Last amended on 05-01-2020.
“Agreement” means the agreement by and between Customer and Cosential, consisting of the Order Form, these Terms and Conditions (including any applicable Addenda referenced herein), and any Change Orders (as defined below).
“CCPA Addendum” means the California Consumer Privacy Act (“CCPA”) Addendum located at https://www.cosential.com/legal/ccpa.pdf.
“Competitor” means an entity that competes, directly or indirectly, with Cosential, or any entities owned or controlled by, or under common ownership with, Cosential.
“Cosential” means Cosential, Inc.
“Cosential Technology” means the Hosted Services, the software and applications comprised in or related to the Hosted Services, the servers and systems used by Cosential to provide the Hosted Services, and all related Documentation.
“Customer” has the meaning set forth on the Order Form.
“Customer Content” means the data and information, including graphics, provided by Customer (including its designees and Users) to Cosential through the Hosted Services or otherwise, but excluding any publicly available information.
“Deliverables” means any deliverables provided by Cosential to Customer as part of the Professional Services.
“Documentation” means the user documentation or materials for the Hosted Services, if any, provided by Cosential to Customer, including without limitation any training materials.
“DPA” means the Data Processing Addendum located at https://www.cosential.com/legal/dpa.pdf.
“GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Hosted Services” means Cosential’s software-as-a-service platform and related features, as further described on the Order Form, and the Deliverables.
“Intellectual Property Rights” means all right, title and interest in and to all foreign and domestic (a) trademarks, service marks, brand names, Internet domain names, logos, symbols, trade dress, trade names, and other indicia of origin, all applications and registrations for all of the foregoing, and all goodwill associated therewith and symbolized thereby, including all extensions, modifications and renewals of same; (b) inventions, discoveries and ideas, whether patentable or not, and all patents, registrations, and applications therefor, including divisions, continuations, continuations-in-part and renewal applications, and including renewals, extensions and reissues; (c) confidential and proprietary information, trade secrets and know-how, including processes, schematics, databases, formulae, drawings, prototypes, models, designs and customer lists; (d) published and unpublished works of authorship, whether copyrightable or not, copyrights therein and thereto, and registrations and applications therefor, and all renewals, extensions, restorations and reversions thereof; and (e) all other intellectual property or proprietary rights and claims or causes of action arising out of or related to any infringement, misappropriation or other violation of any of the foregoing, including rights to recover for past, present and future violations thereof.
“Order Form” means the Cosential Service Order Form or other sales documentation, including the exhibits thereto, into which these Terms and Conditions are hereby incorporated by reference, which expressly references these Terms and Conditions and is executed by Customer and Cosential, including by click-through or other electronic signature.
“Professional Services” means the development, design, implementation and other professional services set forth in the Order Form.
“Service Level Requirements” means those service level requirements set forth in Exhibit A attached hereto and incorporated by reference herein.
“User” means any employee or contractor of Customer and any employee or contractor of Customer’s affiliates, each designated by Customer to access or use the Hosted Services, provided that in no event may a Competitor of Cosential be a User.
Additional capitalized terms will have the meanings ascribed to them elsewhere in these Terms and Conditions.
These Cosential General Terms and Conditions (these “Terms and Conditions”) state the terms and conditions under which Cosential will deliver and Customer will receive (a) access to the Hosted Services and (b) the Professional Services. The parties acknowledge that Hosted Services and Professional Services may be described in one or more executed Order Forms, each of which constitute separate agreements between the parties for the provision of such Hosted Services or Professional Services, as applicable.
3.1 Grant to Customer. Subject to the terms and conditions of this Agreement, Cosential hereby grants to Customer a nontransferable, nonexclusive, non-sublicensable, non-assignable (except as set forth in Section 12.2 hereof) right during the Term (as defined in Section 11.1 hereof) to allow Users to access and use the Hosted Services and the Documentation, each in the ordinary course of Customer’s internal business operations. Customer is responsible for the compliance with this Agreement by all Users.
3.2 Scope. Customer will not, and will not permit any third party (including Users) to, directly or indirectly:
(a) download, reproduce or otherwise obtain a copy of any Cosential Technology, or create, recreate or attempt to create by re-engineering, reverse engineering or otherwise, the source code for the Hosted Services, or decompile or disassemble the Cosential Technology;
(b) modify, adapt, translate or create derivative works based upon the Cosential Technology, or combine or merge any part of the Cosential Technology with any other systems, software or documentation;
(c) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in or on the Cosential Technology;
(d) use the Cosential Technology, including transmitting, distributing or storing any Customer Content or other information or data through the Hosted Services, in any manner so as to (i) compete with Cosential or provide services to third parties, whether on a service bureau basis or otherwise, other than providing Users with access to the Hosted Services as permitted in this Agreement; (ii) violate any federal, state or local law or regulation, domestic or foreign; (iii) violate, infringe upon or misappropriate any Intellectual Property Right of any third party in any jurisdiction, including publicity or privacy rights (including the Cosential Proprietary Rights (as defined in Section 5.1 hereof); (iv) harass, threaten or defame (whether through libel or slander) any third party; or (v) send unsolicited advertisements or solicitations, commercial or otherwise, to any third party;
(e) sell, rent, transfer, lease, license, sublicense or encumber any of the rights granted to Customer hereunder except as specified in Section 12.2 hereof; or
(f) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise allow or attempt to allow access to the Cosential Technology to any third party other than as expressly permitted in this Agreement, and Customer will provide reasonable security means and devices to protect against unauthorized usage of or access thereto, and in no event will Customer provide or attempt to provide such access to any Competitor of Cosential or use the Cosential Technology for developing, or having developed, any products or services competitive with the Cosential Technology.
3.3 Suspension or Termination. If Cosential becomes aware of or suspects any use in violation of Sections 3.1 and/or 3.2 of this Agreement, Cosential will immediately notify Customer and provide reasonable details of such violation in writing. Customer will then have thirty (30) days after receipt of written notice to make such changes as are necessary to ensure that they are not in violation of Sections 3.1 and/or 3.2 of this Agreement. In the event Customer is still in violation of Sections 3.1 and/or 3.2 of this Agreement, after thirty (30) days of receipt of written notice, Cosential reserves the right to suspend or terminate the provision of Hosted Services and the rights granted hereunder.
(a) Customer may elect from time to time to provide suggestions or comments regarding enhancements or functionality or other feedback (“Feedback”) to Cosential with respect to the Cosential Technology. Cosential will have full discretion to determine whether to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Cosential a royalty-free, fully paid up, worldwide, transferable, sublicensable (directly and indirectly), perpetual, irrevocable license to (i) copy, distribute, transmit, display, perform, and modify and create derivative works of the Feedback, in whole or in part; and (ii) use the Feedback and/or any subject matter thereof, in whole or in part, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which incorporate, practice or embody, or are configured for use in practicing, the Feedback, in whole or in part.
(b) Customer hereby grants permission to Cosential to contact Users via email or on-screen notification for the purpose of requesting feedback and share product updates. Users will have the option to opt-out from these communications.
3.5 Customer Content
(a) As between Customer and Cosential, Customer owns the Customer Content. Notwithstanding anything to the contrary in this Agreement, Cosential will not, without Customer written approval in advance, disclose any Customer Content and will take all necessary measures to ensure and maintain the confidentiality and security of Customer Content including, but not limited, those measures required by applicable law.
(b) Customer hereby grants to Cosential a non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable, right and license to reproduce, distribute, display, and create derivative works of and use the Customer Content as may be reasonably required in connection with the performance of Cosential’s obligations under this Agreement.
(c) Customer also hereby grants to Cosential a non-exclusive, world-wide, perpetual, royalty-free, fully paid-up, and irrevocable license to copy, modify, process and create derivative works of Customer Content, in whole or in part, for the purpose of deriving anonymous statistical and usage data, and data related to the functionality of Cosential’s products and services, provided such data cannot be used to identify Customer or its Users (“Anonymous Data”) and combine or incorporate such Anonymous Data with or into other data and information available, derived or obtained from other customers, licensees, users, or other sources (when so combined or incorporated, referred to as “Aggregate Data”), in either or both cases, for improving Cosential’s existing products and services, developing new Cosential products and services and for marketing purposes (e.g., indicating the number of customers using Cosential products and services). For the avoidance of doubt, neither Anonymous Data nor Aggregate Data constitute Customer Content.
(d) To the extent Customer Content includes Personal Data (defined below), Customer will notify Cosential that Customer Content includes Personal Data prior to any processing of such Personal Data by Cosential, and thereafter the parties shall comply with the DPA, which is incorporated herein by this reference, to the extent the GDPR applies to the processing of Personal Data. To the extent Customer Content includes Personal Information (defined below), Customer will notify Cosential that Customer Content includes Personal Information prior to any processing of such Personal Information by Cosential, and thereafter the parties shall comply with the CCPA Addendum, which is incorporated herein by this reference, to the extent the CCPA applies to the processing of Personal Information. Except as expressly stated therein, the DPA and the CCPA Addendum shall not be modified except by mutual written agreement of the parties. By entering into this Agreement, each party is deemed to agree to be bound by the DPA (and, if applicable, the Standard Contractual Clauses attached to the DPA) and/or the CCPA Addendum. For the purposes of this Section 3.5(d), “Personal Data” has the meaning given under the DPA, and “Personal Information” has the meaning given under the CCPA Addendum.
4. PROVISION OF SERVICES
4.1 Hosted Services. Cosential will use commercially reasonable efforts to provide the Hosted Services to Customer in the form and manner specified in the Order Form and in accordance with the Service Level Requirements. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Cosential regarding future functionality or features.
4.2 Usage Limits. The Hosted Services are subject to usage limits for the number of Users specified in the Order Form.
4.3 Professional Services. Cosential will provide Professional Services, if any, to Customer in the form and manner specified in the Order Form. To the extent the Professional Services include implementation services necessary for the provision of Hosted Services to Customer or the delivery of Deliverables, Cosential will use commercially reasonable efforts to complete such implementation or delivery according to the timeline set forth in the relevant Order Form. Cosential will not be required to commence providing Professional Services until receipt of a fully executed Order Form and any payment required thereunder. Cosential may subcontract the performance of the Professional Services at its sole discretion, provided that Cosential will be responsible for all acts and omissions of each subcontractor. Cosential and its personnel will observe at all times during their provision of Professional Services the security and safety policies of Customer provided to Cosential in writing.
4.4 Change Orders and Work Stoppage. In the event that Customer wishes to request change(s) that are individually or collectively material to any Order Form, Customer will submit a written change order (the
“Change Order”) to Cosential which will reference the Order Form. Cosential will use commercially reasonable efforts to, within ten (10) business days of receipt of the Change Order, submit to Customer the revised fees, timelines and delivery schedules and other information reflecting the impact of the requested changes (“Change Order Response”). Customer will accept or reject the Change Order Response within five (5) business days of receipt, and will be deemed to have rejected the Change Order Response unless Customer notifies Cosential of acceptance of the Change Order Response within such five (5) business day period. Cosential will continue work pursuant to the existing Order Form, and will not be bound by any Change Order, until the applicable Change Order Response is accepted in accordance with this Section 4.4. Cosential will use commercially reasonable efforts to meet rush Change Orders outside the original scope of work and delivery schedules in an Order Form, but such rush Change Orders will be subject to higher hourly rates than Cosential’s standard hourly rates, which higher hourly rates will be stated in the Change Order Response. Cosential will use commercially reasonable efforts to provide Professional Services substantially in accordance with the provisions of a Change Order Response accepted in accordance with the provisions of this Section 4.4. Each such Change Order Response is hereby (a) incorporated by reference into this Agreement and made a part hereof as if fully set forth in this Agreement and (b) made binding on the parties thereto. In the event of any conflict among these Terms and Conditions, the DPA and CCPA Addendum, an Order Form, and/or a Change Order Response, the order of precedence will be the applicable DPA and/or CCPA Addendum, these Terms and Conditions, the Change Order, and the Order Form, unless the Parties expressly state their intention in either the Order Form or Change Order to amend a particular provision of these Terms and Conditions.
4.5 Modifications. Cosential reserves the right to modify the features and functionality of the Hosted Services from time to time, whether for the purposes of fixing errors or otherwise (a “Modification”), and Cosential will use reasonable efforts to provide advance notice to Customer prior to such Modification taking effect, provided that Cosential will not modify the Hosted Services in a manner which would (in Cosential’s reasonable judgment) materially reduce the functionality and features of the Hosted Services made available to Customer, without providing at least thirty (30) days prior written notice to Customer of any such Modification.
5.1 Cosential Proprietary Rights. As between Customer and Cosential, the Cosential Technology is and will remain the sole and exclusive property of Cosential, including all Intellectual Property Rights in and to the Cosential Technology, including without limitation all software, source and object code, specifications, designs, processes, techniques, concepts, improvements, discoveries and inventions made, developed or conceived in connection with the provision of Hosted Services and Professional Services to Customer hereunder (collectively, the “Cosential Proprietary Rights”).
5.2 Customer Proprietary Rights. As between Cosential and Customer, Customer will own all Intellectual Property Rights in and to the Customer Content, subject to the license grants in Section 3.5 hereof. Upon Customer’s approval in writing, which will not be unreasonably withheld, nothing herein will restrict or prevent Cosential from (a) using any portions of the Customer Content available to the public (including through Customer’s web site(s)), or (b) linking to Customer’s web site(s).
6.1 Hosted Services Fees. Customer will pay to Cosential the fees set forth on the Order Form for Cosential’s provision of access to the Hosted Services, in accordance with the payment terms set forth thereon. License fees are non-refundable. Cosential may increase the Hosted Service fees for the upcoming Renewal Term (as defined in Section 11.1 hereof), upon providing written notice to Customer at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term. Nonpayment of service fees may result in suspension of Customer’s access or use of the Hosted Services.
6.2 Professional Services Fees. Customer will pay to Cosential the Professional Services fees set forth on any Order Form, in accordance with the payment terms set forth thereon. Any additional Professional Services requested by Customer will be provided at Cosential’s current standard hourly rates, which rates are subject to change from time to time at Cosential’s discretion.
6.3 Expense Reimbursements. Whenever any Professional Services are provided by Cosential at a Customer location or any other location requested by Customer, Customer will reimburse Cosential for its reasonable travel, lodging, meal and related expenses incurred by Cosential personnel in providing such services with prior approval from Customer.
6.4 Taxes. The fees and other amounts payable by Customer to Cosential under this Agreement do not include, and will be paid in full without any reduction for, any taxes of any jurisdiction that may be assessed or imposed upon the rights granted under this Agreement or the services provided under this Agreement, or otherwise assessed or imposed in connection with the transactions contemplated by this Agreement, including sales, use, excise, value added, personal property, export, import and withholding taxes, and customs duties, excluding only taxes based upon Cosential’s income. Customer will directly pay any such taxes assessed against it, and Customer will promptly reimburse Cosential for any such taxes payable or collectable by Cosential.
6.5 Payment Terms. Hosted Services fees will be invoiced by Cosential in advance of the effective date set forth on the Order Form. All other fees and expense reimbursements will be invoiced by Cosential in accordance with the Order Form, or as and when incurred by Cosential. All invoices will be sent to Customer’s address for billing purposes set forth on the Order Form. Customer will pay all invoices within thirty (30) days of the date of the invoice. Interest at the rate of twelve percent (12%) per annum (or the maximum rate permitted by law, whichever is greater) will accrue on any amount not paid by Customer to Cosential when due under this Agreement and will be payable to Cosential on demand. All fees and other amounts paid by Customer hereunder are non-refundable.
7. WARRANTIES AND REPRESENTATIONS
7.1 Mutual. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
7.2 Cosential. Cosential represents and warrants to Customer that (a) the Hosted Services will substantially conform with the specifications for the Hosted Services provided by Cosential to Customer; and (b) that the Professional Services will be provided in a professional and workmanlike manner in accordance with the Order Form. Customer’s sole and exclusive remedy, and Cosential’s sole liability, with respect to breach of the representation and warranty in the foregoing Section 7.2(a) is set forth in the Service Level Requirements.
7.3 Customer. Customer represents and warrants to Cosential that: (a) Customer has and will have the legal authority and all rights necessary and appropriate to provide the Customer Content to Cosential and grant the licenses and rights hereunder with respect to the Customer Content; (b) neither the Customer Content nor Cosential’s exercise of its rights granted herein with respect hereto violate (i) any federal, state or local law or regulation, domestic or foreign, or (ii) infringe upon or misappropriate any Intellectual Property Right of any third party in any jurisdiction, including publicity or privacy rights; (c) the Customer Content does not contain any libelous, slanderous, harassing, threatening, or defamatory materials; (d) the Customer Content is free from viruses, worms, trojan horses and other malicious code that would disable the Cosential Technology or impair in any way its operation or that would permit unauthorized access to the Cosential Technology or cause the Cosential Technology to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with Cosential’s operations; and (e) Customer will comply with applicable law. Customer is fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of its activities, or those of its Users and its employees and contractors, and Customer will be responsible for and indemnify Cosential against all claims, damages, settlements, expenses and attorney’s fees incurred by Cosential with respect to any of the foregoing.
7.4 Exclusions. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE HOSTED SERVICES, DOCUMENTATION, AND PROFESSIONAL SERVICES ARE PROVIDED BY COSENTIAL TO CUSTOMER AND USERS “AS IS”, AND COSENTIAL MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY, RELIABILITY, TIMELINESS OR SECURITY OF THE HOSTED SERVICES, DOCUMENTATION, OR PROFESSIONAL SERVICES, OR THAT THE HOSTED SERVICES, DOCUMENTATION, OR PROFESSIONAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED OR ERROR FREE, OR ANY OTHER WARRANTIES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, REGARDING THE FOREGOING, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. LIMITATIONS ON LIABILITY
IN NO EVENT WILL COSENTIAL’S LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS, ARISING OUT OF THIS AGREEMENT FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO COSENTIAL HEREUNDER IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO ANY CLAIM. IN NO EVENT WILL COSENTIAL, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS, BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES OR LOSS OF BUSINESS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT FORESEEABLE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL COSENTIAL, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS, BE LIABLE FOR THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA PROVIDED THROUGH THE HOSTED SERVICES, OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN, OR ANY BREACH OF THE SERVICE LEVEL REQUIREMENTS.
9. CONFIDENTIAL INFORMATION
9.1 Definition. The parties anticipate that they will exchange confidential information during the Term. “Confidential Information” means any and all tangible and intangible information, either written, oral, or in any other medium, disclosed or made available by a party (“Disclosing Party”) to the other party (the “Receiving Party”), including, without limitation, research and development, patents or trade secrets, financial information, know-how, designs, samples, processes, methodologies, manuals, vendor names, supplier lists, customer lists and other information related to clients, employee lists, databases, sales and marketing information, and computer programs, or any other confidential information or proprietary aspects of the business of the Disclosing Party. The Cosential Technology and the terms and conditions of this Agreement are Cosential’s Confidential Information. The Customer Content is Customer’s Confidential Information. Information will not be considered to be Confidential Information to the extent that the Receiving Party can prove by reliable written record that such information: (a) is already known to the Receiving Party free of any restriction at the time it is obtained by the Receiving Party; (b) is subsequently learned from an independent third-party free of any restriction or obligation of confidentiality and without breach of this Agreement; (c) becomes publicly available through no wrongful act of the Receiving Party; (d) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the other party. In addition, the Receiving Party may disclose the Confidential Information of the Disclosing Party if required to be disclosed by law, regulation, court order or subpoena, provided that the Receiving Party will exercise reasonable efforts to notify the Disclosing Party in writing prior to disclosure.
9.2 Obligations. The Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information. The Receiving Party will protect all Confidential Information received from the Disclosing Party with the same degree of care used by the Receiving Party to protect its own confidential information of like importance from unauthorized use or disclosure, but in no event less than a reasonable degree of care. The Receiving Party will only use the Disclosing Party’s Confidential Information to exercise its rights and perform its obligations under this Agreement. The Receiving Party acknowledges that (a) the provisions contained in this section are reasonable and necessary to protect the legitimate business interests of the Disclosing Party; and (b) its breach of this Section 9 will cause irreparable damage to the Disclosing Party and agrees that the Disclosing Party will be entitled to seek injunctive relief from a court of competent jurisdiction as a result of any breach as well as such further or other equitable relief as may be granted by such court, without the posting of any bond or other security and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Any right, power, or remedy provided under this Agreement to the Disclosing Party will be cumulative and in addition to any other right, power, or remedy provided under this Agreement or existing in law or in equity (including, without limitation, the remedies of injunctive relief and specific performance).
10.1 Cosential Indemnity. Cosential will defend at its expense any claim, suit or proceeding (each a “Claim”) brought against Customer, its officers, directors, employees and agents (the “Customer Indemnitees”) by any third party to the extent such suit or action is based on a claim that the Hosted Services infringe any valid United States patent or copyright, and Cosential will pay all damages and costs finally awarded against the Customer Indemnitees by a court of competent jurisdiction as a result of any such Claim; provided, however, that Customer (a) promptly notifies Cosential in writing of such Claim; (b) promptly gives Cosential the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Cosential’s own choosing (provided that Customer will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (c) gives assistance and full cooperation for the defense of same. If the use of any portion of the Hosted Services by Customer becomes, or in Cosential’s opinion is likely to become, the subject of a claim of infringement, then Cosential may, at its option and expense, (i) procure for Customer the right to continue using such Hosted Services as set forth hereunder; (ii) replace or modify the Hosted Services so that they become non-infringing; or (iii) if options (i) or (ii) are not reasonably practicable, terminate this Agreement. Notwithstanding the foregoing, Cosential will have no liability or obligation under this Section 10.1 or otherwise with respect to any Claim based upon (A) any Customer Content; (B) use of the Hosted Services outside the scope of this Agreement; (C) modification of the Hosted Services in accordance with Customer’s specifications or instructions or by any person or entity other than Cosential without Cosential’s express consent; (D) the combination, operation or use of the Hosted Services with other applications, portions of applications, product(s), data or services not provided by Cosential; or (E) use of the Hosted Services by Customer after Customer has been notified of the potential infringement. This Section 10.1 states Cosential’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
10.2 Customer Indemnity. Customer will defend at its expense any Claim brought against Cosential, its officers, directors, employees and agents (the “Cosential Indemnitees”) by any third party arising out of, or related to, the Customer Content, and Customer will pay all costs and damages finally awarded against the Cosential Indemnitees by a court of competent jurisdiction as a result of any such Claim; provided, however, that Cosential (a) promptly notifies Customer in writing of such Claim; (b) promptly gives Customer the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Customer’s own choosing (provided that Cosential will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (c) gives assistance and full cooperation for the defense of same.
11. TERM AND TERMINATION
11.1 Term; Amended Terms and Conditions
(a) The term of this Agreement will commence on the date set forth on the Order Form and will continue for the period of time set forth on the Order Form (the “Initial Term”), unless earlier terminated as set forth herein. Thereafter, this Agreement will automatically renew for successive terms of equal length to the Initial Term (each, a “Renewal Term”) unless, at least forty-five (45) days prior to the date of the then-current term either party provides notice to the other party of its intention not to renew this Agreement. The Initial Term and any Renewal Terms are collectively referred to as the “Term.”
(b) Cosential may, from time to time, amend these Terms and Conditions, and will post such amended Terms and Conditions on Cosential’s website at https://www.cosential.com/legal/CosentialTerms.pdf, noting the date of the last such amendment. Upon the commencement of any Renewal Term, this Agreement will renew on the then-current version of these Terms and Conditions.
11.2 Terminations. Either party may terminate this Agreement by giving to the other party written notice of such termination upon the occurrence of any of the following events: (a) the other party breaches or defaults in any of the terms or conditions of this Agreement and fails to cure such breach or default within forty-five (45) days (or ten (10) days in the event of non-payment) of receipt of written notice thereof; (b) the other party makes any assignment for the benefit of creditors, is insolvent or unable to pay its debts as they mature in the ordinary course of business; or (c) any proceedings are instituted by the other party in bankruptcy or under any insolvency laws or for reorganization, receivership or dissolution or upon the dissolution of the other party.
11.3 Effect of Termination. Upon any expiration or termination of this Agreement, except as otherwise specified in this Agreement:
(a) all rights granted hereunder and all obligations of Cosential to provide the Hosted Services or the Professional Services will immediately terminate;
(b) Customer will immediately cease use of the Hosted Services;
(c) each party will return or destroy all copies or embodiments of the other party’s Confidential Information, subject to Cosential’s rights in Section 3.5(c);
(d) If requested in writing by Customer within thirty (30) days of the expiration or termination of this Agreement, Cosential will return to Customer all Customer Content, including a data backup containing all Customer Content in Cosential’s systems in a format reasonably requested by Customer, subject to Cosential’s rights in Section 3.5(c), with all charges and fees relating to such services to be incurred by Customer;
(e) Customer Content will be removed from Cosential’s systems with-in forty-five (45) days of the expiration or termination of this Agreement and permanently destroyed after ninety (90) days. If requested in writing by the Customer, the Customer Content will be permanently destroyed at the time requested by Customer up to ninety (90) days after the termination of the Agreement, at which time Customer Content will be permanently destroyed; and
(f) Cosential will assist Customer, as reasonably requested by Customer within ten (10) days of expiration or termination of this Agreement, with the transition of Cosential’s responsibilities hereunder to a third party designated by Customer, with all charges and fees relating to such services to be incurred by Customer. Within thirty (30) days of the expiration or termination of this Agreement or such exhibit, Customer will pay Cosential all accrued and unpaid fees and charges.
11.4 Survival. Sections 1, 3.2, 3.4, 3.5(c), 5, 6, 7.4, 8, 9, 10, 11.3 and 12 of these Terms and Conditions and will survive any expiration or termination of this Agreement.
12.1 Notices. Notices under this Agreement must be in writing and will be deemed given (a) when delivered personally; (b) when sent by facsimile (with confirmation of receipt); (c) three (3) days after having been sent by registered or certified mail, postage prepaid with return receipt requested; or (d) one (1) day after deposit with a commercial express courier specifying next day delivery, with written verification of receipt. All notices will be addressed to the parties at the address set forth on the Order Form. Either party may change the address for notice by providing written notice to the other party in accordance with this Section.
12.2 Assignment. This Agreement will be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Customer may not transfer, sublicense or otherwise assign this Agreement or any of its rights or obligations hereunder without Cosential’s prior written consent, which consent will not be unreasonably withheld. Cosential may freely assign or transfer this Agreement.
12.3 Force Majeure. Cosential is not responsible for any delays, errors, failures to perform, interruptions or disruptions in the Hosted Services or the Professional Services caused by or resulting from any act, omission or condition beyond Cosential’s reasonable control, whether or not foreseeable or identified, including without limitation acts of God, strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disaster or Customer’s, User’s or any third party’s actions, hardware, software or communications equipment or facilities (each a “Force Majeure Event”).
12.4 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of Texas and of the United States of America located in the State of Texas (the “Texas Courts”) for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Texas Courts and agrees not to plead or claim in any Texas Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Texas Courts.
12.5 Independent Contractors; Severability; Waiver. Nothing contained in this Agreement is intended or is to be construed to create a partnership, joint venture or agency relationship between Cosential and Customer. If any provision of this Agreement is held invalid, illegal or unenforceable, such provision will be reformed only to the extent necessary and in such a manner to affect the original intention of the parties, and all remaining provisions continue in full force and effect. Any failure by either party to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent default or breach of the same or a different kind.
12.6 Compliance with Law. Customer will be responsible for ensuring that the Customer Content and its use thereof, and its use of the Hosted Services hereunder, is in compliance with all foreign, federal, state and local laws and regulations. Cosential will be responsible for ensuring that the Hosted Services and its use and storage of Customer Content, is in compliance with all foreign, federal, state and local laws and regulations.
12.7 Publicity. Customer agrees to allow Cosential to reference Customer and the general nature of the services provided to, and work performed for, Customer hereunder on Cosential’s website and in press releases and publicity-related materials and instances, including presentations to prospects, customers or investors, and public speaking engagements, subject to Cosential’s compliance with the terms of this Agreement including, but not limited to, those obligations contained in Sections 3.5(a) and 9 hereof.
12.8 Non-Solicitation. During the Term of this Agreement, and for a period of one (1) year thereafter, each party agrees not to solicit or recruit any of the other party’s employees or consultants with whom they came into contact in connection with this Agreement, or to otherwise interfere with such employee’s current employment or such consultant’s current assignment. The foregoing prohibition will not prohibit general solicitation such as job fairs or general advertising for available employment positions used in the ordinary course of either party’s business, consistent with past practices, nor will it apply to “cold calls” from employee search firms where neither the prospect, nor his/her position, nor his/her company has been identified to the search firm, directly or indirectly, by the prohibited party.
12.9 Export Restrictions. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE COSENTIAL TECHNOLOGY OR INFORMATION ABOUT THE COSENTIAL TECHNOLOGY, WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. CUSTOMER WILL NOT EXPORT THE COSENTIAL TECHNOLOGY OR INFORMATION ABOUT THE COSENTIAL TECHNOLOGY WITHOUT THE WRITTEN CONSENT OF COSENTIAL AND IN COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS.
SERVICE LEVEL REQUIREMENTS
Cosential acknowledges that the availability of the Hosted Services is a primary concern of Customer and strives to allay such concern through regular maintenance of the Hosted Services and related systems. Cosential acknowledges, however, that the Hosted Services are not error-free and may be prone to failure, which these Service Level Requirements are intended to address.
Nothing in this Schedule will prevent Cosential from modifying the features and functions of the Hosted Services from time to time in accordance with Section 4.5 of the Terms and Conditions.
Cosential will provide 99.5% Availability (as defined below) for the Hosted Services within Cosential’s Immediate Control (as defined below). For purposes hereof, “Availability” or “Available” is defined as the ability of Customer to access the Hosted Services through an Internet connection.
“Immediate Control” includes Cosential’s network services within the Cosential data center which extends to, includes and terminates at the Internet Service Provider circuit termination point on the router in Cosential’s data center (i.e., public Internet connectivity).
Specifically excluded from the definition of “Immediate Control” are the following:
- equipment, data, materials, software, hardware, services and/or facilities provided by or on behalf of Customer and Customer’s network services which allow Customer to access the Hosted Services. These components are controlled by Customer and their performance or failure to perform can impair or disrupt Customer’s connections to the Internet and the transmission of data;
- equipment, data, advertisements, materials, software, hardware, services and/or facilities provided by third party vendors or service providers of Customer;
- acts or omissions of Customer, its employees, contractors, agents, representatives, third party vendors or service providers or anyone gaining access to Cosential’s network at the request of Customer;
- issues arising from bugs or other problems in the software, firmware or hardware of third parties;
- delays or failures due to Force Majeure Event; and
- any outage, network unavailability or downtime outside the Cosential data center.
Availability is based on a weekly 7 day x 24 hour calculation. The calculation will be as follows: ((a – b) / a) x 100, where “a” is the total number of hours in a given calendar month, and “b” is the total number of hours that service is not Available in a given month. Specifically excluded from “b” in the calculation of the Availability measurement are (1) a service interruption caused by a security threat until such time as the security threat has been eliminated; (2) reasons of events which are outside Cosential’s Immediate Control; (3) use of unapproved or modified hardware or software by or on behalf of Customer; (4) issues arising from misuse of the Hosted Services by Customer or its agents, clients, or third party contractors; and/or (5) service interruption caused by Scheduled or Emergency Maintenance as described below.
Scheduled or Emergency Maintenance
Customer acknowledges that the Hosted Services and related systems may require regularly scheduled or emergency maintenance servicing. Cosential will use reasonable efforts to minimize any disruption of Customer’s business in connection with any scheduled maintenance hereunder. Unless otherwise published in advance, Cosential will perform scheduled maintenance according to the following schedule, which is subject to change:
During the 48-hour period commencing at 9:00 P.M. Central Time on the third Friday of every calendar month and ending at 9:00 P.M. Central Time the following Sunday.
Cosential may also perform maintenance services as reasonably required in connection with emergencies or similar occurrences, as and when they occur, including any maintenance required to protect (in Cosential’s sole judgment) the integrity of the Hosted Services and related systems, including the Customer Content, from a breach or threatened breach in security. Scheduled and emergency maintenance may require suspension of the Hosted Services. Cosential will use reasonable efforts to minimize the length and scope of such disruption.
Monitoring and Reporting
Cosential will monitor the status and availability of all components associated with the Hosted Services, exercising reasonable care in accordance with industry standards for hosting, and institute prompt corrective actions for all Hosted-Services-impacting issues encountered during the delivery of the Hosted Services.
If in any calendar quarter this Availability commitment is not met by Cosential and Customer was negatively impacted (i.e., attempted to log into or access the Hosted Services and failed due to the unscheduled downtime of the Hosted Services), Cosential shall provide, as the sole and exclusive remedy, a service credit equal to one month’s fee for the use of the Hosted Services.
In order to receive a credit under this service level commitment, Customer must request it simply by emailing Cosential at firstname.lastname@example.org, within five days of the end of the applicable quarter, all available details regarding the nature and severity of the non-compliance, the effect on Customer’s business operations, and any other information requested by Cosential. If Customer submits a credit request and does not receive a prompt automated response indicating that the request was received, Customer must resubmit the request because the submission was not properly received and will not result in a credit. Customers who are past due or in default with respect to any payment or any material contractual obligations to Cosential are not eligible for any credit under this Service Level Objective. The service credit is valid for up to two years from the quarter for which the credit was issued. Cosential shall calculate any service level downtime using Cosential’s system logs and other records.
This Availability Objective may be amended by Cosential in its discretion but only after providing thirty days advance notice. Notices will be sufficient if provided to a user designated as an administrator of your applicable account either: (a) as a note on the screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the registered email address provided for the administrator(s) for Customer’s account.
Any nonproduction accounts and other test environments are expressly excluded from this or any other Availability Objective.
Customer support for the Hosted Services can be reached through the Cosential Support Panel (accessed from the “Needs Help” icon in the Hosted Services), Email at email@example.com, Phone (800) 505-7089 x2 or a dedicated support engineer if appointed and is available from 7:00 a.m. to 7:00 p.m. Central Time, Monday through Friday, excluding federal holidays, for all support requests. Cosential has structured a response plan to address such requests in an efficient and timely manner, addressing the most critical issues first. Cases will be opened upon receipt of request or identification of issue, and incidents will be routed and addressed according to the severity levels defined as follows:
Security Levels and Error State Descriptions
- 1 – Critical Priority: Renders the Hosted Services inoperative, or causes the Hosted Services to fail catastrophically, i.e. Customer is unable to access the Hosted Services totally.
- 2 – High Priority: Affects the operation the Hosted Services and materially degrades Customer’s use thereof, i.e., Customer’s usage of the Hosted Services is slow, almost to the point of unusability or a module (such as Publisher) is not loading.
- 3 – Medium Priority: Affects the operation of the Hosted Services but does not materially degrade Customer’s use thereof, i.e., a bug in the Hosted Services that has a viable work-around.
- 4 – Low Priority: Causes only a minor impact on the operation of Customer, i.e., the Cosential User testing environment is not responding, or a bug is found in the application that is not critical to Customer’s day-to-day business.