THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF COBALT SOFTWARE AS A SERVICE.
IF YOU REGISTER FOR A FREE TRIAL FOR COBALT SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CLIENT" OR “YOU" OR “YOUR" SHALL
REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Cobalt direct competitor, except with Cobalt prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. It is effective between You and Cobalt as of the date of Your acceptance of this Agreement.
The parties hereby agree as follows :
Cobalt shall provide Client access to the components and modules of its proprietary interactive communication platform (the “Online Service(s)") described in the relevant Order Form subject to the terms and conditions set forth in this Agreement and the pricing provided in the Order Form.
Client shall pay the fees set forth in the Order Form (“Pricing"). All payments shall be made at subscription, and/or when adding users and/or when upgrading packages. Unless otherwise provided, Pricing does not include any value added or other taxes, levies or duties of any nature, all of which Client is responsible for paying, except for those relating to Cobalt’s net income or property. If Cobalt is legally obligated to collect or pay taxes for which Client is responsible, the appropriate amount shall be invoiced to and paid by Client, unless Client provides a valid tax exemption certificate.
3. Free Trial
If You register on Cobalt website for a free trial, Cobalt will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Cobalt at their sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATION MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO ELITE EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS" WITHOUT ANY WARRANTY.
Please review the applicable Service’s Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
Client shall in its discretion authorise certain of its employees, as well as employees at its affiliates or subsidiaries, and contractors to access that Service as users. Collectively, Client’s employees and contractors who access any Service as provided above are referred to as “User(s)". Client shall be responsible for any violation of the terms and conditions of this Agreement by the Users.
“Client Data" is all electronic data Client transmits to Cobalt in connection with the use of the Service. Client shall retain all ownership rights in any Client Data. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data. By purchasing the Service, Client represents that it has the right to authorise and hereby does authorise Cobalt and its Service Providers to collect, store and process Client Data as necessary for the provision of the Services and subject to the terms of this Agreement and subject to Cobalt’s liability for such third parties used. “Service Providers" shall mean communication carriers, data centers, collocation and hosting services providers, short messaging services (“SMS") providers and content and data management providers that Cobalt uses in providing the Service.
Client acknowledges that the Service is a passive conduit for the transmission of Client Data and any data submitted by users, and Cobalt shall have no liability for any errors or omissions or for any defamatory, libellous, offensive or otherwise objectionable or unlawful content in any Client Data or data submitted by contacts, or for any losses, damages, claims, suits or other actions arising out of or in connection with any data sent, accessed, posted or otherwise transmitted via the Service by Client or contacts.
Client is responsible for all activity occurring under Client’s account(s) and shall comply with all applicable Privacy Laws (as defined below) and all other applicable local, provincial, federal and foreign laws and regulations in connection with Client’s use of the Services, including its provision of Client Data to Cobalt.
Client shall not use the Service in a way that causes or could reasonably result in damages or adverse effect on Cobalt or the Service, including limiting data storage within the Services to that reasonably contemplated by the Services as delivered, or in any way that is not in accordance with applicable laws and regulatory requirements to which the Client is subjected. Client shall promptly notify Cobalt of any unauthorized use of any password or account or any other act or omission that would constitute a breach or violation of this Agreement.
“Privacy Laws" means all applicable local, provincial, federal and foreign laws, treaties and regulations regarding data protection and privacy. The Parties agree that for the purposes of this Agreement Client shall be the data controller and that Cobalt shall follow Client’s reasonable instructions in relation to the processing of Client Data. In handling any Client Data, Cobalt shall:
- treat Client Data only to the extent it is necessary to provide or facilitate the provision of Services, or otherwise fulfill Cobalt’s obligations under this Agreement, in accordance with any relevant
- implement and maintain appropriate technical and incidents which: (i) involve any accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure, or access of or to the Client Data; and/or (ii) in any way compromises the confidentiality, integrity, or availability of the Client Data (“Security Incident");
- where Cobalt becomes aware of any Security Incident: (i) notify the Client as soon as reasonably practicable; (ii) at its own cost, take all such steps as consequences of the Security Incident; (iii) keep the Client informed of the steps it is taking in accordance with the preceding sentence until the Security Incident is resolved; (iv) to the maximum extent permitted by the applicable law, refrain from communicating to any third party (including any individual or any regulator which enforces the applicable Privacy Law or any other applicable law) about the Security Incident without first conferring with the Client; and (v) provide all such assistance, information, and cooperation as the Client may reasonably require in connection with the Security Incident;
- procure that any of Cobalt’s personnel who actually handle Client Data while on-site at Client’s premises sign reasonable privacy and confidentiality undertakings which the Client may require such personnel to sign; and
- Provide all such assistance, information, and cooperation as the Client may reasonably require to comply with the applicable Privacy Law in respect of the Client Data including, where necessary and appropriate, by entering into such additional agreement as the Client may reasonably require Cobalt to enter into with the Client.
Unless earlier terminated as provided herein, this Agreement commences on the Effective Date, or the date on which the Client starts using the Services, whichever is earlier and continues until all Order Forms for Services granted in accordance with this Agreement have expired or been terminated. Unless earlier terminated as provided herein, the initial term of each Order Form shall be for the period set out on the applicable Order Form (the “Initial Term"). Unless terminated as described in Section 5, upon expiration of the Initial Term, each Order Form will renew automatically for subsequent renewal terms of equal duration to the Initial Term (each a “Renewal Term", and together with the Initial Term, the “Term"), unless either Party notifies the other Party of its intention not to renew the Order Form at least 30 days prior to the end of the Term.
6.1. Either Party may terminate this Agreement upon the other Party’s material breach of this Agreement, provided that, (i) where such breach is capable of remedy, the non-breaching Party sends written notice to the breaching Party describing the breach in reasonable detail; (ii) the breaching Party does not remedy the breach within thirty (30) days following its receipt of such notice (the “Notice Period"); and (iii) following the expiration of the Notice Period, the non-breaching Party sends a second written notice to the breaching Party indicating its election to terminate this Agreement.
6.2. If Client fails to pay any undisputed fees or charges due within thirty (30) days of their due date, Cobalt may terminate this Agreement or suspend the Service in Cobalt’s sole discretion pursuant to the notice provisions above. Termination for nonpayment shall not relieve Client of its outstanding obligations (including payment) under this Agreement. If Cobalt suspends the Service, Client’s account shall not be reactivated until Client is in compliance with this Agreement.
6.3. Cobalt may suspend the Service or any portion thereof for (i) emergency network repairs, threats to, or actual breach of network security; (ii) any substantive violation by Client of Section 3 or 6.2; or (iii) any legal, regulatory, or governmental prohibition affecting the Service. In the event of a suspension under (i) or (iii), Cobalt shall use its best efforts to notify Client through its Client portal and/or via email prior to such suspension and shall reactivate any affected portion of the Service as soon as possible. In the event of suspension under (ii) above, Cobalt will notify Client as soon as reasonably practicable.
6.4 If Cobalt terminates this Agreement or any Order Form herein they will refund to Client on a pro rata basis any prepaid unused fees paid.
7. Proprietary Rights
7.1. Subject to the terms and conditions of this Agreement, Cobalt hereby grants to Client, during the term of this Agreement, a non-exclusive, non-transferable, non-sub-licensable right to use the Service.
Client shall use the Service solely for its internal business purposes and shall not make the Service available to, or use the Service for the benefit of, any third party except as expressly set forth in this Agreement. Client shall not (i) sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services except as expressly set forth herein; (ii) modify or make derivative works based upon the Services; (iii) reverse engineer the Services; (iv) create Internet “links" to or from the Service, or “frame" or “mirror" any content forming part of the Service, other than on Client’s own intranets for its own internal business purposes; (v) remove, obscure or alter any proprietary notices or labels on the Software or any portion of the Service; (vi) use, post, transmit or introduce any device, software or routine (including viruses, worms or other harmful code) which interferes or attempts to interfere with the operation of the Service; or (vii) access the Service for purposes of monitoring Service availability, performance or functionality, or for any other benchmarking or competitive purposes. Client shall not and shall not attempt to access the Cobalt systems programmatically except using the appropriate username and password, and using application programming interface (API) calls permitted by Cobalt from time to time.
Other than as expressly set forth in this Agreement, Cobalt grants to Client no license or other rights in or to the Service, software or any other proprietary technology, material or information made available to Client through the Service or otherwise in connection with this Agreement (collectively, the “Cobalt Technology"), and all such rights are hereby expressly reserved. Cobalt (or its licensors where applicable) owns all rights, title and interest in and to the Service, and any Cobalt Technology, and all patent, copyright, trade secret and other intellectual property rights (“IP Rights") therein, as well as (i) all feedback and other information (except for the Client Data) provided to Cobalt by Users, Client and contacts, and (ii) all transactional, performance, derivative data and metadata generated in connection with the Services.
8. Confidential Information
As used herein, “Confidential Information" means all information of a Party (“Disclosing Party") disclosed to the other Party (“Receiving Party"), either orally, electronically, in writing, or by inspection of tangible objects (including, without limitation, documents or prototypes), 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. Confidential Information includes without limitation, all Client Data, all Cobalt Technology, and either Party’s business and marketing plans, technology and technical information, product designs, reports and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than performance or enforcement of this Agreement without the Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using no less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any breach of confidentiality of Disclosing Party’s Confidential Information. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request and to the extent practicable, destroy all materials containing such Confidential Information. Notwithstanding the foregoing, either Party may retain a copy of any Confidential Information if required by applicable law or regulation, in accordance with internal compliance policy, or pursuant to automatic computer archiving and back-up procedures, subject at all times to the continuing applicability of the provisions of this Agreement.
9. Warranties, Disclaimer
Cobalt shall provide the Services in accordance with the functionality and specifications set forth on the relevant product/system. Cobalt warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement. Cobalt shall provide 24X7X365 customer support in accordance with its most recently published Support Services Guide available through the Cobalt Administration Panel. To the extent professional services are provided, Cobalt shall perform them in a professional manner consistent with industry standards. THE FOREGOING REPRESENTS THE ONLY WARRANTIES MADE BY COBALT HEREUNDER AND COBALT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
NEITHER COBALT NOR ITS LICENSORS OR SERVICE PROVIDERS WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION. CLIENT ACKNOWLEDGES AND AGREES THAT THE USE OF SMS SERVICES AND COBALT APPLICATION COMMUNICATIONS, AS A MEANS OF SENDING MESSAGES INVOLVES A REASONABLY LIKELY POSSIBILITY FROM TIME TO TIME OF DELAYED, UNDELIVERED, OR INCOMPLETE MESSAGES AND THAT THE PROCESS OF TRANSMITTING SMS MESSAGES AND COBALT APPLICATION COMMUNICATIONS CAN BE UNRELIABLE AND INCLUDE MULTIPLE THIRD PARTIES THAT PARTICIPATE IN THE TRANSMISSION PROCESS, INCLUDING MOBILE NETWORK OPERATORS AND INTERMEDIARY TRANSMISSION COMPANIES. CLIENT FURTHER UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT IT ASSUMES ALL RISK ASSOCIATED WITH ANY SUCH DELAY, LACK OF DELIVERY OR INCOMPLETENESS.
Cobalt shall defend, indemnify and hold Client harmless from and against any Claim against Client alleging that the Service as contemplated hereunder infringes an issued patent or other IP Right in a country in which the Service is provided to Client.
Cobalt’s obligations under this Section 10 are contingent upon the Client (a) promptly giving notice of the Claim to Cobalt once the Claim is known; (b) giving Cobalt sole control of the defense and settlement of the Claim (provided that Cobalt may not settle such Claim unless such settlement unconditionally releases the Client of all liability and does not adversely affect the Client’s business or service); and (c) timely providing Cobalt all available information and reasonable assistance. If (x) any aspect of the Service is found or, in Client’s or Cobalt’s reasonable opinion is likely to be found, to infringe upon the IP Right of a third party as specified above, or (y) the continued use of the Service is enjoined, then Cobalt will promptly and at its own cost and expense at the Client’s option: (i) obtain for Client the right to continue using the Service; (ii) modify such aspect of the Service so that it is non-infringing; or (iii) replace such aspect of the Service with a non-infringing functional equivalent. If, after all commercially reasonable efforts, Cobalt determine in good faith that options (i) – (iii) are not feasible, Cobalt will remove the infringing items from the Service and refund to Client on a pro-rata basis any prepaid unused fees paid for such infringing element. Cobalt shall have no obligation or liability for any claim pursuant to this Section to the extent arising from: (i) the combinations, operation, or use of the Service supplied under this Agreement with any product, device, or software not supplied by Cobalt to the extent the combination creates the infringement; (ii) the unauthorized alteration or modification by Client of the Service; or (iii) Cobalt’s compliance with Client’s designs, specifications, requests, or instructions pursuant to an engagement for Cobalt professional services relating to the Service to the extent the claim of infringement is based on the foregoing.
11. Liability Limits
All warranty conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement, unless otherwise set out in this Agreement.
Subject to clause 3, neither Party shall be liable for any indirect or consequential damages.
Nothing in this Agreement shall limit or exclude liability for death or personal injury caused by negligence, fraud or any other liability, which may not properly be limited or excluded by applicable law.
Subject to obligations in clauses 10.2 and 10.3, Client’s aggregate liability under or in connection with this Agreement shall not (whether in tort, contract, breach of statutory duty or otherwise) exceed a sum equal to the amount actually paid by the Client to Cobalt hereunder during the 12 months period prior to the event giving rise to such liability, and for Cobalt such liability shall not exceed the greater of a sum equal to the amount actually paid during the 24 months period prior to the event giving rise to such liability or 1 million $USD, except Cobalt’s obligations as per clause 3.4, 7 and 9.1. Both Parties understand and agree that these liabilities limits reflect the allocation of risk between the Parties and are essential elements of the basis of the bargain, the absence of which would require substantially different economic terms.
12. Governing Law and Jurisdiction
This Agreement will be governed by the laws of the Province of Quebec, excluding its rules regarding conflicts of law; and
Venue for any dispute hereunder shall be a court of competent jurisdiction located in the City of Montreal, in the Province of Quebec and the parties irrevocably submit to the exclusive jurisdiction of such courts.
13.1 As additional protection for Party’s proprietary information, for so long as this Agreement remains in effect, and for one year thereafter, either Party agrees that it shall not, directly or indirectly, solicit, hire or attempt to solicit any employees of the other Party; provided that a general solicitation to the public for employment is not prohibited under this section.
13.2 Neither Party shall be responsible for performance under this Agreement to the extent precluded by circumstances beyond that Party’s reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, labour problems, computers, telecommunications, Internet service providers or hosting facility failures, or delays involving hardware, software or power systems, and network intrusions or denial of service attacks. The Service delivers information for supported contact paths to public and private networks and carriers, but cannot guarantee delivery of the information to the recipients. Final delivery of information to recipients is dependent on and is the responsibility of the designated public and private networks or carriers. Client acknowledges and agrees that territories outside Canada may have territorial restrictions resulting from applicable law, telecommunications or Internet infrastructure limitations, telecommunications or Internet services provider policies, or communication device customization that may inhibit or prevent the delivery of certain SMS, text or other notifications, or restrict the ability to place or receive certain calls such as outbound toll free calls. Cobalt shall have no liability to the extent such restrictions impede the Service.
13.3 The failure of either Party hereto to enforce at any time any of the provisions or terms of this Agreement shall in no way be considered to be a waiver of such provisions. If any provision of this Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed deleted or revised, and the remaining provisions shall continue in full force and effect to the maximum extent possible so as to give effect to the intent of the parties.
13.4 Neither party may assign this Agreement to any third party except upon the other Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.
13.5 Legal notices (i.e., claimed breach or termination) to be provided under this Agreement shall be delivered in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by registered prepaid post to the other party as set forth on the signature page hereto. All legal notices shall be deemed to have been given upon receipt or, if under (c) two (2) business days after being deposited in the mail. Either party may change its address by giving notice of the new address to the other party pursuant to this Section and identifying the effective date of such change.
13.6 This Agreement is not intended to and does not create rights in favour of any person other than the Parties, save that each Client’s Group Company will be entitled to enforce this Agreement. Client’s Group Company means (i) a parent undertaking of that party; (ii) a subsidiary undertaking of that party; or (iii) a subsidiary undertaking of a parent undertaking of that party; or any company which is a joint venture not wholly-owned or majority-owned (directly or indirectly) by the Client.
13.7 Both Parties understand that it is the policy of both Parties to never tolerate unethical behaviour either in their own activities or in those with whom the Parties seek to do Business. Each Party confirms that its policy shall comply with all applicable laws, statutes, and regulations, relating to anti-bribery and anti-corruption, including but not limited to, the Corruption of Foreign Public Officials Act (Canada).
13.8 Neither Party will tolerate fraud nor dishonest acts. Any fraudulent, dishonest or other such illegal act may be treated as a material breach of this Agreement, if it has a significant impact on the Agreement or the services. Fraud or dishonest acts may include fraud events that could cause damage to a Party’s reputation, regulatory requirements, assets or client servicing relationships. Fraud or dishonest acts may also include: manipulation of records; theft and misappropriation of funds or property; misuse of information, records and equipment; or bribes and inappropriate payments.
13.9 This Agreement, including its Schedules constitute the entire agreement between the Parties and supersedes all other agreements and understandings between the Parties, oral or written, with respect to the subject matter hereof, including any confidentiality agreements. This Agreement shall not be modified or amended except by a writing signed by both Parties. ANY NEW TERMS OR CHANGES INTRODUCED IN A PURCHASE ORDER OR OTHER DOCUMENT ARE VOID AND OF NO FORCE OR EFFECT. COBALT’S ACKNOWLEDGEMENT OF RECEIPT OF SUCH DOCUMENT OR ACCEPTANCE OF PAYMENT SHALL NOT CONSTITUTE AGREEMENT TO ANY TERMS OTHER THAN THOSE SET FORTH IN THIS AGREEMENT. Any right, obligation or condition that, by its express terms or nature and context is intended to survive the termination or expiration of this Agreement, shall survive any such termination or expiration hereof. This Agreement may be executed in one or more counterparts, all of which together shall constitute one original document. A copy of the original shall be as effective and enforceable as the original.