Comparably Service AgreementLast Updated: November 27, 2019

1. ACCEPTANCE

   This Services Agreement (this “Agreement”) is a legal agreement between you (“Customer”, “you” or “your”) and Comparably, Inc. (“Comparably”) regarding Customer’s use of the cloud-based services platform operated by Comparably (the “Comparably Service(s)”). You and Comparably may be referred to herein individually as a “Party” and collectively as the “Parties”. By accepting the terms of this Agreement or by using the Comparably Service in any way, you agree to be bound by, and to comply with, this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case “you” or “your” or “Customer” shall refer to such entity. The Comparably Services may be subject to supplemental terms, posted guidelines, rules or other terms made available by Comparably from time to time (collectively, the “Additional Terms”), which are incorporated herein by reference provided such terms are mutually agreed to in writing by the Parties. If there is any conflict between any provision in this Agreement and the Additional Terms, this Agreement shall take precedence unless the Additional Terms identify and expressly supersede the provision in this Agreement.

2. ORDERS, ACCESS AND USE

   1. Orders. The Comparably Services to be provided by Comparably under this Agreement will be as set forth in the applicable Order Form.
   2. Provision of Access. Subject to the terms and conditions contained in this Agreement, during the Term Comparably grants to Customer a non-exclusive, non-transferable right to access the features and functions of the applicable Comparably Service. On or as soon as reasonably practicable after this Agreement takes effect, Comparably shall provide to Customer the necessary passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures (the “Access Protocols”) to allow Customer to access the Comparably Services.
   3. Usage Restrictions. Customer will not, and shall not permit any third party, to (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from the Comparably Service or any part thereof; (b) create any derivative product from the Comparably Service; (c) rent, lease, sublicense, sell, assign or otherwise transfer the Comparably Service; (d) use the Comparably Service directly or indirectly to provide a time-sharing or subscription service to any third party or to function as a service bureau or application service provider; or (e) use the Comparably Service for commercial or competitive purposes, including to develop a similar or competitive product. Customer shall not, and shall not permit any third party to, copy, distribute, sell, or otherwise make available any Comparably-supplied content other than as expressly permitted in this Agreement. Customer will ensure that its use of the Comparably Service complies with all applicable laws, statutes, regulations or rules.
   4. Retained Rights; Ownership.
      1. Ownership and Use of Customer Content. Customer retains all right, title and interest in and to any data, information or other content provided by Customer through or in connection with the Comparably Service (“Customer Content”), and Comparably acknowledges that it neither owns nor acquires any additional rights in and to the Customer Content not expressly granted by this Agreement. Subject to the foregoing, Customer hereby grants to Comparably a non-exclusive, worldwide, perpetual, irrevocable right and license to use the Customer Content for the purposes of providing and/or improving Comparably’s products and services, including the Comparably Service. Customer further acknowledges and agrees that Comparably has the right to use any publicly available information or content relating to Customer, including information or content found on Customer’s website, and to aggregate such information or content with Customer Content and any other information, data, or content, to provide and/or improve Comparably’s products and services, including the Comparably Service.
      2. Ownership of Services. Subject to the rights granted in this Agreement, Comparably retains all right, title and interest in and to the Comparably Service, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.

3. CUSTOMER RESPONSIBILITIES

   1. Authorized Users Access to Services. Customer may permit employees of Customer (each, an “Authorized User”) to access and use the features and functions of the Comparably Service as contemplated by this Agreement on behalf of Customer.
   2. Customer Responsibility for Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.

4. FEES AND EXPENSES; PAYMENTS.

   In consideration for the access rights granted to Customer and the services performed by Comparably under this Agreement, Customer will pay to Comparably, without offset or deduction, all fees agreed to by Customer in the attached Order Form. Unless otherwise stated, all fees will be due in advance of the Comparably Service being rendered. All fees will be billed and payable in U.S. dollars via the method indicated in the Order Form. If Customer is delinquent in the payment of undisputed amounts, Comparably may suspend the provision of the Comparably Services to Customer. You agree to pay all charges at the amounts in effect when such charges are incurred. Customer will be responsible for payment of any applicable sales, use and other taxes, duties and similar charges (other than taxes based on Comparably’s income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services.

5. CONFIDENTIAL INFORMATION.

   1. Ownership of Confidential Information. Both Parties agree that all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential (“Confidential Information”) are proprietary to the disclosing Party, and will remain the sole property of the disclosing Party or such third party.
   2. Mutual Confidentiality Obligations. Unless otherwise expressly provided herein, each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (d) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that Comparably may collect aggregated statistical data regarding Customer’s use of the Comparably Service and provide such aggregated statistical data to third parties. In no event shall Comparably provide to third parties specific data regarding Customer or Customer’s Authorized Users.
   3. Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (y) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (z) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do. The obligations set forth in this Section 5 shall survive the termination or expiration of this Agreement.

6. REPRESENTATIONS AND WARRANTIES

   1. Mutual Representations and Warranties. Each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations.
   2. Comparably Representations and Warranties. Comparably represents and warrants that the Comparably Service will materially conform with any documentation or specifications provided by Comparably.

7. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY

   1. Internet Delays. COMPARABLY’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPARABLY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
   2. Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPARABLY SERVICE AND THE DOCUMENTATION ARE PROVIDED “AS IS,” AND COMPARABLY DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. COMPARABLY DOES NOT WARRANT THAT THE COMPARABLY SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE COMPARABLY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
   3. Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF COMPARABLY TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF THE FEES PAID TO COMPARABLY BY CUSTOMER UNDER SECTION 4 DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

8. INDEMNIFICATION

   1. Comparably’s Indemnity Obligations. Comparably agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party : (a) that the Comparably Service infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America; or (b) arising from Comparably’s gross negligence or willful misconduct, provided that Customer promptly notifies Comparably in writing of the claim, cooperates with Comparably, and allows Comparably sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Comparably, at Comparably’s sole discretion, to enable it to continue to use the Comparably Service or the documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing. If Comparably determines that none of these alternatives is reasonably available, Customer shall, upon written request from Comparably, cease use of, and, if applicable, return such materials as are the subject of the infringement claim. Comparably’s obligations in this Section 8.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Comparably Services by Customer, or (ii) combination, operation or use of the Comparably Service or services with other software, hardware or technology not provided by Comparably, or (iii) related to the Customer Content (any of the foregoing circumstances under clauses (i), (ii), and (iii) a “Customer Indemnity Responsibility”). THIS SECTION STATES COMPARABLY’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
   2. Customer’s Indemnity Obligations. Customer agrees to hold, harmless, indemnify, and, at Comparably’s option, defend Comparably from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (a) Customer’s breach of this Agreement or gross negligence or willful misconduct; or (b) a Customer Indemnity Responsibility, provided that Comparably promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim; provided that Customer will not settle any third-party claim against Comparably unless such settlement completely and forever releases Comparably from all liability with respect to such claim or unless Comparably consents to such settlement, and further provided that Comparably will have the right, at its option, to participate in the defense thereof by counsel of its own choice.

9. TERM AND TERMINATION

   1. Term. Subject to any earlier termination as provided herein, the term of this Agreement will commence on the Term Start Date set forth in the Order Form to which this Agreement is attached and will automatically renew for successive one (1) year term, unless either Party provides written notice of its desire not to renew at least thirty (30) days prior to the expiration of the then-current term (the initial term, together with any renewal terms, collectively, the “Term”).
   2. Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party in accordance with Section 10.4, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.
   3. Effect of Termination. Upon any termination of this Agreement, Customer will (a) immediately discontinue all use of the Comparably Service and any Comparably Confidential Information; and (b) promptly pay to Comparably any remaining amounts due and payable under this Agreement.
   4. Survival. In addition to obligations that accrued during the Term, the provisions of Sections 2.4, 5, 7, 8, 9.3. 9.4 and 10 will survive the termination of this Agreement.

10. MISCELLANEOUS.

    1. Publicity. Comparably reserves the right to reference the Customer as a user of the Comparably Service. Neither Party shall make a formal announcement or press release of this Agreement or the relationship between the Parties without the prior written consent of the other Party. Consent shall not be unreasonably withheld or delayed.
    2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement. Neither Party will be bound by any inducements or representations other than as expressly provided for in this Agreement.
    3. Independent Contractors. In making and performing this Agreement, Customer and Comparably act and will act at all times as independent contractors, and nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.
    4. Notices. Except as otherwise provided herein, all notices required by or relating to this Agreement may be communicated by e-mail, provided that the sender retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. Notwithstanding the foregoing, any notice of breach of this Agreement shall be sent in writing and shall be delivered personally, sent via overnight delivery service, or sent via certified mail. Such notices shall be deemed delivered upon receipt. Notices to Comparably shall be sent (as applicable) to: 1316 3rd Street Promenade, Suite 111, Santa Monica, CA 90401 or via email to [email protected] Notices to Customer shall be sent (as applicable) to the email or postal address provided by Customer on the attached Order Form. Either Party may change its addresses for notice by sending notice in accordance with this section.
    5. Assignment; Delegation. This Agreement, and any rights or obligations in this Agreement, shall not be assigned by either Party without the prior written consent of the other Party; provided, however, that a Party may assign this Agreement upon notice to the other Party (a) to an affiliate as part of a corporate reorganization; or (b) to a successor in interest to substantially all of the stock or assets of the Party, provided that such successor agrees in writing to be bound by the terms and conditions of this Agreement.
    6. Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
    7. Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
    8. Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay.
    9. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS IS HEREBY EXCLUDED.
    10. Dispute Resolution. Any dispute arising out of this Agreement shall be resolved by mediation or, failing mediation, by binding arbitration. The agreement to mediate and arbitrate contained in this Section shall continue in full force and effect despite the expiration, rescission or termination of this Agreement. If the dispute is not resolved by mediation within thirty (30) days from initiation of a claim by either Party, the dispute will be referred to arbitration in Los Angeles County, California, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each Party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. The federal and state courts sitting in Los Angeles County, California will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.

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