Terms of Service
PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT” OR “TERMS”) CAREFULLY BEFORE ORDERING, ACCESSING OR USING THE SERVICES OFFERED BY COBALT SOFTWARE, INC. (“COBALT,” “WE,” “US,” “OUR”). BY REGISTERING FOR OUR SERVICES, ACCEPTING A SUBSCRIPTION PLAN, VISITING THE WEBSITE, OR USING ANY SUCH SERVICES OR THE WEBSITE IN ANY MANNER, YOU OR THE ENTITY OR COMPANY YOU REPRESENT (“YOU”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, NOTWITHSTANDING THE SUBSCRIPTION PLAN, WHICH FORMS PART OF THIS AGREEMENT. IF YOU ARE ACCESSING THE WEBSITE OR ORDERING, ACCESSING OR USING ANY OF THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY OR COMPANY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IN ADDITION, THE SERVICES ARE AVAILABLE ONLY TO INDIVIDUALS WHO ARE AT LEAST 18 YEARS OLD, AND THEREFORE, IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD. THESE TERMS CONTAIN, AMONG OTHER THINGS, A MANDATORY ARBITRATION CLAUSE AND A CLASS ACTION WAIVER AND BY USING THE WEBSITE OR ANY SERVICES, YOU EXPRESSLY WAIVE YOUR RIGHT TO BRING CLAIMS OUTSIDE OF ARBITRATION, ANY CLASS ACTION CLAIM, AND ANY TRIAL BY JURY. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE WEBSITE OR ANY SERVICES. IN THE EVENT OF A CONFLICT BETWEEN THESE TERMS AND THE SUBSCRIPTION PLAN, THESE TERMS SHALL GOVERN, UNLESS EXPRESSLY STATED OTHERWISE.
1. WEBSITE AND SERVICES.
Cobalt owns and operates the website www.cobalt.pe and app.cobaltgp.com (collectively, the “Website”). The Website, together with the platform, solutions, products, and services (including, without limitation, professional services), as described on or offered through our Website or as Cobalt may offer to you in a separate document are collectively referred to as the “Services”. Use of the Services is solely for your own internal use and shall not be used in any manner inconsistent with the Terms or the applicable Subscription Plan.
Except as expressly provided herein or in any applicable Subscription Plan, individuals (whether acting on behalf of an entity) who are authorized by both you and Cobalt, and who have been supplied user identifications and passwords by Cobalt through you or by Cobalt directly, may gain access to or use Services on your behalf and only as directed by you, provided that it is not inconsistent with the terms and conditions of use set forth herein (“Authorized Users”). Authorized Users are limited to your employees, contractors and agents who have a valid business relationship, as evidenced by appropriate documentation (whether by email address or other means) with your entity. You agree that you shall be responsible and liable for any breaches of these Terms by any of your Authorized Users. Your access and use of the Services is governed by these Terms and all other terms and conditions that may be set forth in the applicable Subscription Plan (defined below).
Prior to your access and use of the Services, Cobalt will provide you with a sales quotation, proposal, order form, sales confirmation or other similar writing that describes the specific Services, the term and prices offered to you by Cobalt, whichever is most current (the “Subscription Plan”). Your access and use of the Services is conditioned on your acceptance of the Subscription Plan.
Unless as otherwise specified in the Subscription Plan, you will be deemed to have accepted the Subscription Plan upon the earlier of: (i) your execution of the Subscription Plan, (ii) your payment of fees upon receipt of the Subscription Plan or (iii) your use of or access to the Services. Unless expressly stated otherwise in a Subscription Plan signed by both Parties, in the event of a conflict between this Agreement and a Subscription Plan, this Agreement will control.
You may choose to receive and use certain Personal Data of individuals as part of the Services. Personal Data includes information such as names, email addresses, employment information (such as role and firm name), business telephone numbers, business addresses, certain information publicly displayed on social media profiles (such as LinkedIn), and other information that may be publicly available (such as through governmental records or databases).To the extent that the Services under your Subscription Plan include Personal Data, and to the extent GDPR applies to the Processing of Personal Data, Section 16 shall apply. All defined terms used but not defined in Section 16 of these Terms shall have the meanings set forth in the GDPR. “GDPR” means EU Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016.
2. CHANGES TO SERVICES.
Cobalt may update, change, suspend or discontinue any of the Services, in whole or in part, at any time. We may also introduce new features or impose limits on certain features or restrict access to parts or all of the Services. Cobalt will try to give you notice when we make a material change to the Services that would adversely affect you. Notices may be communicated to you via email, the Website, or any other means.
3. CHANGES TO THE TERMS.
Cobalt is constantly trying to improve our Services, so these Terms may need to change along with our Services.
Cobalt reserves the right, in its sole discretion, to change the Terms at any time, but if we do, we will post a notice on the Website, send you an email to your email address in Cobalt’s records, or notify you by some other means. You are responsible for reviewing any changes. Changes to the Terms will not apply retroactively, unless such changes are made in order for Cobalt to comply with law, rule, or applicable regulation. Further, changes made for legal reasons will be effective immediately. Your continued use of the Services following such notification constitutes your affirmative acceptance of the terms and conditions of these Terms as modified and your agreement to abide and be bound by the Terms, as amended.
4. WEBSITE CONTENT AND DATA.
The content available on or through the Website, such as, but not limited to, articles, white papers, help content, and blog posts (collectively, “Content”), is owned by Cobalt or Cobalt’s licensors and are intended to be used by you solely for your own internal use for your own internal benefit, and for no other purpose, and in accordance with these Terms. For the avoidance of doubt, Content does not include Customer Data (defined below).
Content is protected by copyright and/or other intellectual property laws. You shall abide by all copyright notices, trademark rules, and restrictions contained in any Content, and, unless otherwise expressly permitted these Terms, shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
If you link to the Website, Cobalt may revoke your right to so link at any time, at Cobalt’s sole discretion. Cobalt reserves the right to require prior written consent before linking to the Website.
We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing; to review our complete Copyright Dispute Policy and learn how to report potentially infringing content, visit: https://www.cobalt.pe/copyright-dispute-policy/
B. Cobalt Data.
Cobalt may provide to you data or datasets, such as market data, as part of your access and use of certain Services (collectively, “Cobalt Data”). Cobalt Data is owned by Cobalt or Cobalt’s licensors, and is intended to be used by you solely for your own internal use for your own internal benefit, and for no other purpose, and in accordance with these Terms and any other additional terms and conditions that may be set forth in the Subscription Plan. For the avoidance of doubt, Customer Data (defined below) is not used to generate Cobalt Data, and further, Cobalt Data does not include or incorporate Customer Data.
In addition to using Cobalt Data on or through the Cobalt platform, you may also download portions of Cobalt Data through Excel to a location or storage device under your exclusive control and only for your own use. Any and all Cobalt Data that has been downloaded to an Excel or similar file or to a location or storage device under your control must be destroyed or returned to Cobalt upon termination or expiration of the applicable Subscription Plan; provided, however, that the foregoing obligation to destroy or return shall exclude Reports (as defined below) that have already been generated which may include Cobalt Data.
As part of the Services, you may also use Cobalt Data to generate aggregate-level work product or reports about you or the entity of which you are an authorized representative (“Reports”). Subject to these Terms and any additional conditions in the Subscription Plan, such Reports generated using only Cobalt Data that is owned by Cobalt may not be displayed or published publicly without Cobalt’s prior written consent. For clarity, such Reports may be displayed or published internally, such as for the review of specific interested parties, like investors or potential investors, and internal business presentations within the organization. All such Reports displayed or published shall include a reasonably conspicuous notice providing credit to “Cobalt Software, Inc.” as the source of such Reports, or similar language reasonably acceptable to Cobalt.
Reports generated using Cobalt Data that includes certain index or other benchmark reporting data that Cobalt licenses from a third party licensors are only permitted to be used for your internal purposes and cannot be disclosed or published publicly because Cobalt’s license does not permit such disclosure or publication by you. If you wish to disclose or publish such reports outside of your internal use, you will be required to obtain your own separate license from the applicable third party licensor to use and display such index or other benchmark reporting data.
Under no circumstances will Cobalt be liable in any way for any Content or Cobalt Data, including, but not limited to, any errors or omissions in any Content or Cobalt Data or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services. You acknowledge that all Content and Cobalt Data used or accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. Cobalt reserves the right to remove any Content or Cobalt Data, in whole or in part, from the Services at any time, for any or no reason.
C. Customer Data.
In order for Cobalt to provide the Services to you, you will upload or submit to Cobalt certain information or data, such as your investment data and cash flow information and/or metrics or other data on your fund or portfolio companies (“Customer Data”). These Services may include, but are not limited to portfolio monitoring, cash flow analytics, and professional services. Customer retains all its right, title and interest in and to its Customer Data, including all intellectual property and proprietary rights therein.
You acknowledge and agree that by uploading or submitting Customer Data to Cobalt, including, without limitation, by transmitting Customer Data into your Cobalt account from or through a third party site or service that you have linked to your Cobalt account in order for Customer Data to be transferred to Cobalt, Cobalt hereby is and shall be granted a non-exclusive, worldwide, royalty free, perpetual, irrevocable, sub-licensable and transferable right to use, reproduce, reformat, modify, create and use derivative works based on, excerpt, translate, publish, broadcast, transmit, perform, upload, or display such Customer Data (including all related intellectual property rights) for the purpose of providing Services to you and for only that purpose, unless as otherwise agreed to by you and Cobalt by mutual written agreement. Cobalt will not make available Customer Data to other customers of the Services or to other third parties unless expressly directed by you through the Services or as otherwise permitted by these Terms or as required to comply with any applicable laws or regulations. For clarity, you may grant to certain Authorized Users use of or access to your Customer Data, and you may be granted access to receive certain Customer Data of others, including certain portfolio companies, through the Cobalt platform.
The Cobalt trademark, and all other trademarks, service marks, graphics and logos used in connection with the Website and/or Services are trademarks or registered trademarks of the Cobalt or Cobalt’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website and/or Services may be the trademarks of third parties.
E. Data Security.
Cobalt will use commercially reasonable efforts to safeguard your Customer Data in its possession from any (a) unauthorized disclosure, access, use or modification; or (b) misappropriation, theft, destruction, or loss.
F. Aggregate Data.
Additionally, you agree to grant and hereby grant to Cobalt limited access to your Customer Data, which includes usage-related metrics to what you have uploaded to the Cobalt platform (such as number of cash flows, number of portfolio metrics, number of portfolio companies, or total number of asset values), in order for Cobalt to provide the Services and to perform its obligations under this Agreement.
Cobalt may use the limited Customer Data shared by you in an aggregated form and may use such aggregated data to evaluate and improve the Services and otherwise for its internal business purposes only.
Cobalt will not use your Customer Data, whether de-identified or not, for creating benchmarks to be shared with or made public to third parties without your prior written consent.
If you subscribe to use the Services, you may give Cobalt access to your Confidential Information (as defined below) for the purpose providing the Services, performing any of its obligations under this Agreement, or as otherwise expressly directed by you, and you may access, obtain, or learn Confidential Information of Cobalt or its licensors in connection with your use of the Services or as otherwise set forth under this Agreement. “Confidential Information” means any financial, technical or business information or materials disclosed or made available by one party to the other that is marked or otherwise identified or designated as confidential or proprietary at the time of disclosure, or that should be reasonably understood to be confidential by nature of the information or the circumstances of disclosure.
Confidential Information shall not include, and the foregoing restrictions will not apply to, any information that (a) is or becomes generally available to the public without any action by, or involvement of the receiving party, or (b) was in its possession or known by it without restriction prior to receipt from the disclosing party, or (c) was rightfully disclosed to the receiving party without restriction by a third party, or (d) was independently developed without use of or reliance on or access to the disclosing party’s Confidential Information. Nothing in this Agreement will prevent either party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the receiving party gives the disclosing party reasonable prior notice of such disclosure to contest such order.
Cobalt agrees: (i) to use or reproduce Confidential Information only for the purpose providing the Services, performing any of its obligations under this Agreement, or as otherwise expressly directed by you, (ii) not to disclose to any third party any Confidential Information, except to employees, agents, or third party service providers with a need to know or that have a need to access Confidential Information to provide the Services, perform obligations under this Agreement, or as otherwise expressly directed by you, and (iii) to take reasonable precautions to protect against disclosure or unauthorized use of such Confidential Information. You agree: (i) to use or reproduce Confidential Information only as permitted under this Agreement or in connection with your use of the Services, or as otherwise expressly permitted by Cobalt, (ii) not to disclose to any third party any Confidential Information, except to employees, agents or third party service providers with a need to know or that have a need to access Confidential Information as permitted in the immediately foregoing subsection (i), and (iii) to take reasonable precautions to protect against disclosure or unauthorized use of such Confidential Information.
In any event, Cobalt may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes. You acknowledge that Cobalt does not wish to receive any Confidential Information from you that is not necessary for Cobalt to provide the Services or perform its obligations under this Agreement, and unless the parties specifically agree otherwise, Cobalt may reasonably presume that any unrelated information received from you is not Confidential Information.
Upon termination or expiration of this Agreement, you shall cease using the Services, and remove or purge your Confidential Information from your account prior to termination or expiration is effectuated. Additionally, you shall return, destroy or purge any Confidential Information of Cobalt in your possession.
5. OBLIGATIONS AND RESTRICTIONS.
A. Registration Information; Selection of Services.
You represent and warrant to Cobalt that: (i) all registration information you submit is accurate, complete and truthful; and (ii) you will maintain the accuracy of such information. You also certify that you take full responsibility for the selection and use of and access to the Services.
You shall obtain and operate all Systems (as defined below) needed to connect to, access or otherwise use the Services, and you shall provide all corresponding backup, recovery and maintenance services. You shall ensure that all Systems are compatible with the Services, and you shall maintain the integrity and security of your Systems (physical, electronic and otherwise). For the purposes of this Section, “Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by you.
C. Code of Conduct.
You represent, warrant and agree that you will not directly or indirectly, or permit any third party to, contribute any content or data or use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Cobalt’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity; (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vii) intends to obtain the password, account, or private information from any other user of the Services unless otherwise permitted through the Services; (viii) violates the security of any computer network, cracks passwords, or security encryption codes, or transfers or stores illegal material (including material that may be considered threatening or obscene); (ix) runs Maillist, Listserv, any form of auto-responder, or “spam” on the Services, or any processes that run or are activated while you are not logged on to the Website, or that otherwise interfere with the proper working of or place an unreasonable load on the Services’ infrastructure; (x) uses manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Website; (xi) decompiles, disassembles, reverse engineers, or otherwise attempts to obtain the source code of the Services; (xii) uses any of the Cobalt’s confidential information to create any software, documentation or service that is similar to any of the Services or any documentation provided in connection therewith; (xiii) modifies, translates, or otherwise creates derivative works of any part of the Services; (xiv) copies, licenses, sublicenses, sells, resells, encumbers, rents, leases, time-shares, distributes, transfers or otherwise uses or exploits or makes available any of the Services in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of the Cobalt; or (xv) is not authorized by your Subscription Plan. In addition, you agree to use best efforts to ensure that any information you provide to Cobalt, including as part of Customer Data, is accurate.
D. Restrictions on Access.
Cobalt may impose limits on certain features and Services or restrict or suspend your access to parts or all of its Services at any time if it reasonably suspects that you have breached any of the terms, conditions or restrictions set forth in Section 5.C (Code of Conduct). Cobalt shall provide notice of any such limits, restrictions or suspensions by providing notice to your email address in Cobalt’s records.
6. LIMITED WARRANTY AND DISCLAIMERS.
A. Limited Warranty.
Cobalt warrants that it will use commercially reasonable efforts to ensure that the Services are available 24 hours a day, seven days a week. Notwithstanding the foregoing, the Services may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Cobalt to repair, maintain or upgrade the Services, or for causes beyond Cobalt’s reasonable control, or other software or service issues that may be referred to Cobalt support.
B. Warranty Disclaimer.
The Website and Services, including, without limitation, any and all Content and Cobalt Data, provided by Cobalt are provided for informational use only and do not constitute and should not be construed as: (i) a solicitation or offer; (ii) a recommendation to acquire or dispose of any investment or to engage in any other transaction; or (iii) advice or recommendations of any nature whatsoever, including but not limited to investment or legal advice. For the avoidance of doubt, Cobalt in no way serves as a placement agent and does not serve to assist any party in raising or acquiring financing.
Cobalt has no special relationship with or fiduciary duty to you. You acknowledge that Cobalt has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Cobalt from all liability for you having acquired or not acquired Content through the Services. Cobalt makes no representations or warranties concerning any Content contained in or accessed through the Services, including content available on third party websites that may be accessed through the Services, and Cobalt will not be responsible or liable for the accuracy, timeliness, reliability, completeness, copyright compliance, legality or decency of material contained in or accessed through the Services. Cobalt does not guarantee the identity of any other users with whom you may interact in the course of using the Services or the authenticity of any data which users may provide about themselves.
WITHOUT LIMITING ANY OF THE FOREGOING DISCLAIMERS PROVIDED IN THIS SECTION 6, THE WEBSITE, SERVICES, CONTENT, COBALT DATA AND ANY OTHER RELATED MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE RESULTS OF USING THE SERVICES OR COBALT DATA WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. REGISTRATION AND SECURITY.
As a condition to using some aspects of the Services, you may be required to register with Cobalt and select a password and user name (“Cobalt User ID”). Cobalt reserves the right to refuse registration of or cancel a Cobalt User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password, and you shall be solely responsible for all use of the Services through your user name and password. You agree to immediately notify Cobalt of any unauthorized use of any of the Services of which you become aware.
You will indemnify, defend and hold harmless Cobalt, its parents, subsidiaries, affiliates, and each of its respective employees, contractors, directors, officers, and representatives from all liabilities, claims, and expenses (including, without limitation, all damages, settlements, costs and reasonable attorneys’ fees) made by a third party related to or arising out of your unauthorized access to or use or misuse of the Services, Cobalt Data or Content, reliance on any Cobalt Data or Content provided through the Services, use or disclosure of any of your Customer Data in accordance with these Terms, violation of these Terms, or the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Cobalt reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
10. LIMITATION OF LIABILITY.
A. Limitation of Liability for Services.
EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, ANY BREACHES OF SECTION 5.C (CODE OF CONDUCT) OR SECTION 11 (FEES AND PAYMENT FOR SERVICES), OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE COBALT DATA, WEBSITE OR ANY OTHER SERVICES OR CONTENT OR THE SUBJECT MATTER OF THESE TERMS, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE AMOUNTS PAID TO COBALT HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (II) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (III) FOR DATA LOSS, LOST PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND COBALT’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
B. Limitation of Liability for Website Only.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL COBALT OR ITS LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE COBALT DATA, WEBSITE OR ANY OTHER SERVICES OR CONTENT OR THE SUBJECT MATTER OF THESE TERMS, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, (I) FOR ANY AMOUNT IN EXCESS OF $100; (II) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (III) FOR DATA LOSS, LOST PROFITS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND COBALT’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
11. FEES AND PAYMENT FOR SERVICES.
You agree to pay Cobalt the fees, in amounts and at the times specified in your Subscription Plan. Unless as otherwise specified in your Subscription Plan, all amounts due shall be paid in full within 15 days after the date printed on the invoice. You must provide Cobalt with, and ensure that Cobalt always has, accurate and complete billing information, including, as applicable, name, address, and telephone number of the person who is to receive the invoice. All payments are nonrefundable. Any upgrades will be prorated for the remainder of the term as calculated at the next billing date. Cobalt reserves the right to terminate the Subscription Plan and your access and use of the Services in accordance with Section 15 hereto if you do not pay the fees owed under the Subscription Plan by the applicable due date. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon Cobalt’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
You agree that Cobalt may use a third-party payment processor (the “Payment Processor”) to bill you through a payment account linked to your account on the Services (your “Billing Account”) for use of the Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to use Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Services in accordance with the applicable payment terms, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Cobalt will use commercially reasonable efforts to provide you with support and maintenance for the Services in accordance with its standard practices (as may be amended from time to time). You agree that Cobalt will have the right to charge, in accordance with its then current policies, for any support services resulting from problems, errors or inquiries relating to systems or any other network, equipment, service or software not owned, controlled or procured by Cobalt. Cobalt will notify you prior to charging for any additional support services. Cobalt shall have no obligation to provide updates (for example, patches or revisions to the Services), except that Cobalt will provide you with any update that it makes generally available without charge to its similar customers. Cobalt will not be responsible or liable for any failure in the Services resulting from or attributable to (i) your Systems, (ii) network, telecommunications or other service or equipment failures outside of Cobalt’s facilities, (iii) your or any third party’s products, services, negligence, acts or omissions, (iv) any force majeure or cause beyond Cobalt’s reasonable control, (v) scheduled maintenance or (vi) unauthorized access, breach of firewalls or other hacking by third parties.
13. INTERACTION WITH THIRD PARTIES.
The Website or the Services may contain links to third party websites or services (“Third Party Websites”) that are not owned or controlled by Cobalt. When you access Third Party Websites, you do so at your own risk. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any Third Party Websites relating to your use of the Website or Services and that you will act in accordance with those policies, in addition to your obligations under these Terms. Cobalt has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any Third Party Websites. In addition, Cobalt will not and cannot monitor, verify, censor or edit the content of any Third Party Websites. By accessing or using the Website or Services, you expressly relieve and hold harmless Cobalt from any and all liability arising from your use of any Third Party Website.
Your interactions with organizations or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Cobalt shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between users or between users and any third party, you understand and agree that Cobalt is under no obligation to become involved. In the event that you have a dispute with one or more other users or third parties, you hereby release Cobalt, its officers, directors, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. The foregoing releases are made by you notwithstanding the provisions of California Civil Code Section 1542 (or any other statute, whether in California, Delaware, New York or elsewhere, or common law principle with a similar effect as to the subject matter of these Terms) which provides: “A general release does not extend to claims which the credit or does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You expressly waive any and all rights you may have under the provisions of California Civil Code Section 1542 or any similar statute in any other jurisdiction.
Unless as otherwise specified in the applicable Subscription Plan, except in order to identify you as a customer on its Website and marketing materials for the Services, Cobalt is not permitted to use your name and logo without your prior written consent.
15. TERM AND TERMINATION.
A. Term and Renewal.
Unless as otherwise specified in the applicable Subscription Plan, your ability to access and use the Services shall commence on the date of your acceptance of the Subscription Plan, and shall continue in effect for a period of 12 months (the “Term”). Unless as otherwise specified in the Subscription Plan, the term of the Subscription Plan shall automatically renew for successive 12-month periods, unless you provide written notice (email is sufficient) to Cobalt of your intent not to renew your Subscription Plan, or any Service that is part of your current Subscription Plan, within at least 30 days prior to the end of the then-current Term.
B. Termination of Access and Use of the Services.
The Subscription Plan may be earlier terminated by either party, in whole or in part, (i) if the other party materially breaches a provision of these Terms and fails to cure such breach within 10 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (ii) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days.
C. Effect of Termination.
Upon termination of your account, your right to access and use the Services will immediately cease. All provisions of these Terms, which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, intellectual property related restrictions, indemnification obligations and limitations of liability. In addition, all remedies for breach of these Terms shall survive any termination of these Terms.
16. INDEPENDENT CONTROLLER DATA PROCESSING ADDENDUM
As specified in your Subscription Plan, the Cobalt Data included in your subscription may contain Personal Data. You and Cobalt acknowledge that each is a separate and independent Controller of any Personal Data included in the Services (“Included Data”). The parties do not and will not Process Included Data as joint controllers. Each party shall comply with the obligations that apply to it as a Controller under the GDPR, and each party shall be individually and separately responsible for its own compliance.
You shall Process Included Data only for the purposes set forth herein in these Terms, including any applicable Subscription Plans, or as otherwise agreed in writing by the parties, provided such Processing strictly complies with the GDPR and any other applicable privacy laws, and your obligations under this Section 16. To the extent applicable, you shall maintain publicly-accessible privacy policies on your websites and mobile applications, to the extent applicable, that satisfy all applicable transparency and notice requirements set forth in the GDPR with respect to your Processing of Included Data. Notwithstanding anything to the contrary in the this Section, the Terms or the Subscription Plan, you shall immediately delete or destroy all Included Data in its possession upon the expiration or earlier termination of the Subscription Plan or, if sooner, upon the conclusion of your purpose for Processing such Included Data.
In the event that either party receives a request from a Data Subject relating to the Processing of such Data Subject’s Personal Data by the other party, the party receiving such request will (i) promptly notify the other party of such request, (ii) direct the Data Subject to such other party in order to enable such other party to respond directly to the Data Subject’s request, and (iii) reasonably cooperate with such other party in responding to such request. Without limiting the foregoing, you agree to promptly (and in any event within five (5) business days) notify Cobalt of any Data Subject request pursuant to Article 16 (Right to rectification), Article 17 (Right to erasure), or Article 18 (Right to restriction of processing) of the GDPR that relates in any way to the Included Data.
You acknowledge that, from time to time, Included Data may be updated, modified, augmented, or removed from the Services. You shall regularly check and ensure it is using the most up-to-date version of the Included Data. Cobalt shall notify you without undue delay of any changes to the Included Data (including, without limitation, any deletions) that were made in response to a Data Subject request pursuant to the GDPR.
Each party shall implement appropriate technical and organizational measures to protect the Included Data. At a minimum, you shall use at least the same level of privacy protection as is required by the EU-US and Swiss-US Privacy Shield Framework and Principles issued by the U.S. Department of Commerce, both available at https://www.privacyshield.gov/EU-US-Framework (the “Privacy Shield Principles”), and shall promptly notify Cobalt of any inability to provide such protection. In the event that either party suffers a Personal Data Breach, such party shall notify the other party without undue delay and the parties shall reasonably cooperate with each other in taking such measures as may be necessary to notify affected Data Subjects, comply with each party’s obligations under the GDPR, and to mitigate or remedy the effects of such Personal Data Breach.
If and to the extent you transfer any Included Data to any third-party data processor, you shall first enter into contractual arrangements with such third party data processors obligating such process to Process the Included Data in accordance with the requirements of the GDPR.
Every transfer of Included Data by you from the European Economic Area or Switzerland to the United States shall be made pursuant to the Privacy Shield Principles, and you shall certify to and comply with the Privacy Shield Principles for the duration of the Subscription Plan.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Cobalt shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Cobalt’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. This Agreement is not assignable, transferable or sub-licensable by you except with Cobalt’s prior written consent. Cobalt may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement, including any applicable Subscription Plans, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications and waivers of any provisions hereof must be in writing, signed by both parties, except as otherwise provided herein. In the event of a conflict between the terms of this Agreement and the terms of a Subscription Plan, the terms of this Agreement shall control except to the extent that the Subscription Plan expressly states that a term is intended to control over this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Cobalt in any respect whatsoever. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.
18. ARBITRATION; GOVERNING LAW; JURY TRIAL WAIVER.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in the Commonwealth of Massachusetts, using the English language 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, and who shall have sole authority to decide any question concerning the scope, applicability, enforceability, revocability, and/or validity of this arbitration agreement, and be barred from presiding over any class, collective, or representative action, consolidating multiple claimants’ cases or awarding any non-individualized relief (“Class Action Waiver”). The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. 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. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Commonwealth of Massachusetts. Any arbitration will take place on an individual basis. Class arbitrations, class actions, representative actions, any other form of collective action or consolidated proceedings are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND COBALT ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. If the above Class Action Waiver is found to be unenforceable or invalid, any class or representative claims would proceed in state or federal courts located in Boston, Massachusetts. Under no circumstances shall any class or representative claims proceed in arbitration. To the extent the Class Action Waiver is valid, claims subject to the Class Action Waiver shall go forward in individual arbitration (as described above) and any such claims shall be stayed pending resolution of the individual arbitration.
If you have any questions, complaints, or claims with respect to the Services, you may contact us at: Cobalt Software, Inc., 2 Financial Center, 60 South Street, Suite 820, Boston, MA 02111; email: email@example.com; phone: +1-617-982-6096.
Effective April 17, 2020.