The Agreement governs the provision by Cosell to the Customer of access to the web based service described at www.cosell.io, as it may be updated from time to time in Cosell’s sole discretion (the “Service”).
1. Cosell Service.
1.1 Subscriptions. Company and Customer may enter into one or more order forms (“Order Forms”) referencing this Agreement, pursuant to which Customer may purchase a subscription to access and use the Service, subject to this Agreement (a “Subscription”). Each Order Form is deemed incorporated into this Agreement. Cosell will use commercially reasonable efforts to ensure the Service is fully available in all material respects on a 24/7 basis (subject to downtime for scheduled maintenance, emergency maintenance, and matters beyond Cosell’s reasonable control).
1.2 Access to the Service. During the term of a Subscription and subject to Customer’s compliance with the terms and conditions of this Agreement, Cosell shall provide Customer with non-exclusive access to the Service and grants Customer the right to access and use the Service solely for its own business purposes.
1.3 Users. Access to the Service is made on an organization-wide basis, with no limit on the number of users (a “User”) which Customer may permit to access Customer’s account on the Service. Each User shall have unique log-in credentials and Customer will ensure that Users maintain the confidentiality of their log-in credentials. Customer will be responsible for the acts and omissions of each User with respect to the Service.
1.4 Professional Services. If applicable, Cosell and Customer may additionally agree upon the provision by Cosell of professional services relating to the implementation or other support of Customer’s use of the Service, as set forth in a Statement of Work referencing and governed by this Agreement (“Professional Services”).
2. Billing and Payments.
2.1 Pricing Structure. The pricing model for the Service has the following components: (i) an annual subscription fee (the “Subscription Fee”); and (ii) if applicable, fees for Professional Services (“Professional Service Fees” and together with Subscription Fees, “Fees”). Fees charged are as-described on the applicable Order Form and are not refundable.
2.3 Modifying Customer’s Subscription. Any changes to Customer’s subscription shall be evidenced by a new Order Form executed by Cosell and Customer. There are no refunds or credits for plan downgrades or modifications during the subscription term set forth in an Order Form.
2.4 Late Charges. Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
2.5 Taxes. Customer is solely responsible for payment of any taxes resulting from the use of the Service. If any such taxes are required to be withheld, Customer shall pay an amount to Cosell such that the net amount payable to Cosell after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
2.6 Billing Disputes. Customer agrees that it shall notify Cosell within 60 days of receipt of an invoice from Cosell if it intends to dispute the amounts owed under such invoice, and that after 60 days all undisputed invoices will be deemed to have been accepted.
3. Intellectual Property
3.1 Rights in the Cosell Service. Cosell shall retain all intellectual property rights in the Service, including any and all derivatives, changes and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein.
3.2 Feedback. Customer hereby grants Cosell a non exclusive, perpetual, irrevocable, royalty-free, fully paid-up license to any ideas, suggestions, feedback, gift ideas or categories, or service improvements given by Customer pertaining to the Service.
3.3 Restrictions. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that it possess any proprietary interest in the Service; (iii) not directly or indirectly, take any action to contest Cosell's intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Cosell.
4. Customer Content.
4.1 Ownership. All data, information, files or other materials and content that Customer makes available to Cosell for the purpose of utilizing the Service (“Customer Content”) shall remain the sole property of Customer.
4.2 License to Cosell. Customer hereby grants Cosell a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Content, (i) to the extent required to perform the Service, and (ii) to the extent such Customer Content has been aggregated and anonymized such that no identification of Customer or any User is possible, for any business purpose (and Cosell will, notwithstanding Section 5.1, have the right to retain and use such information after the termination of this Agreement).
5.1 Nondisclosure. Each party (each, a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and nonuse at least as protective of such information as this Agreement and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the terms and conditions of this Agreement. On termination of this Agreement, the Receiving Party will return to the Disclosing Party (or, at the Disclosing Party’s request, destroy) all of the Disclosing Party’s Confidential Information.
5.2 Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
5.4 EU Privacy Laws. Customer agrees that any transfer by Customer to Cosell of any “personal data”, as defined in the European Union General Data Protection Regulation (“GDPR”) is subject to Cosell’s Data Processing Addendum, available at www.cosell.io/dpa (the “DPA”), which is hereby incorporated by reference.
5.5 California Consumer Privacy Act. Customer acknowledges and agrees that Cosell’s California Data Privacy Addendum, available at www.cosell.io/cdpa (the “CDPA”) is hereby incorporated into this Agreement by reference.
6.1 Representations and Warranties.
6.1.1 Each party represents and warrants that (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms and conditions of this Agreement and (b) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
6.1.3 Cosell additionally represents and warrants that (a) the Service will comply with all laws and regulations and will not infringe any third party’s intellectual property rights, and (b) the Service will comply in all material respects with any Cosell-provided documentation.
6.1.3 Customer additionally represents and warrants that (a) the Customer Content does not infringe upon any third party's proprietary rights, including intellectual property rights (b) Customer will use the Service in compliance with all applicable laws and regulations.
6.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, COSELL PROVIDES THE USAGE OF THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COSELL DOES NOT WARRANT THAT (I) THE SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED WITHOUT MISTAKE OR INTERRUPTION OR (II) THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE.
7.1 Customer's Indemnities. Customer shall defend, indemnify and hold harmless Cosell and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third party claim, suit or proceeding and all resulting damages, costs, losses, awards and reasonable attorneys’ fees (collectively, a “Claim”), arising out of or relating to (a) the use or display of any Customer Content; or (b) Customer’s use of the Service in any manner that violates this Agreement or applicable laws, rules or regulations.
7.2 Cosell's Indemnities. Cosell shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to (a) an allegation that the Service infringes any intellectual property right of a third party, (b) Cosell’s violation of any laws or regulations, or (c) Cosell’s gross negligence or willful misconduct.
7.3 Procedures. Each party’s indemnitee obligations are contingent on the indemnity providing it with prompt written notice of all claims and threats thereof, sole control of all defense and settlement activities, and all reasonably requested assistance.
8. Limitation of Liability.
8.1 EXCLUSION OF DAMAGES. EXCEPT FOR A BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR A BREACH OF CONFIDENTIALITY, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO COSELL DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES. WITH RESPECT TO A PARTY’S INDEMNITY OBLIGATIONS, THE CAP IN THIS SECTION 8.2 WILL BE INCREASED BY FOUR TIMES (4x).
9. Term; Termination.
9.1 Term. This Agreement shall commence on the Effective Date and will terminate as set forth below (the “Term”). Each Order Form will have the term set forth thereon. Unless otherwise specified in the Order Form, each Order Form will automatically renew for successive 12 month terms unless notice of non-renewal is given by either party at least 30 days prior to the end of the then-current term of the Order Form.
9.2 Term. Either party may terminate this Agreement on ten (10) days’ notice if there are no Order Forms in effect. In addition, either party may terminate this Agreement (i) for the other party’s material breach, if the breaching party does not cure such breach within 30 days after receipt of written notice specifying in detail the nature of the breach, effective upon the expiration of such 30 day period, or (ii) upon notice if the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
9.3 Effect of Termination. Upon termination or expiration of this Agreement, Customer will immediately cease use of the Service and this Agreement shall terminate and be of no further force or effect, provided that the following provisions shall survive any expiration or termination of this Agreement: (i) the obligation of Customer to pay fees incurred prior to termination; (ii) Section 3 (Cosell Intellectual Property Rights & Restrictions), (iii) Section 4 (Customer Content),(iv) Section 5 (Confidentiality); (v) Section 6.2 (Disclaimer of Warranties); (vi) Section 7 (Indemnification); (vii) Section 8 (Limitation of Liability); and (viii) Section 10 (General).
10.1 Entire Agreement; Amendments. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements. This Agreement may only be amended or otherwise modified by mutual written agreement of the parties.
10.2 Governing law. This Agreement is governed by the laws of the State of California, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10.3 Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
10.4 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email to the email address set forth above (a party may update its email address upon notice).
10.5 Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
10.6 Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
10.7 Force Majeure. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
10.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
10.9 Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied; provided, that Customer hereby approves the display by Cosell of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to Cosell.