SOFTWARE AS A SERVICE AGREEMENT


We have updated our Licence Agreement which we now refer to as the “Software as a Service Agreement”. If you are a new Client, then this Software as a Service Agreement will be effective as of September 29, 2017. If You are an existing Client (Licensee), we are providing you with prior notice of these changes which will be effective as of October 1, 2017.

PLEASE READ THIS AGREEMENT BEFORE USING COMPETERA’S SERVICES. BY ACCESSING OR USING COMPETERA’S SOFTWARE OR SERVICES OFFERING, YOU (“the Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES. IF THE PARTIES HAVE A FULLY EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR COMPETERA’S SOFTWARE AS A SERVICE AGREEMENT, SUCH AGREEMENT SHALL SUPERSEDE THIS AGREEMENT.

The present Agreement specifies terms and conditions for the software associated under the trademark COMPETERA™ (hereinafter referred to as the “Software”). Hereinafter the Competera and the Customer are collectively referred to as the “Parties” and each separately as the “Party”.

Customer agrees to be bound by the terms and conditions of this Agreement by signing SOFTWARE CONFIGURATION ORDER FORM (hereinafter referred to as the “Order form”) which is the integral part of the present Agreement. This Agreement shall become effective between Competera and Customer on the date the Parties sign the Order form (hereinafter referred to as the “Effective date”).

If you do not wish to be bound by the terms and conditions of this Agreement, you may refuse to sign, access or use the Software. Accepting terms and conditions stipulated below shall be a compulsory condition for lawful use of the Software.

If you have entered into the separate paid agreement with COMPETERA LIMITED, then, in case of any discrepancies or inconsistencies, the terms and conditions of such individual Agreement shall prevail over the present Agreement.

1. DEFINITIONS

1.1. The “Agreement” shall mean the right to a configuration of the Software which shall be adjusted by Competera upon the Customer’s individual requests and options. The Software configuration shall be agreed upon by Parties on an individual basis and shall be specified in the Order form.

1.2. The “Effective date” shall mean the date on which the Parties accept the terms of the present Agreement by signing the Order form. The Agreement shall enter into force between Parties on the date of signing by Parties the respective Order form.

1.3. The “Order form” shall mean a legally binding document, which defines the configuration of the Software adjusted by Competera upon Customer’s individual requests and options including fees.

1.4. The “Reporting period” shall mean the period of one calendar month.

1.5. The “SaaS Services” refer to the specific Competera’s internet-accessible service identified in the Order form that provides use of Competera’s identity/access management Software that is hosted by Competera or its services provider and made available to Customer over a network on a term-use basis.

1.6. The “Software” shall mean the software suite, namely: fragments of resource or object code readable by the computer in order to bring the computer into action, associated under the trademark COMPETERA™ including the Software which is available via Competera’s official website: www.competera.net to which Customer is provided access as part of the Service, including any updates or new versions.

1.7. The “Territory” shall mean the territory of the country for which the Agreement is granted. The Territory shall be agreed by Parties on individual basis and shall be specified in the Order Form.

2. TERMS AND CONDITIONS

2.1. Subject to the terms of this Agreement, Competera grants to Customer a non-exclusive, non-transferable, non-sublicensable right to use the Software and SaaS Services solely for your internal business operations subject to the terms of this Agreement and the Order form.

2.2. The Software configuration including the number of Customer users shall be agreed by Parties in the Order form.

2.3. Customer is entitled only to those rights with respect to the Software that are expressly granted by this Agreement and the Order form.

2.4. The Customer is obliged to provide the Competera with the list of products for monitoring and/or other requested information necessary for the adaptation of the Software according to the Software configuration in format and within the term agreed by the Parties.

2.5. Customer acknowledges that this Agreement is a services agreement and Competera will not be delivering copies of the Software to Customer as part of the SaaS Services.

3. RESTRICTIONS

3.1. CUSTOMER MAY NOT:

3.2. CUSTOMER RESPONSIBILITIES:

4. SUPPORT AND UPGRADE

4.1. Support and Upgrade grant to Customer the rights to use the latest version of Software, including major version releases, and to the Software support service during a subscription period in accordance to SaaS Services pursuant to the Order form.

4.2. Unless the Customer has entered into the individual Service Level Agreement with the Competera, by the present Agreement the Customer is granted the standard level of support and upgrade provided under the Competera’s Service Level Policy then in effect. Throughout Customer’s subscription term and subject to compliance with terms of Agreement and Order forms the Competera shall provide to Customer the standard level of support and upgrade as specified in Competera’s Service Level Policy, which is integral part of the present Agreement and can be found at www.competera.net/sla.

5. ORDERS AND PAYMENT

5.1. Order form. Customer shall order SaaS Services pursuant to the Order form. All services acquired by Customer shall be governed by this SaaS Agreement and the applicable Order form. In the event of a conflict between the terms of the Order form and this SaaS Agreement, the terms of the Order form shall take precedence.

5.2. Invoicing and Payment. Unless otherwise provided in the Order form, Competera shall invoice Customer for all fees on the Order form effective date. Customer shall pay all undisputed invoices within 7 days after Customer receives the invoice. Except as expressly provided otherwise, fees are non-refundable.

5.3. The amount of Payment shall be agreed by the Parties in the Order form. The Customer shall cover all banks and correspondent banks’ commissions at its own costs on top of the License fee.

5.4. The payment of Setup fee shall be a compulsory condition for granting license rights stipulated in this Agreement. Setup fee shall be agreed by the Parties in the Order form as a fixed amount that shall be paid by Customer as 100 % prepayment during five (5) days from the date specified in the invoice.

5.5. Subscription fee shall be calculated depending on the volume of the Software used by Customer for the reporting month and shall be specified in the Order form.

5.6. The Subscription fee shall be paid. Unless otherwise agreed by the Parties in the Order form, the Subscription fee for the Reporting month shall be paid to the Competera as 100% prepayment during five (5) days from the date specified in the invoice. If the last due payment day is a holiday or day off, the transfer shall be executed at the next working day. The day of incoming payment in the bank of the Competera is deemed as the day of the License fee payment.

5.7. Competera may suspend to Customer the access to the Software, if the Customer fails to make a Subscription fee payment timely or comply with other payments to Competera. Customer’s data may be saved for ninety (90) days from the date of suspension. If Customer fails to make a Subscription fee payment or comply with other payments to Competera during (90) days from the date of suspension, all Customer’s data, necessary for SaaS services, would be deleted.

6. PROPRIETARY RIGHTS AND CONFIDENTIALITY

6.1. Competera retains all rights, title and interest to the Software, SaaS services and all related intellectual property and proprietary rights. The Software is protected by applicable copyright, trade secret, industrial and other intellectual property laws. Customer may not remove any product identification, copyright, trademark or other notice from the Software. Competera reserves any rights not expressly granted to Customer.

6.2. By contrast, all data and information developed by Customer, when the Software is lawfully exploited under the license terms and conditions, shall belong to Customer. Competera may not disclose, use or transfer them to any third party without prior written approval by Customer.

6.3. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; and (ii) as to Competera, and its licensors, the Software. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; (d) is independently developed by or for Recipient without use of the Confidential Information; or (e) is required to be disclosed by applicable law or court order. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement.

6.4. Competera reserves the right to mention/specify the Customer’s name (logo and/or Customer’s Trademark) to the third parties while promoting the Software on the market without disclosing confidential information.

6.5. All personal data transferred by Customer for the purpose of enjoying license rights are confidential. Competera undertakes to provide the same level of protection of personal data received from Customer within the frame of this Agreement, as provided to its own personal databases.

6.6. Customer hereby undertakes to prevent any illegal use of the personal account by the third parties and shall undertake not to transfer Customer’s personal account login and password to any third parties.

6.7. Customer acknowledges that any misuse or threatened misuse of the Software will cause immediately irreparable harm to Competera for which there is no adequate remedy at law. Accordingly, Customer agrees that Competera IS entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of such breach or threatened breach.

7. APPLICABLE LAW

7.1. This Agreement shall be governed by the laws of Cyprus.

7.2. The Parties shall resolve all disputes arising during the validity of this Agreement by way of negotiations. In case of the impossibility to resolve a dispute in a peaceful manner all disputes of any nature that may arise in relation to this Agreement shall be referred to arbitration by a single Arbitrator in accordance with the provisions of the Arbitration Law of Cyprus, Cap 4. The Arbitrator will be proposed by the Arbitration Service of the Cyprus Chamber of Commerce and Industry and must be approved by the Parties. In case of disagreement between the Parties on the proposed Arbitrator, the Arbitrator will be appointed in accordance with the provisions of the Arbitration Law of Cyprus, Cap 4. English shall be the language of the proceedings. The arbitral award shall be final and binding upon the Parties.

8. WARRANTY

8.1. To the extent permitted by applicable law, the Software is provided to Customer “AS IS” without warranty, either express or implied, that Software usage will be uninterrupted and that all errors have been or can be eliminated from the Software. Competera’s sole liability (and Customer’s exclusive remedy) for any breach of this warranty shall be, in Competera’s sole discretion, to use commercially reasonable efforts to provide Customer with an error correction or workaround which corrects the reported nonconformity, to provide Software upgrades with corrected errors for the upcoming Software release or service pack or if Competera determines such remedies to be impracticable within a reasonable period of time, to terminate the Agreement and refund license fee paid for the period of nonconformity.

8.2. The limited warranty shall not apply to warranty claims arising out of or relating to: (a) use of the Software with hardware or software not required in the Software documentation; (b) to defects in the Software due to accident, abuse or improper use by Customer; or (c) to Software provided on a no charge or non-commercial trial use basis, if any.

9. LIMITS ON LIABILITY

9.1. LICENSOR IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME AND DAMAGE TO, OR LOSS OF USE OF DATA CONSIDERED AS INDIRECT LOSS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. LICENSOR’S TOTAL LIABILITY FOR DAMAGES OF ANY KIND IS LIMITED TO THE AMOUNT PAID FOR THE LICENSE TO THE APPLICABLE SOFTWARE GIVING RISE TO SUCH DAMAGES.

10. FORCE MAJEURE (CIRCUMSTANCES BEYOND PARTIES’ CONTROL)

10.1. Either Party shall not be held liable for non-performance or undue performance of the obligations under this Agreement, should such non-performance or undue performance be caused by such circumstances as a fire, flood, hostilities, acts of government and other circumstances beyond the control of Parties, interfering the performance of this Agreement.

10.2. Parties undertake to inform each other in writing about the circumstances beyond the Parties control as soon as the fact becomes known to the Party.

11. TERM AND TERMINATION OF THE AGREEMENT

11.1. This Agreement becomes effective from the day of signing the respective Order form by Parties and shall remain in force for the period specified in the Order form.

11.2. Competera reserves the right to suspend delivery of the SaaS Services, if:
a) Customer fails to make Setup fee payment; and/or
b) Customer fails to make a Subscription fee payment timely or comply with another term of this Agreement and or Order form within fourteen (14) days after receipt of written notice Customer does not remedy such failure. In this case the Agreement is deemed to be terminated in 14 (fourteen) days upon the written notice sent by the Competera to Customer counted from the day of sending.

11.3. The Agreement along with the Order form may be terminated unilaterally initiated by any Party without stating reasons by written notice to the other Party not later than 30 (thirty) days prior to the date of termination. The termination of the Order form shall automatically terminate the present Licence agreement.

11.4. Any early termination shall not relieve the Customer of his obligations to pay the License fees arising during the term of this Agreement.

11.5. Suspension for Ongoing Harm. Competera reserves the right to suspend delivery of the SaaS Services if Competera reasonably concludes that Customer use of the SaaS Services is causing immediate and ongoing harm to Competera or others. In the extraordinary case that Competera must suspend delivery of the SaaS Services, Competera shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Competera shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 6.4. Nothing in this Section will limit Competera’s rights under Section 11.6. below.

11.6. Effect of Termination.

12. INDEMNIFICATION

12.1. Indemnification by Competera. If a third party makes a claim against Customer that the SaaS Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that Competera’s negligence or willful misconduct has caused bodily injury or death, Competera shall defend Customer and its directors, officers and employees against the claim at Competera’s expense and Competera shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Competera, to the extent arising from the claim. Competera shall have no liability for any claim based on (a) the information provided by Customer, (b) modification of the SaaS Services not authorized by Competera, or (c) use of the SaaS Services other than in accordance with this SaaS Agreement. Competera may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term.

12.2. Indemnification by Customer. If a third party makes a claim against Competera that the Customer infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend Competera and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.

12.3. Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

13. ENTIRE AGREEMENT

13.1. This Agreement along with Order form(s) duly signed by the Parties constitute the entire agreement between the Competera and the Customer and supersedes all prior and contemporaneous agreements, arrangements, negotiations and understandings between Parties, whether oral or written, relating to the subject matter hereof.

13.2. No failure by either Party hereto to exercise and any right hereunder in time shall be considered as a waiver thereof or shall not preclude exercising any right hereunder by that Party in future.

13.3. All the Order forms to this Agreement are integral part thereof if they are made in writing and signed by authorized representatives of the Parties and sealed (if any).

14. MISCELLANEOUS PROVISIONS

14.1. Headings are used in this Agreement exclusively for convenience and shall not affect the interpretation of the Agreement provisions.

14.2. In performing the SaaS Services, Competera will comply with the Competera Privacy Policy, which is available at https://competera.net/legal/privacy-policy and incorporated herein by reference. The Competera Privacy Policy is subject to change at Competera’s discretion; however, Competera policy changes will not result in a material reduction in the level of protection provided for Customer data during the period for which fees for the services have been paid. The services policies referenced in this SaaS Agreement specify our respective responsibilities for maintaining the security of Customer data in connection with the SaaS Services. Competera reserves the right to provide the SaaS Services from locations, and/or through use of subcontractors, worldwide.

PRIOR VERSIONS OF COMPETERA LICENCE AGREEMENT are available here.



Competera упрощает процесс планирования ассортимента и предоставляет мощный инструмент для конкурентной борьбы. Автоматизировав процесс сбора данных о конкурентах, можно существенно сократить трудозатраты, избежать ошибок и кроме того, получить точные и актуальные данные о рынке, которые станут основой выигрышных бизнес-решений.

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