1. Acceptance of Terms
Compete, Inc. ("Compete") provides access to this web site ("Site"), consulting and advisory services and the other services provided by Compete, either in whole or in part, through the Internet subject to your acceptance of this User Agreement ("Agreement"), which may be updated by Compete from time to time. By becoming a Visitor or User (as defined herein) of the Site or by accepting any consulting and advisory services or other services provided by Compete, you agree to be bound by the terms of this Agreement. This Agreement was last revised on July 20, 2001. You can review the most current version of this Agreement at any time at http://www.compete.com/terms_conditions. When using a particular Compete service you also may be subject to any posted guidelines, rules, terms of service, policies or other contractual provision as noted. In the event of a conflict between any other agreement, rule, or terms of service and this Agreement, the provisions of this Agreement shall govern. If you have any questions about this Agreement, please contact Compete at info@compete.com before using this Site or availing yourself of the services provided by Compete.
2. Types of Visitors
Any person or entity (through its agents) accessing, browsing, or otherwise using the Site or using Services (as defined below), either manually or via an automated device or program, shall be deemed a "Visitor" under this Agreement. All Visitors are bound by the terms of this Agreement. All Visitors have access to the home page of the Site. A Visitor that becomes a registered User of the Site and holds an active password for the Site or an entity who executes an Insertion Order shall be deemed a "User". When this Agreement refers to Visitors, such term is deemed to include all Visitors who become Users. Only Users may, in accordance with the procedures and conditions set forth below and in the related Insertion Order, access Compete's Services (as defined below). Compete and any Visitor shall be deemed "Parties" to this Agreement.
3. Description of Site and Services
By registering or signing up for Compete's Services, Users may obtain access to Internet traffic data ("Data") that is sampled and aggregated by Compete. Compete, via agreements with Internet Service Providers ("ISPs") and Browser Companion Service Providers, collects data on online usage patterns and summarizes this data according to various categories. Browser Companion Service Providers are companies that provide end users with tools to help use, navigate, and shop while on the Internet or an Intranet. These tools can improve the User's experience or web performance. Users may obtain aggregated data regarding traffic to any number of Internet sites. Compete also may elect to offer Users other ancillary services such as news and other informative content through its Site or consulting or advisory services. These ancillary services, including consulting and advisory services, together with access to the Data shall be deemed "Services".
4. Conditions of Use and Membership
If a User is an individual, such User must be over the age of 18 and possess the capacity to enter into binding contracts. In order to become a User, you must register and provide to Compete certain personally identifiable information, including but not limited to, company name, name of contact person, email address, password and phone number (collectively "Registration Information"). Providing false Registration Information constitutes a material breach of the Agreement and may result in Compete terminating your use of the Site and the Services.
5. Acceptable and Lawful Use of Site
Any Registration Information, computer information, or other information a User or Visitor provides to Compete in connection with the use of the Site or the Services: (a) shall not be false, inaccurate or misleading; (b) shall not be obscene or indecent; (c) shall not contain any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (d) shall not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (e) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; and (f) shall not create liability for Compete or cause us to lose (in whole or in part) the services of our ISPs or other suppliers. Visitors shall comply with all applicable laws, statutes, ordinances and regulations regarding use of the Site and the Services.
6. License Granted
Visitor grants Compete a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to exercise the copyright and publicity rights Visitor has in Registration Information and other information provided to Compete by Visitor, in any media whether now known or hereafter to become known. Compete will only use Registration Information and such other information provided to Compete in accordance with its Privacy Policy located at http://www.compete.com/privacy. User grants Compete a non-exclusive, worldwide, perpetual, irrevocable, royalty-free right to use User's Internet home page and the name, logo, and trademarks contained therein to display and market the Site to third parties.
7. No Endorsement of Content
Compete makes no representations or endorsements regarding the quality, accuracy, reliability or condition of any Data or other content posted on the Site or provided through its delivery of the Services. Compete does not control the quality, safety, truth or accuracy of the Data or content and makes no representation thereof. Compete shall have no obligation to review the content provided on the Site or provided through its delivery of the Services. The Site and any written materials provided in connection with the Services may contain hyperlinks or references to third party web sites outside of the Site. Compete makes no representations or endorsements regarding the quality, accuracy, reliability or condition of such hyperlinks or references or of any content posted on those third party web sites. Compete has no control over the content of any hyperlinked or referenced third party web sites and shall have no obligation to review those sites' content.
8. Relationship
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement between Visitors, Users and Compete. This Agreement is between the Visitors, Users and Compete and is not intended to be for the benefit of any third party.
9. Security and Passwords
Compete utilizes secure servers to protect Registration Information and passwords. Users shall not disclose their passwords or Registration Information to third parties. Users are responsible for all activities that occur under their Registration Information and password. User agrees to immediately notify Compete in writing of any unauthorized use of User's account. The User is solely responsible for ensuring that each password is utilized only by the authorized representative of the User to whom it is assigned. If an individual representative of a User shall no longer be authorized to use a password, it is the User's responsibility to notify Compete of such occurrence. Compete reserves the right to change User's password.
10. Privacy Policy; Email
Visitors agree that they have read and understand the terms of Compete's Privacy Policy at http://www.compete.com/privacy, which is hereby incorporated into this Agreement by reference. Visitors acknowledge that the Site may link to other sites not controlled by Compete and that the collection of a Visitor's data by these sites is outside the scope of Compete's control. Compete reserves the right to monitor a User's use of the Site. Users acknowledge that by becoming a User, they consent to receipt of certain emails from Compete in connection with the use of the Site and Services.
11. System Integrity
Visitors may not use any device, software or routine to interfere with the
proper working of the Site. Visitors may not use any method to intercept or
expropriate any system data or information from the Site without the express
written permission of Compete. Visitors may not take any action that imposes an
unreasonable burden upon the infrastructure used to support the efficient
operation of the Site including but not limited to unsolicited email (i.e., "Spam").
Visitors shall not use any robot, spider, other automatic device, or manual
process to monitor or copy our web pages or the content contained herein without
the prior expressed written permission of Compete. Information on the Site is
frequently updated and is proprietary or is licensed to Compete.
Visitors agree that they will not copy, reproduce, alter, modify, create
derivative works, or publicly display any content from our web site without the
prior express written permission of Compete and the appropriate third party.
12. System Outages
Compete periodically schedules system downtime for maintenance and other purposes. Unplanned system outages also may occur. Compete shall have no liability whatsoever for the resulting unavailability of the Site or for any loss of data or transactions caused by planned or unplanned system outages or the resultant delay, misdelivery, nondelivery of Data or other information caused by such system outages, or any third party acts or any other outages of web host providers or the Internet infrastructure and network external to the Site.
13. No Warranty
COMPETE PROVIDES OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR
CONDITION, EXPRESS, IMPLIED OR STATUTORY. COMPETE AND OUR SUPPLIERS AND BUSINESS
ASSOCIATES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATIONAL
CONTENT AND NON-INFRINGEMENT. VISITOR ASSUMES TOTAL RESPONSIBILITY AND RISK FOR
USE OF THIS SITE, DATA, ADVICE AND RECOMMENDATIONS RECEIVED FROM COMPETE IN
CONNECTION WITH THE PROVISION OF SERVICES, SITE-RELATED AND OTHER SERVICES, AND
HYPERLINKED WEB SITES. Some states do not allow the disclaimer of implied
warranties, so the foregoing disclaimer may not apply to you.
COMPETE MAKES NO WARRANTY THAT THE SITE OR DATA WILL MEET VISITORS' REQUIREMENTS,
OR THAT DATA WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, NOR DOES
COMPETE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF
THE DATA OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED
THROUGH THE SITE OR IN CONNECTION WITH THE PROVISION OF SERVICES OR THAT ANY
DEFECTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY A USER FROM COMPETE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE
HEREIN.
14. Other Limitations of Liability
IN NO EVENT WHATSOEVER SHALL COMPETE OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME (HOWEVER ARISING IN TORT, CONTRACT, OR OTHERWISE), REGARDLESS OF OUR NEGLIGENCE OR WHETHER WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL COMPETE'S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER OF ANY FEES PAID TO US FOR USE OF THE SITE BY THE VISITOR OR USER, OR $500. COMPETE NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SITE, THE SERVICES AND THE DATA, ADVICE AND RECOMMENDATIONS. The limitations of liability provided in this Agreement inure to the benefit of Compete, our affiliates and to all of our respective officers, directors, employees, attorneys and agents.
15. Indemnification
Visitor and User agree to indemnify, defend and hold harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys' fees) resulting from Visitor's or User's (directly or through its agents) use of the Site or Services provided hereunder by Compete; Visitor's or User's breach of any provision of this Agreement or any intentional wrongdoing by Visitor. Any such indemnification shall be conditioned on Compete's: (a) promptly notifying the indemnifying party in writing of any such claim, demand, action, cost, liability, loss or threat of any thereof; (b) cooperating with the indemnifying party in the defense or settlement thereof; and (c) allowing the indemnifying party to control such defense or settlement. Compete shall be entitled to participate in such defense at its own cost and expense. Compete reserves the right to report any wrongdoing, if we become aware of it, to the applicable government agencies or otherwise.
16. Term and Termination
This Agreement is effective until terminated by Compete, at any time without notice. The restrictions imposed upon Visitors and Users with respect to the use of the Site and the Services (including data and content), and the disclaimers and limitations of liabilities set forth in these Terms and Conditions, shall survive. Compete may immediately issue a warning, suspend or terminate a Visitor's access to the Site and/or User status for breach of this Agreement (or any agreement incorporated by reference hereto), or if we are unable to verify or authenticate any information you provide to us, or for any other reason in our discretion. You may terminate your Visitor or User status and password by providing thirty (30) days notice to us at support@compete.com or Compete, Inc., 4 Copley Place, Suite 700, Boston MA. 02116 (617-933-5600). In no event shall Compete be required to issue any refund of Fees or payment to User upon their termination of their User status.
17. Intellectual Property
A. Generally
All pages within the Site and the Data, advice and recommendations provided
through the Site and in connection with the Services are the property of Compete.
The Site and Data are protected by federal and international copyright and
trademark laws. No portion of the materials on the Site pages or provided in
connection with the Services may be reprinted, republished, modified, or
distributed in any form without the express written permission of Compete. A
Visitor may not, and this Agreement does not give a Visitor permission to,
reproduce, reverse engineer, decompile, disassemble, modify or create derivative
works with respect to the Site and Data. Certain content may be licensed from
third parties and all such third party content and all intellectual property
rights related to the content belong to the respective third parties. A Visitor
may not remove any copyright, trademark or other intellectual property or
proprietary notice or legend contained on the Site or its content. Any rights
not expressly granted by this Agreement with respect to the Site and Data are
reserved by Compete.
Notwithstanding the foregoing, Users are granted a nonexclusive, revocable, limited license to reproduce the Data obtained through the Site or in connection with the Services for internal business purposes only, and subject to the additional limitation that User's business purpose is not in competition with Compete's business. This license may not be sublicensed by Users.
The Data is confidential information of Compete. Users shall not publish, display, disclose, rent, lease, loan, sell, resell, transfer or distribute the Data or Services to third parties without Compete's written permission. Visitors shall not match the Data with personally identifiable information or any other information that would enable someone to in any way identify, contact or directly market to any individual whose Internet traffic data is included in the Data. Users shall not modify the Data or Services or create derivative works based on the Data and Services obtained from Compete without Compete's written permission. Users may not use Data obtained from Compete in any venture that competes with Compete. Visitors are granted a limited license to print one copy of this Agreement for their own records.
B.Trademark Notice
The Compete logo is a trademark of Compete. Any other trademarks and / or logos
used on this Site or provided in connection with the Services are the trademarks,
service marks or logos of their respective owners. Nothing in this Agreement
shall confer any right of ownership of any of the trademarks in Visitor. Further,
nothing in this Site shall be construed as granting, by implication, estoppel or
otherwise any license or right to use any trademark used or displayed on this
Site, without the express written permission of Compete or the trademark owner.
C. Policy Regarding Copyright Infringement and Designated Agent
Compete's policy regarding copyright infringement and Compete's designated agent
for receipt of copyright infringement claims pursuant to the Digital Millennium
Copyright Act is incorporated herein and can be found at http://lcweb.loc.gov/copyright/onlinesp/list/c_agents.html.
D. Linking to the Site
Unless a Visitor has a written agreement in effect with Compete which states
otherwise, Visitor may only provide a hyperlink to the Site on another web site,
if Visitor or User complies with all of the following: (a) the link must be a
text-only link clearly marked "Compete.com" or "www.Compete.com"; (b) the link
must "point" to the URL http://www.compete.com
and not to other pages within the Site; (c) the link, when activated by a
Visitor, must display the Site full-screen and not within a "frame" on the
linking web site; and (d) the appearance, position and other aspects of the link
must not be such as to damage or dilute the goodwill associated with Compete's
name and trademarks or create the false appearance Compete is associated with or
sponsors the linking web site. Compete reserves the right to revoke its consent
to any link at any time in its sole discretion.
E. Government End Users
This subsection 17(E) applies only if the Services and/or Data are acquired by
or on behalf of a department or agency of the U.S. Government. The Services and
Data are a trade secret of Compete for all purposes under the U.S. Freedom of
Information Act. The Services and Data are commercial items or processes
developed wholly at private expense and are provided with the limited rights
described in the DOD Supplement to the Federal Acquisition Regulation ("DFARS")
at section 227.7102-2(a) ("Limited Rights"). More specifically, Limited Rights
means that the U.S. Government may use, modify, reproduce, display, perform, or
disclose any Services and Data acquired from the Site only within the Government.
The Services and Data may not be released, or disclosed to, or used by, third
parties without Compete's written permission. Further, the use, duplication, or
disclosure is subject to restrictions as set forth in subparagraph (b)(2) of the
"Technical Data — Commercial Items (Nov. 1995)" clause at DFARS 252.227-7015.
Government personnel using the Services or Data, other than under a DOD contract,
agreed that use of the Services and Data are subject to restrictions that are
the same as, or similar to the Limited Rights specified above.
18. Notices
Notices to User and Compete shall be by email or certified mail, return receipt requested. Notices to Compete shall be sent to support@compete.com or, if by certified mail, to Compete, Inc., 4 Copley Place, Suite 700, Boston MA 02116. Notices to User shall be sent to the email address contained in User's Registration Information. User is responsible for keeping User's Registration Information current. Compete shall not be responsible for User's failure to receive notice if User's Registration Information is incomplete, not current, or otherwise inaccurate. Notice sent by email shall be deemed given twelve (12) hours after email is sent. Users can modify email addresses and passwords previously provided by accessing http://www.compete.com/password.
19. Electronic Signatures
Visitors and Compete agree that any document or record, including this Agreement, which is transmitted or received by electronic transmission by either party shall be treated in all manner and respects as an original signed document where sufficient indicia of acceptance by the respective party exists. Accessing the Site constitutes acceptance of this Agreement by the Visitor. The Visitor and Compete further agree that by entering into this Agreement they shall agree to accept electronic signatures or other reasonable electronic indicia as effective forms of acceptances. Such indicia of acceptance shall be considered for these purposes as an original signature and any such electronic transmission shall be considered to have the same binding legal effect as an original signed document. Visitor agrees that Visitor shall not raise electronic transmission or electronic signatures as a defense to this Agreement or the binding nature thereof or in any matters related to the Agreement, and agrees to waive such defense.
20. Governing Law and Choice of Forum
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, exclusive of its choice of law rules and matters affecting copyrights, trademarks and patents under U.S. federal law. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys' fees. Any suit relating to this Agreement, the Services or the Site shall be brought exclusively in the federal or state courts of Massachusetts, and both Parties consent to the jurisdiction thereof.
21. Severability
In the event that one or more portions of this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such validity, illegality or unenforcability shall not affect any other provision contained in this Agreement.
22. Headings
The headings used throughout this Agreement are solely for the convenience of reference and are not to be used as an aid in the interpretation of this Agreement.
23. No Waiver
The delay or failure of Visitor or Compete, at any time or times, to require performance of any provision hereof shall in no manner affect Visitor or Compete's right at a later time to enforce such provision. No delay or failure of Visitor's or Compete in exercising any right hereunder shall constitute a waiver of such right or any other rights hereunder.
24. Entire Agreement, Updates and Modifications
This Agreement and any documents expressly incorporated by reference, including but not limited to the Privacy Policy and Insertion Order, constitute the entire agreement between Compete and you, the Visitor, pertaining to the subject matter hereof.
In its sole discretion, Compete may unilaterally amend or modify this Agreement or any other documents referenced herein at any time by posting on the Site. Any amended or modified terms will be effective upon posting. Continued use of the service constitutes acceptance of any modified terms and conditions. Visitor shall regularly review the Agreement that is posted at http://www.compete.com/terms_conditions. If you have any questions about the Agreement, contact us at info@compete.com.
25. Assignment
Visitors may not assign their rights or delegate their responsibilities hereunder without the express written permission of Compete. Compete may, at any time, assign its rights or delegate its obligations hereunder without notice to Visitor.
26. Third Party Beneficiary Rights
No person not a Party to this Agreement is intended to be a beneficiary of this Agreement, and no person not a Party to this Agreement shall have any right to enforce any term of this Agreement.
27. Inquiries
The Site, Data, and any additional content are offered by Compete. Compete is located at 4 Copley Place, Suite 700, Boston MA. 02116. Anyone wishing a copy of this Agreement may obtain such by writing Compete, accessing the Site, or emailing info@compete.com. Questions concerning Compete, the Site, the Services, or any aspect of this Agreement should be directed to Compete.
28. Payment of Fees
Users agree to pay Fees as specified in the Insertion Order which is hereby incorporated into this Agreement by reference. User agrees to pay (in U.S. Dollars) all Fees and applicable taxes to Compete within thirty (30) days of the invoice date ("Due Date"). If full payment is not received by the Due Date, Compete may, in addition to other remedies, impose a 1.5% (or, if lesser, the maximum amount permitted by law) per month late charge. User agrees to pay Compete for reasonable collection costs arising from Compete's efforts to collect any unpaid balance due from User. The prevailing Party in any dispute regarding the collection of Fees shall be entitled to recover its costs, including reasonable attorneys' fees.