CoSo Cloud LLC, an AASKI company Terms of Service
Last Updated Dec 12, 2018
These CoSo Cloud Terms of Service and Conditions are between CoSo Cloud LLC, an AASKI company and its affiliates (collectively, “CoSo Cloud”), and “you” (collectively, the “Parties”).
You agree that this Agreement (defined below) is like any written negotiated agreement signed by you. IF YOU WISH TO USE THE SERVICE IN YOUR CAPACITY AS AN EMPLOYEE, YOU MUST HAVE THE ABILITY TO BIND YOUR EMPLOYER. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY ON WHOSE BEHALF THE SERVICE IS USED: FOR EXAMPLE, YOUR EMPLOYER.
You may have another written agreement directly with CoSo Cloud that supplements or supersedes all or portions of this agreement (a “Separate Agreement”). If you have entered into a Separate Agreement with CoSo Cloud, this Agreement does not apply unless specifically referenced in and incorporated by such Separate Agreement.
- “Add-On” means additional products and services sold or licensed to you from time to time pursuant to an Order Form.
- “Appointee” means the authorized representative of your organization who administers various functions of the Service on your behalf.
- “Communications Services” means the communications services CoSo Cloud provides you through use of Adobe Connect, or similar software that include functionalities such as video and web conferencing, and mobile device integration.
- “Content” means all audio, video, multimedia, data, text, images, documents, computer programs, and any other information or materials uploaded by or on behalf of you in connection with your use of the Service.
- “Event” means a CoSo Cloud web event.
- “General Services” means CoSo Cloud Service offerings, including Adobe® Connect managed services, Adobe hosting services, audio conferencing services, professional services, other Add-Ons and the CoSo Cloud Web site, that are not part of the Communications Services.
- “License Metrics” means terms set forth in an Order Form describing the scope of your right to use the Service.
- “Meeting” means CoSo Cloud Service offerings using Adobe® Connect Professional, or other meeting services, as applicable.
- “Meeting Attendees” means individuals who attend an online meeting or telephone conference enabled by the Service and hosted by you.
- “Order Form” means the cover sheet to this Agreement or any subsequent order form for additional products or services that has been accepted by CoSo Cloud.
- “Participant” means a third party, including Meeting Attendees and Appointees, who interacts with the Service as a result of such party’s relationship with or connection to you.
- “Service” means individually and collectively, the CoSo Cloud service, including the Communications Services and General Services.
2. Use of the Service.
- Provision of the Service. Subject to your compliance with the terms and conditions of this Agreement, CoSo Cloud grants to you a non-exclusive, non-transferable, revocable right to access and use the Service according to the terms and conditions of this Agreement and the applicable License Metrics described in each Order Form. Each Order Form between you and CoSo Cloud will be governed by the provisions of this Agreement.
- Upgrades. CoSo Cloud, LLC provides flexible upgrade scheduling for its customers. When requested, CoSo Cloud will upgrade customers to the most current stable version supported by CoSo Cloud. Any upgrade version requested that is not part of CoSo Cloud’s current, standard deployment will require additional fees. Non-standard deployments are inclusive of Adobe Connect versions not supported by CoSo Cloud, not CoSo Cloud’s current standard, and/or customized environments. CoSo Cloud reserves the right to upgrade any customer whose Connect version is older than 18 months. Additional fees may apply for maintaining older versions.
- Capacity. CoSo Cloud LLC customers will be provided with 1 Terabyte of Storage. Additional storage, system sizing, and bandwidth needs will be agreed upon during the initial agreement. Additional capacity, may be purchased as needed.
- Authority to Use Service. You represent and warrant that you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder including having a valid license to use the software applications that generate Content, and the right to submit Content and your or a Participant’s Personal Data in connection with the Service. Otherwise, you are not permitted to submit such Content or Personal Data to CoSo Cloud or the Service.
- Access to Service. You acknowledge that your ability to access the Service may require the payment of third party fees (such as regulatory fees, telephone toll charges, ISP, or airtime charges) and that you are responsible for paying such fees. These fees may be in addition to any charges, fees, or other payments included in your License Metrics. CoSo Cloud is not responsible for any equipment you may need to be able to access the Service.
- Log-In Credentials. To gain access to and use the Service, you may be required to create a log-in ID and password (“Log-In Credentials”). You are responsible for all activity occurring under your Log-In Credentials, and you must keep your Log-In Credentials confidential and not share your Log-In Credentials with third parties. CoSo Cloud has no obligation or responsibility with regard to your use, distribution, disclosure, or management of Log- In Credentials. Notwithstanding the foregoing, CoSo Cloud may require you to change your Log-In Credentials CoSo Cloud believes your Log-In Credentials are insecure or pose a risk to the Services.
- Trial Use. In addition to the other terms of this Agreement, if you are a trial user of the Service, your right to access and use the Service is limited as provided in the e-mail communication from CoSo Cloud acknowledging your right to use the Service, or as provided in the Web pages describing trial use of the Service. This trial Service might be offered by CoSo Cloud at a later time with different features, for a fee, or not at all, as determined by CoSo Cloud in its sole discretion. In order to maintain a consistent quality of service, CoSo Cloud reserves the right to temporarily suspend trial access to the Service as needed.
- Termination of Trial Service. Your right to use the Service on a trial basis shall terminate immediately upon expiration of the time period granted at the time you subscribed to the Service on a trial basis. In addition, CoSo Cloud reserves the right, for any reason in its sole discretion without prior notice, to discontinue or suspend your trial use, and to terminate your trial account. Your rights and the rights of Participants to access Content submitted to your account and processed by the Service shall terminate immediately upon termination of your right to use the Service.
- Use of the Service.
- Communications Services Generally. As part of the Service, you may choose to use Communications Services, which may include telephone, video and web conferencing, and mobile device integration. Your ability to use these Communications Services is subject to this Agreement and the applicable License Metrics, as well as any applicable policies or terms that the CoSo Cloud may apply from time and any applicable software product license agreements, which can be found on the relevant software vendor websites.
- Availability and Compatibility of Required Third Party Equipment and Services. You may not be able to use the Service, if: (A) your equipment fails; (B) the power required to operate your computer, router or modem, if applicable, fails; (C) your computer experiences hardware or software problems or viruses; (D) your hardware or software is improperly installed; or (E) you are blocked or otherwise unable to access theCoSo Cloud network, such as by certain fax machines or firewalls. By using the Service, you acknowledge that the Service may be limited in certain circumstances and may not always be available.CoSo Cloud shall not be liable for any (I) errors in transmission, (II) failure to establish any connections or (iii) failure of, or your inability to use the Service.
- Service Distinctions. You acknowledge and agree that the Communications Services do not constitute or include traditional telephone services. Important distinctions exist between traditional telephone services and the Communications Services and the Communications Services may be subject to different regulatory treatment from traditional telephone services. This treatment may limit or otherwise affect your rights of redress before federal, state or local telecommunications regulatory authorities.
- Connection Quality. You acknowledge that two-way VoIP conversations between your location and CoSo Cloud’s data centers consume Internet bandwidth and that in order to deliver high voice quality, the Internet connection must be sized appropriately for your usage environment. You further acknowledge that disruptions in the public Internet and in the ability of you or CoSo Cloud (or any affiliate or service provider thereof) to maintain sufficient Internet bandwidth may affect the quality of any connection between you and CoSo Cloud. You also acknowledge that proper Virtual Local Area Network (“VLAN”) and network configuration is essential to ensure high voice quality and you understand that you must appropriately configure your VLAN or other network in line with OEM-recommended best practices or employ other measures as necessary to ensure high voice quality. CoSo Cloud will not be held responsible or liable for poor voice quality due to insufficient Internet bandwidth or improper VLAN configurations at your location. You also acknowledge that other systems and applications sharing the same Internet connection that the voice conversations are using may affect the voice quality of those voice conversations. In order to achieve the highest level of voice quality. CoSo Cloud strongly recommends that you use a dedicated Internet connection for voice traffic. CoSo Cloud will not be held responsible or liable for any poor voice quality or Communications Services-related issues that may arise from multiple application routing over a shared Internet connection.
- Limitations. Without limiting the foregoing, the Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, CoSo Cloud, its affiliates, suppliers, licensors, and resellers specifically disclaim any express or implied warranty of fitness for such purposes.
3. Invoicing, Payment And Records.
- Payment Terms. All fees due under this Agreement are payable in U.S. dollars only. Payment terms for the Service and any Third Party Services will be set forth on each Order Form. If not set forth, all fees for products or services will be due thirty days from the date of CoSo Cloud’s invoice. All fees are non-cancelable and non-refundable, except as expressly provided in this Agreement. You will reimburse CoSo Cloud for all reasonable costs incurred (including attorneys’ fees) in collecting past due amounts. You will be responsible for any taxes, duties or withholdings based on your order (excluding taxes based on CoSo Cloud’s income) that are timely invoiced.
- Audit. You agree to keep all usual and proper records and books of account and all usual and proper entries relating to its use of the Service. CoSo Cloud may cause an audit and/or inspection to be made of the applicable records and facilities in order to verify compliance with this Agreement. Any such audit shall be conducted by an auditor selected by CoSo Cloud. Any audit and/or inspection shall be conducted during regular business hours at your facilities with advance notice of at least 10 days. You agree to provide CoSo Cloud’s designated audit or inspection team access to the relevant records and facilities and prompt and reasonable cooperation in the audit. You shall pay CoSo Cloud the full amount of any underpayment revealed by the audit plus interest from the date such payments were due under the terms of this Section 10. Notwithstanding the foregoing, if such audit reveals an underpayment by more than five percent (5%) for the period covered by the audit report, you shall pay all of the fees and costs associated with such audit and the amount underpaid with interest from the date such payment was due pursuant to this Section 10. This provision does not limit any additional rights and remedies at law or in equity that CoSo Cloud may have due to unauthorized use of the Service.
4. Ownership of the Service and Marks
- You acknowledge that CoSo Cloud and its licensors own all right, title, and interest in: (i) the Service; (ii) any CoSo Cloud software provided in connection with the Service; and (iii) all graphics, logos, service marks, and trade names, including third-party names, product names, and brand names used by CoSo Cloud in connection with the Service (the “Marks”). The terms “purchase” and “sale” in reference to the Service notwithstanding, it is expressly agreed by the parties that title to software provided through the Service does not pass to you and your rights with respect to such software will only be that of a licensee. You are welcome to send suggestions on improving the Service, and in doing so, you acknowledge and agree that such suggestions will become the property of CoSo Cloud, and CoSo Cloud has no obligation to compensate you for such suggestions.
- You or your respective licensors, as applicable, own all right, title, and interest in and to any graphics, logos, service marks, and trade names provided by you in connection with the Service.
- You may upload Content to the Service in connection with your use of the Service. CoSo Cloud does not verify, endorse, or claim ownership of any Content, and you retain all right, title, and interest in and to the Content. Your Content and the Content of Participants may be stored on CoSo Cloud’s servers at your request, as necessary for CoSo Cloud to provide the Service and in accordance with CoSo Cloud’s then-current storage policies. You are solely responsible for Content including making and keeping backup copies of Content. CoSo Cloud shall use commercially reasonable efforts to block the uploading of Content to the Service that contains viruses detected by using industry standard virus detection software. Notwithstanding anything to the contrary herein, CoSo Cloud has no responsibility or liability for the deletion or accuracy of Content, the failure to store, transmit or receive transmission of Content (whether or not processed by the Service), or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. Certain features of the Service enable you to specify the level at which such Service restricts access to your Content. You are solely responsible for applying the appropriate level of access to your Content.
6. Third Party Services and Links
- Links. CoSo Cloud may provide links to other Web sites or resources as part of the Service as a convenience to you. CoSo Cloud is not responsible for the contents, products or services on any third-party site, and the inclusion of any link does not imply that CoSo Cloud endorses the content on such third-party sites. You may visit such third party sites solely at your own risk.
7. Acceptable Use Policy.
- You represent and warrant that you are the owner, licensor, or authorized user of all Content or that you have the right to upload Content to the Service. You represent and warrant that:
- You agree that you will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that:
- advocates, promotes, incites, instructs, assists or otherwise encourages violence or any illegal activities;
- infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or CoSo Cloud, or any rights of publicity or privacy of any party;
- attempts to mislead others about your identity or the origin of a message or other communication, or impersonates or otherwise misrepresents your affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate;
- promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, libelous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity;
- is harmful to minors;
- contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Personal Data, or property of another; or
- violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
- You further agree not to:
- introduce a virus, worm, Trojan horse or other harmful software code or similar files that may damage the operation of a third party’s computer or property or information;
- use the Service in any manner that could damage, disable, overburden, or impair any CoSo Cloud server, or the network(s) connected to any CoSo Cloud server or interfere with any other party’s use and enjoyment of the Service;
- attempt to gain unauthorized access to service, materials, other accounts, computer systems or networks connected to any CoSo Cloud server or to the Service, through hacking, password mining, or any other means;
- obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service;
- host, on a subscription basis or otherwise, the Service, including any related application, (A) to permit a third party to use the Service to create, transmit, or protect any content, or (B) to conduct conferences, online meeting services, or training sessions for a third party;
- engage in any systematic extraction of data or data fields, including without limitation e-mail addresses;
- disclose, harvest, or otherwise collect Personal Data, including e-mail addresses, or other private information about any third party without that party’s express consent;
- transmit junk mail, spam, surveys, contests, pyramid schemes, chain letters, or other unsolicited e-mail or duplicative messages;
- sell, lease, or rent access to or use of the Service, or otherwise transfer any rights to use the Service under this Agreement (including without limitation, on a timeshare or service bureau basis);
- defraud, defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others; or
- upload, or otherwise make available, files that contain images, photographs, software, or other material protected by intellectual property laws, including, for example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consent to do the same.
- Misuse of Service. You agree to notify CoSo Cloud immediately if you become aware at any time during the Term that the Service is being misused or used by an unauthorized user.
- Investigations. CoSo Cloud does not generally monitor user activity occurring in connection with the Service. If CoSo Cloud becomes aware, however, of any possible violations by you of this Section or any other provision of this Agreement, CoSo Cloud reserves the right to investigate such violations, and CoSo Cloud may, at its sole discretion, suspend or terminate your access to the Service or change, alter or remove Content, in whole or in part. If, as a result of such investigation, CoSo Cloud believes that criminal activity has occurred, CoSo Cloud reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. CoSo Cloud is entitled, except to the extent prohibited by applicable law, to disclose any information, including Personal Data, about you in CoSo Cloud’s possession in connection with your use of the Service to law enforcement or other government officials, as CoSo Cloud in its sole discretion believes to be necessary or appropriate.
8. Confidentiality and Personal Data.
- Participant Personal Data. As between CoSo Cloud and you, you are the Data Controller and CoSo Cloud is the Data Processor of all Personal Data of Participants submitted through the Service. You shall have sole responsibility for any and all Personal Data of Participants used and submitted in connection with the Service, and CoSo Cloud shall have no responsibility in connection thereto. You shall comply with all data protection and privacy laws and rules applicable to Personal Data of Participants. You shall defend, indemnify, and hold harmless CoSo Cloud from any claim, suit or proceeding brought against CoSo Cloud by any third party (including Participants) in connection with any acts or omissions with regards to Content or Personal Data submitted to the Service.
- Confidentiality. “Confidential Information” means (i) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information which is designated as “confidential,” “proprietary” or some similar designation and (ii) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the materials described in clause (i). Information disclosed orally shall be considered Confidential Information only if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement. Confidential Information includes, without limitation, the Service, related documentation, specifications, pricing, disclosures in connection with the Service and the terms and conditions of this Agreement. Confidential Information shall remain the sole property of the disclosing party or its licensors.
- Nondisclosure. The parties agree, both during the term of this Agreement and for a period of five (5) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 8(c) shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
- Exceptions to Confidentiality. Information will not be considered as Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (i) lawfully available to the public through no act or omission of the receiving party; (ii) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (iii) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) independently developed by the receiving party.
9. Service Level Agreement.
- Service Availability Objective. CoSo Cloud’s objective is to make reasonable efforts to provide Service Availability of 99.9% as measured on a monthly basis for single-server deployments, 99.99% as measured on a monthly basis for multi-server/clustered deployments (in each case “Service Availability Objective”). Service Availability is defined as the time that the Service is capable of receiving, processing, and responding to requests and calculated as a percentage by dividing the number of minutes the Service is available during the applicable month minus the total number of minutes of Downtime (if applicable) experienced by all users in a given calendar month, all by the number of total minutes in the applicable month, excluding (a) Scheduled Maintenance, (b) Emergency Maintenance; (c) Customer Error Incidents, (d) Force Majeure, (e) Adobe Product Defects, (f) factors outside of CoSo Cloud reasonable control, and (g) errors caused by Customers exceeding provisioned capacity.
- Remedy for Failure to Achieve Adobe Connect Service Availability Objective. At your request CoSo Cloud will calculate your Service Availability during a given calendar month. In the event that the Service Availability Objective was not met in a given month, then for each day in such month that the duration of the Service unavailability exceeds four (4) continuous hours, you are entitled to receive a one (1) day Service credit up to a maximum of 30 days, subject to the Agreement and requirements of this Section 9 (Service Level Agreement).
- Service Credit Claims. CoSo Cloud will only consider the Service unavailable if you opened a trouble ticket relating to the Service unavailability with the CoSo Cloud customer support department within three (3) business days of the Service unavailability. To obtain a credit for CoSo Cloud’s failure to meet the Service Availability Objective, you must request such credit in writing no later than the calendar month following the month of the Service unavailability giving rise to your credit request. In the event of a conflict between the data in your records and CoSo Cloud’s records, the data in CoSo Cloud’s records shall prevail. If you purchased the Service on a monthly or pay-per use basis, you are not eligible for any credits arising from or relating to Service unavailability. Any Service credit due hereunder will be applied to your account at the conclusion of the then-current term for the applicable Service. The Service credit offered in this Section 9 shall be your sole and exclusive remedy for any failure of the Service or any failure of CoSo Cloud to meet the Service Availability Objective. Any unused Service credits shall expire upon termination of this Agreement.
- “Scheduled Maintenance” is defined as any maintenance performed during CoSo Cloud’s standard maintenance windows: (i) US Data Centers: 21:00 Friday EST to 03:00 EST Monday inclusive, and weekdays between 21:00 EST and 03:00 EST; (ii) European Data Centers: 21:00 Friday GMT to 03:00 GMT Monday inclusive, and weekdays between 21:00 GMT and 03:00 GMT; (iii) Asian Data Centers: 21:00 Friday HKT to 03:00 HKT Monday inclusive, and weekdays between 21:00 HKT and 03:00 HKT; or (iv) Any other maintenance of which you are given at least forty-eight (48) hour advance notice. CoSo Cloud may perform maintenance on some or all of the Service in order to upgrade hardware or software that operates or supports the Service, implement security measures, or address any other issues it deems appropriate for the continued operation of the Service.
- “Emergency Maintenance” is defined as any period of time in which your environment is modified for the purposes of stabilizing or securing the system in response to immediate threats. CoSo Cloud’s will make all reasonable attempts to advance notify prior to Emergency Maintenance periods.
- “Customer Error Incident” is defined as any Service unavailability resulting from your applications, Content, or your equipment, or the acts or omissions of any user of the Service.
- “Force Majeure” is defined as acts of God, terrorism, labor action, fire, flood, earthquake, governmental acts, orders, or restrictions, denial of service attacks and other malicious conduct, utility failures, or any other cause of Service unavailability that was beyond CoSo Cloud’s reasonable control.
10. Term and Termination.
- Term. This Agreement will continue until terminated in accordance with the provisions below. Individual orders will continue for the periods specified in the applicable Order Form(s) and renewal provisions. If an Order Form does not provide an initial term or renewal provisions, each order will be for a one-year period and will renew automatically renew for additional one-year periods unless either party notifies the other in writing at least thirty (30) days prior to expiration of the then-current term of its intent not to renew.
- By CoSo Cloud. CoSo Cloud may at any time and upon written notice to you terminate this Agreement and your access to the Service, or suspend or restrict your access to the Service in whole or in part, if:
- you breach this Agreement and do not cure such breach within thirty business days of receiving written notice of the breach from CoSo Cloud; or
- immediately if CoSo Cloud determines in its sole and exclusive judgment that terminating your access to the Service is advisable for security reasons, to protect CoSo Cloud from liability, or for the continued normal and efficient operation of the Service.
- Effect of Termination. Upon termination of this Agreement, you must immediately cease using the Service. CoSo Cloud reserves the right to delete any data files associated with Content, Personal Data, or your or use of the Service upon termination of the Service. The following Sections of this Agreement shall survive termination of this Agreement: 1, 3, 10(c), 7, 8, 11, 12 and 13.
11. Disclaimer of Warranties
- THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE BASIS” “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, COSO CLOUD, ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, RESELLERS, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICE, THIRD PARTY SERVICES AND ADD-ONS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COSO CLOUD DOES NOT WARRANT OR REPRESENT THAT THE SERVICE WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT COSO CLOUD’S SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT COSO CLOUD’S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR CONTENT BY THIRD PARTIES.
12. Limitation of Liability
- NEITHER COSO CLOUD NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, ANY THIRD PARTY SERVICE OR ADD-ON (INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, BUSINESS INTERRUPTION, OR THE LIKE), AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF COSO CLOUD OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- COSO CLOUD’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $100 AND THE AMOUNT PAID BY YOU FOR THE SERVICE IN THE LAST TWELVE (12) MONTHS, IF ANY. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. COSO CLOUD’S SUPPLIERS SHALL HAVE NO LIABILITY TO YOU FOR ANY REASON.
- Export Control Laws. The export and re-export of certain software and Content are controlled by the United States Export Administration Regulations, and such software and Content may not be exported or re-exported to Cuba, Iran, Libya, North Korea, Sudan, Syria, or any country to which the United States embargoes goods. In addition, certain software and Content may not be distributed to individuals who are on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. You warrant that you are not a national of Cuba, Iran, Libya, North Korea, Sudan, Syria or any country to which the United States embargoes goods, and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. You further warrant that you will abide by U.S. and other applicable export control laws.
- Open Source Notice. CoSo Cloud may distribute third party open source software programs with the Software either incorporated into the Software or provided separately. These third party programs are subject to their own additional license terms, none of which require notice, attribution, payment, disclosure or license back of any Customer information. A list of open source software programs delivered with the Software can be found in the readme.txt file in the Documentation.
- Third Party Software Licenses. These Terms of Service are different from the software product license agreements, which can be found on software vendor websites, including the Adobe Connect EULA found here.
- Language. It is the express wish of the Parties that the Agreement and all related documents have been drawn up in English and that the English version of this Agreement shall be the sole version used in interpreting and enforcing this Agreement.
- Construction. This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
- Integration; Amendment; Enforcement of Rights. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the parties to this Agreement. The failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of any rights of such party.
- Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
- Headings. Headings contained in this Agreement are for convenience of reference only and do not form part of this Agreement. A word importing the singular includes the plural and vice versa. Gendered pronouns are used for convenience and are intended to refer the masculine or feminine, as applicable.
- Assignment. This Agreement is personal to the Customer originally licensed and may not be assigned, whether by operation of law or otherwise, except that either party may assign this Agreement or any Software license to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party or an applicable business unit. Any other purported assignment shall be void.
- Notices. Every notice or other communication required or contemplated by this Agreement by either party shall be delivered to the other party at the address on the cover page or Order Form by: (i) personal delivery; (ii) postage prepaid, return receipt requested, registered or certified mail; (iii) internationally recognized express courier, such as Federal Express, UPS or DHL; or (iv) facsimile or email with a confirmation copy sent simultaneously by postal mail. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given. A party may change its address by providing notice to the other party in accordance with this paragraph.
- Governing Law. This Agreement shall be governed by and construed in accordance with laws of the State of California notwithstanding any choice-of-law principle that might dictate a different jurisdiction’s governing law. Any legal action or proceeding with respect to this Agreement shall be brought in the federal or state courts in San Francisco County, California, and, by execution and delivery of this Agreement, the parties accept for themselves and in respect of their property, generally and unconditionally, the jurisdiction of the aforesaid courts. The parties irrevocably waive any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens, which any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.
- Attorney Fees. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.
- Counterparts. This Agreement may be executed by written or electronic signature and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.