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 AND 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, TOGETHER WITH THE applicable 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 WAIVER OF A RIGHT TO TRIAL BY JURY IN CONNECTION WITH THESE TERMS. 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) and receipt of Cobalt Data (defined below), 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 and who are acting at your direction and under your control. 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 these Terms and a Subscription Plan, these Terms will control.
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. 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 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. For the avoidance of doubt, Content does not include Client Data.
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 by 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.
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. You acknowledge that use of third party data included in the Cobalt Data is further governed by the Third Party Terms located at: https://www.cobalt.pe/third-party-terms/. For the avoidance of doubt, Client Data (defined below) is not used to generate Cobalt Data, and further, Cobalt Data does not include or incorporate Client Data.
You and your Authorized Users may download an “Insubstantial Amount of Cobalt Data” (defined below), solely for internal use during the term of the applicable Subscription Plan, and use such Insubstantial Amount of Cobalt Data to generate aggregate-level work product or reports about you (“Reports”). Reports 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. Notwithstanding the foregoing, Reports generated using Cobalt Data that include index reporting data may not be disclosed to any third-party without a separate license from the applicable third-party licensor. “Insubstantial Amount of Cobalt Data” means an amount of Cobalt Data that has no independent commercial value, could not be used as a substitute for the Services or any part of them, and is not separately marketed by you, Cobalt or its affiliates, or a third-party licensor of Cobalt or its affiliates.
Reports generated using Cobalt Data that include certain index or other benchmark reporting data that Cobalt licenses from 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 ow n 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. Client Data.
In order for Cobalt to provide the Services to you, you may 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 (“Client Data”). These Services may include, but are not limited to portfolio monitoring, cash flow analytics, and professional services. You retain all right, title and interest in and to the Client Data, including all intellectual property and proprietary rights therein.
You hereby grant Cobalt and its affiliates a non-exclusive, non-sublicensable license to use any Client Data, for the purposes of providing the Services and which may be required for Cobalt to perform its obligations under this Agreement. The license grant includes the right to create, maintain and implement current copies of Client Data for back-up, operational, legal and archival purposes.
You shall not upload, provide or submit (a) any special categories of data as defined in Article 9 of the EU General Data Protection Regulation (GDPR); and/or (b) any individual’s first name and last name (or first initial and last name) in combination with any of the following that relate to an individual person: (i) Social Security or individual taxpayer identification number; (ii) driver’s license number or state-issued identification card number; or (iii) financial account number, or credit or debit card number, access code, personal identification number or password that would permit access to an individual’s financial account.
You agree that as part of providing the Services, Cobalt may collect, use and disclose quantitative data derived from the use of the Services for industry analysis, analytics and other business purposes. All data used and disclosed will be in aggregate form only and will not identify Client or Authorized Users. For clarity, Cobalt will not use Client Data, whether de-identified or not, for creating benchmarks to be shared with or made public to third parties without Client’s prior written consent.
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.
If you subscribe to use the Services, you may give Cobalt access to your Confidential Information (as defined below) for the purpose of 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, subject to the remainder of this section, information one party shares with another that the disclosing party identifies as confidential or the receiving party should reasonably understand to be confidential given the circumstances and the nature of the information. Confidential Information does not include information that the receiving party can demonstrate: (i) it had in its possession without restriction before receipt from the disclosing party, (ii) is publicly available through no fault of the receiving party, (iii) it rightfully received from a third party without a duty of confidentiality, or (iv) is independently developed without use of or reference to the other party’s Confidential Information.
The receiving party may use Confidential Information only to fulfill its obligations under this Agreement and to exercise the rights expressly granted to it under this Agreement with respect to such Confidential Information, and the receiving party must use at least reasonable care to prevent any unauthorized use or disclosure of Confidential Information. The receiving party may only share Confidential Information with its employees, agents and contractors who need to know it for the purposes of this Agreement, as long as they are bound to confidentiality obligations consistent with this Agreement; provided, however, that each party may share confidential information with professional advisors such as auditors or attorneys who are professionally bound to confidentiality obligations and with affiliates so long as such affiliates adhere to the terms of this section.
If compelled to do so by law, the receiving party may disclose Confidential Information as long as it provides reasonable prior notice to the disclosing party, unless a court orders that the disclosing party not be given notice, and reasonably cooperates with the disclosing party in its efforts to limit any such disclosure or to obtain a protective order. The terms and conditions, but not the existence, of your Subscription Plan will constitute Confidential Information.
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 immediately cease using the Services, and remove or purge your Confidential Information from your account prior to termination or expiration of the applicable Subscription Plan. Additionally, you shall return or destroy any Confidential Information of Cobalt in your possession, and if destroyed, certify such destruction in writing upon Cobalt’s request.
F. Proprietary Rights.
As between Cobalt and you, all right, title, and interest in and to the Services and Cobalt Data including, without limitation, all rights therein, and all derivatives, translations, modifications and enhancements thereof, are, and shall remain, owned exclusively by Cobalt or Cobalt’s licensors. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services. Cobalt alone shall own all rights, title and interest in and to any suggestions, enhancement requests, feedback, or recommendations provided by you or any third party relating thereto.
As between you and Cobalt, you exclusively own all rights, title and interest in and to all Client Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Client Data, and hereby warrant that that you have and will continue to have all rights and consents necessary to allow Cobalt to use all such data as contemplated by this Agreement.
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) is designed 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 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 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 Client 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. WARRANTY DISCLAIMERS.
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.
7. 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 Client 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.
9. LIMITATION OF LIABILITY.
A. Limitation of Liability for Services.
EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, ANY BREACHES OF SECTION 5.C (CODE OF CONDUCT), AND BREACHES OF YOUR OBLIGATION TO PAY ANY FEES FOR SERVICES ALREADY PROVIDED, (i) IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS, OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER FOR PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF THE CAUSE OF ACTION AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; AND IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OWED BY YOU UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS’ PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THESE LIMITATIONS APPLY EVEN THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. IN ADDITION, THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
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.
10. 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 14.B 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.
12. 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.
14. 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. 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, at least three (3) full months prior to the end of the then-current Term. “Term” means, as the context requires, either (i) any of the initial term or any renewal term or (ii) the initial term plus all renewal terms.
B. Termination of Access and Use of the Services.
This Agreement may be earlier terminated by either party, in whole or in part, (i) if the other party materially breaches a provision of this Agreement and fails to cure such breach within ten (10) days 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 ninety (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.
D. Destruction of Data.
Upon expiration or termination of the Agreement, your right to access and use the Services shall immediately terminate, and, except as otherwise expressly permitted by this Agreement, any and all Cobalt Data that has been downloaded must be destroyed or returned to Cobalt; provided, however, that you shall not be required to expunge any Insubstantial Amount of Cobalt Data that has been incorporated into Reports pursuant to the terms of this Agreement, so long as you use reasonable efforts to destroy any such retained Insubstantial Amount of Cobalt Data in accordance with its standard document retention policies. Cobalt shall have no obligation to maintain or provide any Client Data and may, unless legally prohibited, delete all Client Data in its systems or otherwise in its possession or under its control.
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.
16. GOVERNING LAW; DISPUTE RESOLUTION.
These Terms and your Subscription Plan are governed by the laws of the State of New York, without regard to its conflicts of laws provisions. You and Cobalt each agree to submit to the exclusive jurisdiction of the courts located in New York County, New York, for the resolution of any dispute or claim relating to the foregoing. YOU AND COBALT EACH HEREBY AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM THAT MAY ARISE UNDER THIS AGREEMENT.
Notices to us should be sent to: Cobalt Software, Inc., c/o FactSet Research Systems Inc., 45 Glover Ave, 7th Floor, Norwalk, CT 06850, Attention: Legal, with an email copy sent to each of email@example.com and firstname.lastname@example.org. Notices to you may be sent to the address provided on your Subscription Plan.
Effective November 22, 2021.