IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE SERVICE (AND ASSOCIATED SOFTWARE) (COLLECTIVELY, THE "SERVICE") OF COSMIUM AI AND ITS AFFILIATES ("COSMIUM AI") IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
1. THE SERVICE
1.1 The Service is a cloud-based conversation intelligence platform. Designed to help you record, transcribe, analyze, and share your business calls and online client interactions seamlessly. (together with all other information data that you make accessible to Cosmium AI, “Content”).
1.2 Cosmium AI provides you a right and permission to use the Service subject to a valid subscription, pursuant to the terms of the Order Form, or subject to free evaluation terms, as further detailed below.
1.3 Upon your subscription to the Service, Cosmium AI will grant you access to the Service or certain parts of it, which will allow Cosmium AI or you to add end-user accounts (“Permitted Users”) and to control or manage certain features of the Service. Permitted Users’ access to the Service is limited and personal. You are responsible for actions taken by Permitted Users or by anyone using your accounts and passwords.
1.4 Cosmium AI uses commercially reasonable efforts to maintain the highest Service availability. However, Cosmium AI cannot guarantee that the Service will operate in an uninterrupted or error-free manner. Cosmium AI performs Service maintenance and uses commercially reasonable effort to schedule system downtime to off-peak hours and to avoid service interruptions and delays.
2. EVALUATION PERIOD
Cosmium AI may make the Service or any part of it available to you on an evaluation basis until the earlier of (i) the end of the applicable evaluation period pursuant to the Order Form, (ii) your purchase of a Service subscription, or (iii) any termination of the evaluation by Cosmium AI for any reason, or for no reason at all, by sending you a termination notice with immediate effect.
3. DATA SECURITY
3.1 Cosmium AI will maintain reasonable physical and technical safeguards to prevent unauthorized disclosure of or access to Content, in accordance with industry standards. Cosmium AI will notify you if it becomes aware of unauthorized access to Content. Cosmium AI will not access, view or process Content except (a) as provided for in this Agreement and in Cosmium AI’s Privacy Policy; (b) as authorized or instructed by you, (c) as required to perform its obligations under this Agreement; or (d) as required by applicable law.
3.2 The terms of the Cosmium AI’s Data Processing Agreement (“DPA”) are incorporated by reference to this Agreement and apply to the processing of personal information which is part of your Content.
4. YOUR UNDERTAKINGS
4.1 You assume full responsibility for your and your Permitted Users’ use of the Service in accordance with this Agreement and with applicable local, state, federal, national, and international laws, regulations, and treaties, and warrant that you have obtained all rights in the Content to authorize Cosmium AI to input, process, distribute, and display the Content as contemplated by the Agreement.
4.2 You will not, and ensure that your Permitted Users will not, use the Service or Content for any use or purpose that is illegal, obscene, or infringes on third-party rights.
4.3 You will not, and will ensure that your Permitted Users will not: (i) use the Service for non-business calls or abuse the Service; (ii) resell, transfer, grant others permission to use the Service, pledge, lease, rent, or share your rights under this Agreement (including, without limitation, to any of your affiliates); (iii) modify, remove, or amend Cosmium AI’s name or logo, update, reproduce, duplicate, or copy all or any part of the Service; (iv) make any of the Service or Content available to anyone other than your employees and consultants for use for your benefit as intended pursuant to this Agreement, or use any Service or Content for the benefit of anyone other than you; (v) use the Service in any way that restricts or inhibits the use of the Service; (vi) access or attempt to access any of Cosmium AI’s systems, programs, or data that are not made available for public use, or attempt to bypass any registration processes on the Service or any of the Service’s security and traffic management devices; or (vii) attempt to decompile, disassemble, re-engineer or reverse engineer the Service or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Service, its structural framework or allow or facilitate a third party to violate or infringe any rights of Cosmium AI or others or Cosmium AI policies or the operational or security mechanisms of the Service.
4.4 When using the Service in conjunction with other third-party services, you will comply with the terms of service of such third-party services. Cosmium AI shall not be liable for any termination, breach of terms, or suspension of service resulting from your use of the Service.
4.5 You may not access or use the Service if you are a direct competitor of Cosmium AI, or for monitoring the Service’s availability, performance, or functionality, or for any other benchmarking or competitive purposes.
5. SUBSCRIPTION FEES
5.1 In consideration of the right to use the Service under the terms herein, you will pay subscription fees as outlined in the applicable Order Form. Cosmium AI reserves the right to collect outstanding fees through additional means if initial payment attempts fail.
5.2 Subscription fees are exclusive of taxes. You are responsible for any applicable taxes.
5.3 Cosmium AI reserves the right to adjust Subscription Fees at the renewal of your subscription term, with prior notice given at least 30 days before the end of the current term.
6. PROPRIETARY RIGHTS; YOUR FEEDBACK
6.1 All parts of the Service are protected by copyrights, trademarks, service marks, patents, or other proprietary rights, as a collective work or compilation, pursuant to laws and international conventions. Except for your Content, all rights to the Service and derivatives thereof are retained by Cosmium AI. In addition, Cosmium AI retains all rights to aggregated and anonymous data derived from your use of the Service, with the understanding that such data will not be identifiable as belonging to or emanating from you nor will such data contain information that directly or indirectly identifies you or any other person (natural or otherwise).
6.2 Cosmium AI makes no claim of ownership as to your Content, the trademarks of any third party linked or displayed on the Service, or with respect to any publisher or publication mentioned on the Service.
6.3 In the course of using the Service, you or your Permitted Users may provide Cosmium AI with feedback and suggestions regarding the Service. You hereby assign to Cosmium AI ownership in all such feedback and suggestions and all rights therein, without any royalty or accounting obligations to you.
7. LINKS TO OTHER WEBSITES AND APPLICATIONS
The Service contains links and references to websites and applications of others. Cosmium AI may, from time to time, at our sole discretion, add or remove links. Cosmium AI has no control over these third-party websites and applications, does not endorse, sponsor, or confirm their content, and is not responsible or liable for any communication or transaction that you make with them.
8. WARRANTIES; DISCLAIMER
8.1 Each of you and Cosmium AI represents, warrants, and covenants to the other that: (a) it has the full corporate right, power, and authority to enter into and perform this Agreement, and such execution and performance do not and will not violate any other agreement to which it is a party, and (b) this Agreement constitutes its legal, valid, and binding obligation.
8.2 The Service, when used in accordance with this Agreement, will perform in all material respects as specified in Section 1 above. Your sole and exclusive remedy under such warranty shall be for Cosmium AI to use commercially reasonable efforts to correct or to replace the affected Service with a component or service of similar functionality. The above warranty is conditioned upon you notifying Cosmium AI in writing within 30 days of discovery of any alleged defect in the Service together with a documented example of such defect. This warranty shall not apply to any portion of the Service that (a) has been subject to abuse or misuse, (b) is used in combination with any other products, process, equipment or software not furnished by Cosmium AI, (c) is related to a virus, worms, and the like that has not been introduced by Cosmium AI, or (d) was used without authorization.
8.3 EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COSMIUM AI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, COSMIUM AI MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICE MEETING YOUR REQUIREMENTS OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS-FREE; (II) WHETHER YOUR USE OF THE SERVICE OR THE CONTENT WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION.
8.4 NOTWITHSTANDING, DURING AN EVALUATION PERIOD, COSMIUM AI PROVIDES THE SERVICE “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES AND REPRESENTATIONS.
9. PRIVACY AND OTHER POLICIES
Use of the Service is also subject to Cosmium AI’s Privacy Policy, a link to which is located at the footer on Cosmium AI’s website. The Privacy Policy and all policies noticed at www.cosmium.ai are incorporated into this Agreement by reference. Additionally, you understand and agree that Cosmium AI may contact you via e-mail or otherwise with information relevant to your use of the Service, regardless of whether you have opted out of receiving marketing communications or notices.
10. CONFIDENTIALITY
10.1 “Confidential Information” means all information provided by a party to another party, whether orally or in writing, 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, and excluding any information that was or has become publicly available without the receiving party’s actions or inactions. Cosmium AI’s confidential information includes, without limitation, the Service’s features, functionality, and performance, and your view of the Service. Your Confidential Information includes, without limitation, the Content.
10.2 Each party will hold the other party’s Confidential Information in strict confidence, use it only subject to the terms of this Agreement, allow its use only by the receiving party’s employees and consultants who have signed in advance a confidentiality agreement containing terms similar to this Agreement and on a need-to-know basis and pursuant to the terms of this Agreement, not make the other party’s Confidential Information available to any third party unless to the extent required by applicable law, implement adequate security measures to ensure against unauthorized access to, use or copying of the other party’s Confidential Information, and notify the other party in writing of any misuse or misappropriation of the other party’s Confidential Information of which the receiving party may become aware; in each case without derogating from the terms of the Cosmium AI Privacy Policy.
11. TERM AND TERMINATION
11.1 The initial subscription term of the Agreement will be as set forth and agreed by the parties in the Order Form.
11.2 Either of you and Cosmium AI may terminate this Agreement if the other party (i) materially breached this Agreement and has not cured such breach within 30 days after receiving notice (if curable), without prejudice and in addition to any right or remedy that the non-defaulting party may have under this Agreement or the applicable law, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3 At the end of the initial subscription term, all your Cosmium AI subscriptions (including any additional subscriptions added to your account) will renew automatically for additional 12-month periods unless you or Cosmium AI notifies the other in writing, at least 30 days prior to the end of the then-current subscription term, that it chooses not to renew (initial subscription term, with any renewal subscription terms, the “Subscription Term”).
11.4 Upon termination or expiration of this Agreement; (a) you will cease use of the Service and all rights granted to you under this Agreement will terminate; (b) upon written request, we will make your recorded calls available for you to download, or export within 30 days following such termination, and (c) Sections 4.1, 5, 6, 8, 10, 11 through 14, 17, 19, and 20 survive termination of the Agreement. Thereafter, Cosmium AI will be under no obligation to maintain your recorded calls, or make them available to you and Cosmium AI may delete any of your Content.
11.5 In the event of a termination due to an uncured breach by Cosmium AI pursuant to Section 11.2, Cosmium AI will refund the remaining Subscription Fees until the end of the Subscription Term.
12. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, (i) UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE; AND (ii) EXCLUDING LIABILITY FOR A BREACH OF SECTION 10 (CONFIDENTIALITY), YOUR PAYMENT OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION), EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY COSMIUM AI FROM YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE APPLICABLE CLAIM. THE ABOVE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you.
13. LIMITATION OF CLAIMS
Any claim or cause of action arising out of or related to use of the Service or to the Agreement must be filed within two years after such claim or cause of action arose, or be forever barred.
14. INDEMNIFICATION
14.1 Cosmium AI will indemnify, defend and hold harmless you, your officers, directors, employees, agents, and affiliates from and against all losses, liabilities, claims, obligations, costs, and expenses (including reasonable attorneys’ fees) that you incur in responding to a third-party claim or demand (“Claim”) alleging that the Service (excluding any Content) infringes or misappropriates any third party’s trademark, India patent, copyright or trade secret. If a court of competent jurisdiction or Cosmium AI reasonably determines that any such claim prevails or is likely to prevail, Cosmium AI may, at Cosmium AI’s sole discretion and expense: (a) procure the right for you to continue to use the Service; (b) replace or modify the applicable Service so that it no longer infringes or misappropriates, as applicable, such patent or copyright; or (c) terminate this Agreement and refund you any prepaid Subscription Fees for the period subsequent to such termination, on a pro-rated basis.
14.2 You will indemnify, defend and hold harmless Cosmium AI, its officers, directors, employees, agents, and affiliates, from and against all losses, liabilities, claims, obligations, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claims with respect to your use of the Service, including without limitation your Content and any claims against Cosmium AI by your employees, users, consultants, customers, service providers or the like in connection with their use of the Service, and excluding Cosmium AI’s indemnification obligations pursuant to the paragraph immediately above.
14.3 As a condition to such indemnification each of you and Cosmium AI will provide the other with written notice of such claim. Neither Cosmium AI nor you will enter into any settlement or compromise of any such claim without the indemnifying party's prior written consent. The indemnifying party may assume the exclusive defense and control of any matter subject to indemnification. In all events, each of Cosmium AI and you will cooperate with the other in the defense of any claim.
15. FEDERAL GOVERNMENT END USE PROVISIONS
Cosmium AI provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Cosmium AI to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
16. COPYRIGHT PROTECTION – DIGITAL MILLENNIUM COPYRIGHT ACT
16.1 Cosmium respects the rights of copyright owners and expects its users to do the same. If you are a copyright work owner or an agent thereof, and you believe any content submitted to and hosted on the Service infringes your copyrights, you may submit a notification pursuant to the U.S. Digital Millennium Copyright Act (“DMCA”) by providing the Cosmium Designated Copyright Agent with the following information in writing (“Notice”):
16.1.1 Sufficient details to enable identification of the copyrighted work that has been allegedly infringed; if multiple copyrighted works are claimed to be infringed, a representative list of such works;
16.1.2 A description of where the content that you claim is infringing is located on the Service; your contact information at which you may be contacted (for example, your address, telephone number, and email address);
16.1.3 A statement that you have a good faith belief that the use of the content identified in the Notice is not authorized by the copyright owner, its agent, or the law;
16.1.4 A statement, under penalty of perjury, that the information in the Notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed;
16.2 Following receipt of your Notice, Cosmium will take whatever action it deems appropriate, including removal of the challenged content from the Service. Cosmium may ask you to provide further or supplemental information prior to removing any content, as Cosmium deems necessary to comply with the provisions of the DMCA. It is Cosmium’s policy to respond only to Notices of alleged infringement that comply with the provisions of this section.
16.3 Cosmium’s Designated Copyright Agent for notices of claims of copyright infringement may be reached as follows:
Copyright: www.cosmium.ai, Chief Legal Officer, subject line: Copyright Agent, email: [email protected]
17. GOVERNING LAW AND EXCLUSIVE COURTS
This Agreement will be governed by the laws of India, without regard to its choice of law or conflicts of law principles. You and Cosmium consent to the exclusive jurisdiction and venue in the courts in India, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court where such infringement has occurred. EACH PARTY WAIVES ANY OBJECTION (ON THE GROUNDS OF LACK OF JURISDICTION, FORUM NON CONVENIENS OR OTHERWISE) TO THE EXERCISE OF SUCH JURISDICTION OVER IT BY ANY SUCH COURTS.
18. FORCE MAJEURE
Neither party will be deemed to be in breach of this Agreement for any failure caused by reasons beyond a party’s reasonable control (including without limitation acts of God, war or civil disturbance), and it will notify the other party as soon as practicable in writing of such failure.
19. INJUNCTIVE RELIEF
You acknowledge that any use of the Service contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Service, may cause irreparable injury to Cosmium, its affiliates, suppliers and any other party authorized by Cosmium to resell, distribute, or promote the Service (“Resellers”), and under such circumstances Cosmium, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
20. GENERAL
20.1 This Agreement, the Order Form, the Privacy Policy and the DPA comprise the entire agreement between you and Cosmium, state Cosmium’s and its suppliers’ entire liability and your exclusive remedy with respect to the Service, and supersede all prior agreements pertaining to subject matters of the Agreement, the Order Form, the Privacy Policy and the DPA, and you specifically confirm that you have not entered into this Agreement relying on any oral or written public comments made by Cosmium regarding future functionality or features of the Service. The terms of any purchase order or similar document will have no effect and are hereby rejected. This Agreement has been prepared in the English language and such a version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes.
20.2 You and Cosmium are independent contractors with respect to each other, and nothing in this Agreement will be construed as creating a partnership, agency, fiduciary or employment relationship or a joint venture between you and Cosmium.
20.3 If any provision of this Agreement is held to be contrary to law, such provision will be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect.
20.4 The section titles in this Agreement are solely for convenience and have no legal or contractual significance. No provision of the Agreement will be construed against Cosmium but rather will be construed in a neutral manner as terms entered into by a fully-informed party on a voluntary basis after the opportunity to confer with advisors and legal counsel about the meaning and effects of the terms of this Agreement.
20.5 All modifications to or waivers of any term of this Agreement must be in a writing signed by you and Cosmium and expressly reference this Agreement. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right under the Agreement will not constitute a waiver.
20.6 Cosmium suppliers are beneficiaries of the limitations, obligations and restrictions contained in this Agreement that are protective of Cosmium or the Service.
20.7 This Agreement, and any rights granted hereunder, may not be transferred or assigned by a party, except to a successor of all or substantially all of its business or assets (by merger or otherwise).