, adapt, arrange, or translate the Service or Site; (e) systematically collect any data from the Service or Site (by scraping or otherwise), attempt to re-identify de-identified data from the Service's platform, decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service or Site; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service or Site; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service or Site; (h) make a derivative work of the Service or Site, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service or Site; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of licenses, servers, nodes, or users that directly access or use the Service of Site (sometimes referred to as 'virtualization', 'multiplexing' or 'pooling') in order to circumvent the restrictions on use contained herein or, if applicable, the Subscription Scope; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Service or Site; (l) take any action that imposes or may impose (as determined in Compete's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service or Site, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (m) exceed the Subscription Scope, if applicable, or otherwise access or use the Service or Site other than as expressly permitted herein or in the applicable Agreement.
- 5.2. Ownership. Compete reserves all rights, title and interest in and to the Service and the Site and all related software and technology, as well as all improvements and modifications to and derivative works of any of the foregoing, together with all related intellectual property rights. No rights are granted to you or, if applicable, any User, hereunder, whether by implied license, estoppel, operation of law or otherwise, other than the limited license expressly set forth above. Without limiting the foregoing, Compete (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to:
(a) the Service and the Site, all content appearing therein, all related software and technology, and all intellectual property rights in the foregoing;
(b) its Confidential Information;
(c) all Usage Data;
- (d) all Aggregate Data; and
- (e) any and all suggestions, improvements, derivative works, enhancement requests and/or
modifications of/to any of the foregoing, regardless of inventorship or authorship, including, without limitation, all Feedback.
You hereby irrevocably assign to Compete any rights that you may have in any of the foregoing,
and shall make all assignments and/or waivers necessary or reasonably requested by Compete to ensure and/or provide Compete (and/or its designee(s)) the ownership rights set forth in this paragraph. Compete shall not be required to make any payment or provide any royalty or attribution to you or any third party in connection with any such assignment.
6. PRIVACY AND SECURITY.
- 6.2. Customer will provide all necessary notices and, where applicable, secure all necessary consents or other lawful grounds, to facilitate Compete’s use of any personal details and data provided by Customer and Customer’s Users to Compete, for the purposes under this Agreement.
- 6.3. Note that if you are a Customer, you must notify your employees and any other natural person who can be identified by data that you provide us that: (A) they do not have a legal obligation to provide us with Personal Data related to them; and, (B) that they have the legal right to refuse the collection and use of such data. However, in such case we may not be able to provide you some (or all) of the services through the Service.”
- 6.4. Customer Data. As between Customer and Compete, Customer is, and shall be, the sole and exclusive owner of all Customer Data. Customer hereby grants Compete and its Affiliates a worldwide, non-exclusive right and license, during the Term, to access and use the Customer Data in connection with Compete’s performance of its obligations hereunder. Customer hereby further grants Compete and its affiliates a worldwide, non-exclusive, perpetual (during the Term and thereafter), irrevocable, royalty-free, sublicensable, and transferable license to (i) de-identify the Customer Data ( “De-Identified Data”) and aggregate the Customer Data with data and information relating to other Compete customers (such aggregated data is referred to herein as “Aggregated Data”), in each case in a manner that does not identify any Customer or any of its employees, and utilize, modify, analyze, process, perform, display, and distribute De-Identified Data and/or Aggregated Data for any purpose, including, without limitation, in connection with the Service and other products and/or services provided by Compete.
- 6.5. Customer represents and warrants that: (a) it has obtained and shall maintain throughout the Term all required rights, consents, authorizations and licenses, and all ongoing legal bases (if applicable), necessary to provide, make available, and otherwise expose Customer Data to Compete, its Affiliates, and to Compete’s sub-processors and allow for the use permitted herein; and (b) iCustomer shall not grant access to any of its Customer Data through the Service to any individual with respect to which Customer has not obtained the necessary consent, authorization, license and legal bases (if applicable) necessary in order to do so.
- 6.6. Security. Compete will undertake all reasonable security measures required in accordance with applicable industry standards and at Customer’s written request will provide a written description of Compete’s technical and organizational measures implemented, or to be implemented, to protect Customer Data. Notwithstanding the above, Compete shall not be responsible for any Security Incident or other loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by Customer, any third party acting on behalf of Customer, or due to any act or omission beyond Compete’s reasonable control. Compete will (i) use commercially reasonable efforts to notify Customer of any Security Incident within 48 hours of becoming aware of such Security Incident; (ii) take measures and actions as are reasonably necessary to remedy or mitigate the effects of such Security Incident; and (iii) keep Customer informed of developments in connection with the Security Incident.
7. CONFIDENTIALITY. Each of Customer and Compete (the "Recipient") may have access to certain non-public or proprietary information and materials of the other (the "Discloser"), whether in tangible or intangible form, including, without limitation, all information that is marked or identified as “confidential” or “proprietary” or with similar markings, or which should reasonably be understood to be confidential under the circumstances ("Confidential Information"). Without limiting the foregoing, Compete’s Confidential Information includes the pricing and payment terms set forth in any Order Form, and Customer’s Confidential Information includes the Customer Data. Confidential Information shall not include information and material which, the Recipient can establish by written documentation: (a) at the time of disclosure by Discloser to Recipient hereunder, is publicly available; (b) after disclosure by Discloser to Recipient hereunder, becomes publicly available through no fault of the Recipient; (c) was rightfully in the Recipient's possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose or make available the Discloser's Confidential Information to any third party (including without limitation by way of publishing), except to its employees, contractors, advisers, agents and investors, subject to substantially similar written confidentiality undertakings). Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential
Information of like nature (but in no event less than a reasonable level), to protect the Discloser's Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser's Confidential Information solely for the purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such law, regulation or order (as the case may be). Upon termination of the applicable Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and, upon request by the Discloser, certify compliance in writing. For the avoidance of doubt, the aforementioned shall not apply to Anonymized Data or Aggregate Data.
- DISCLAIMERS. THE SERVICE AND THE SITE ARE PROVIDED AND MADE AVAILABLE HEREUNDER ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS, WARRANTIES AND REPRESENTATIONS (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OR REPRESENTATIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED. COMPETE DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING, WITHOUT LIMITATION, THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF THE FOREGOING, OR AS REGARDS TO COMPLIANCE WITH ANY LAWS OR REGULATIONS. COMPETE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR HOSTING PROVIDERS.
- LIMITATION OF LIABILITY
- 9.1. EXCEPT FOR BREACH OF THE SUBSCRIPTION SCOPE, AND/OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A)ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B)ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
(C) ANY LOSS OF, OR DAMAGE TO, DATA, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
(D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
- 9.2. EXCEPT FOR (A) BREACH OF THE SUBSCRIPTION SCOPE, (B) OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE COMBINED AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
- 9.3. THE FOREGOING EXCLUSIONS AND LIMITATIONS SET OUT IN THIS SECTION (LIMITATION OF LIABILITY) SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
- 10.1. In the event a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer's authorized access and use of the Service infringes such third party's copyright or patent (an "Infringement Claim"), Compete shall: (a) at its own expense, defend Customer against the Infringement Claim; and (b) indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer (or otherwise agreed in settlement) under the Infringement Claim. As a condition to the foregoing, Customer agrees: (A) to provide Compete with prompt written notice of the Infringement Claim, provided, however, that failure to provide such notice will not relieve Compete of its indemnity obligations hereunder unless it is materially prejudiced by such failure; (B) to cede to Compete full control of the defense and settlement of the Infringement Claim (except that any non-monetary obligation imposed on Customer under a settlement shall require Customer's prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide Compete with all information and assistance reasonably requested by Compete; and (D) not to admit any liability under (or otherwise compromise the defense of) the Infringement Claim without Customer’s prior written consent. Customer may participate in the defense of the Infringement Claim at Customer's own cost and expense.
- 10.2. Compete will have no liability under this Section (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Service not made by Compete; (ii) the combination of the Service with any third party product or service; (iii) Customer instructions or specifications; (iv) use of the Service other than as permitted in the applicable Agreement; or (v) any Customer Data.
- 10.3. Should the Service (in whole or in part) become, or in Compete's opinion be likely to become, the subject of an Infringement Claim, then Customer permits Compete, at Compete's option and expense, to either: (x) obtain for Customer the right to continue using the Service (or part thereof); or (y) replace or modify the Service (or part thereof) so that it's use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in Compete's opinion, commercially feasible, Compete may terminate this Agreement upon written notice to Customer, and Customer shall be entitled to receive a pro-rated refund of any prepaid and unutilized Subscription Fees hereunder based on the remainder of the then-current Subscription Term.
- 10.4. This Section represents Compete's sole liability, and Customer's sole remedy, for any Infringement Claim.
11. TERM AND TERMINATION
- 11.1. Term. Each Agreement commences on the Effective Date of the applicable Order Form and, unless terminated in accordance herewith, shall continue in full force and effect for the duration of that Order Form. Each Order Form and initial Subscription Term shall automatically renew for successive subscription terms of equal length, unless either Party notifies the other Party in writing of its intent not to renew the Order Form, not less than ninety (90) days prior to the expiration of the then-current Subscription Term.
- 11.2. Termination for Breach. Each Party may terminate an Agreement immediately upon written notice to the other Party if the other Party commits a material breach under the Agreement and, if curable, fails to cure that breach within sixty (60) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).
- 11.3. Termination for Bankruptcy. Each Party may terminate an Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.
- 12.1. Use of Name and Logo. Compete may use Customer’s name and logo on its website and in its
promotional materials in order to state that Customer is a customer of Compete.
- 12.2. External Sites. The Site may contain links to third-party websites (“External Sites”). The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. Compete is not responsible for the content of any linked External Sites and does not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk
- 12.4. Entire Agreement and Amendments. These Term of Use, or, if applicable, the Agreement , represents the entire agreement between you and Compete with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by you and Compete with respect to such subject matter. If applicable, in the event of a conflict between the terms contained herein and the terms of any Order Form, the terms contained herein shall control, unless the Order Form specifically states otherwise.
- 12.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- 12.8. Waiver and Remedies. No failure or delay on the part of either party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise herein, no right or remedy conferred upon or reserved by either party hereunder is intended to be, or will be deemed, exclusive of any other right or remedy hereunder, at law, or in equity, but will be cumulative of such other rights and remedies.
- 12.9. Relationship. The relationship of Compete and the Customer is solely that of independent contractors, neither party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise hereunder. Nothing herein shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership, association, or otherwise between the parties. Neither party has any authority to enter into agreements of any kind on behalf of the other party, and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other party.
- 12.10. Force Majeure. If Compete’s performance (excluding payment obligations) hereunder is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below), Compete shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed thereby, provided that Compete shall promptly notify you of the occurrence of such event. If and when performance is resumed, all dates specified herein and/or in any Order Form, if applicable, shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such event of Force Majeure. For purposes of this Agreement, "Force Majeure" means: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of Compete.
- 12.11. Notices. All notices or other communications provided for in connection with an Agreement shall be in writing and shall be given in person, by courier, by facsimile, email, or by registered or certified mail, postage prepaid, addressed to the address(es) set forth in the applicable Order Form. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, those given by facsimile transmission with confirmation or receipt shall be deemed to have been given as of the date of transmission thereof (provided that such date is a business day in the country of receipt and if not, the next business day), and all notices and other communications sent by registered mail shall be deemed given three (3) days after posting. Notices sent by email shall be deemed received upon receipt of such email.
EXHIBIT A: SUPPORT SERVICES
1. Service Availability.
1.1 Standards. “Availability” means that access to the Service is available to Customer. The Service shall
perform in accordance with the following standards:
* Excludes scheduled downtime (of which Compete will give at least one (1) business days' notice and which Compete will reasonable efforts to schedule during weekend hours from Friday 5:00 p.m., Israel time, to Sunday 5:00 a.m., Israel time), not to exceed forty-eight (48) hours in any twelve (12) month period; excludes unavailability to the extent attributable to the Customer’s own systems, failure due to external services and Force Majeure.
2. Technical Support & Problem Resolution.
2.1 Technical Support. Compete will provide support during business hours, 9:00 a.m. – 6:00 p.m. Israel time Sunday - Thursday via email at email@example.com for general advice and technical support, as well as technical assistance and remediation for operational issues as further described below.
2.2 Problem Resolution. Compete will make commercially reasonable efforts to correct problems that are reported by Customer, excluding problems attributed to the Customer’s own systems, to external services or to force majeure, in accordance with the following table (Fix Times):