Terms of Service
Last updated February 9, 2022
Welcome to Cosmos’ Cloud Service and related websites. These Terms of Service govern your (“you,” “User,” or the “Customer”) use and access to Cosmos Data Technologies, LLC’s (“Cosmos,” “us,” “we,” or “our”) websites and software (collectively, “Services”). By accessing and using our Services, you agree to all the terms herein and the terms provided to you via invoice (collectively, the “Agreement” or the “Terms”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind the entity to these Terms. These Terms are effective as of the date that you click “Accepted and Agreed To” or that you start accessing or using the Services, whichever is first (the “Effective Date”). If at any time you do not accept all of these Terms, you must stop using the Services immediately.
- Our Responsibilities and License.
Cosmos will make the Services available to you, subject to this Agreement, and will use reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime and any unavailability caused by Internet service provider failures occurring outside of Cosmos’ control including, without limitation, any unavailability of Microsoft’s Azure data centers. Conditioned upon your payment for the Services and your compliance with this Agreement, Cosmos grants you a nonexclusive, non-transferable, non-sublicensable, limited, revocable license to use the Services during the term of this Agreement. For the limited purpose of providing Services to you in connection with this Agreement you hereby grant Cosmos a nonexclusive, non-transferable, sublicensable, limited license to the data you provide Cosmos.
- Payment for Services.
2.1. Fees. You are responsible for paying the fees charged by Cosmos for using the Services, and you are responsible for such monthly or annual fees as are required to use your account, as initially determined via invoice when you first begin using the Services and as later modified, subject to this Agreement. If you are on an annual plan, you will be informed at least 30 days before the renewal date via email that your plan is about to renew. You can renew your Service at any time including, without limitation, prior to being informed that your Service will end, provided that payment must be received prior to the end of the current service period to avoid any disruption of your access to the Services. We may modify the fees for Services from time to time, but we will give you at least 30 days prior notice that such a modification will occur. The modification in fees will only be effective for the service period following our notice to you about the modification.
2.2. Partner Payments. Payment for the Services may be collected on Cosmos’ behalf by a third party authorized to resell the Services (“Partner”). For purposes of Section 2.1, a payment owed for the Services is deemed to have been received by Cosmos when such Partner receives payment. If Partner has not remitted full payment to Cosmos within 30 days of the Services being enabled for you or your company, then Cosmos may disable your access to the Services until payment has been received by Cosmos.
2.3. Taxes. You shall be responsible for all sales taxes and other similar taxes (e.g., gross receipts, etc.) imposed on the transactions contemplated by this Agreement by any federal, state, or local governmental entity in which Customer operates (“Customer Taxes”). Notwithstanding the foregoing, if we are charged with paying or collecting Customer Taxes, the appropriate amount shall be invoiced to and paid by you.
2.4. Invoice Terms. Additional terms for payment for the Services and other conditions may be included on the invoices sent to you by Cosmos.
- Service Level Agreement.
In the event of a service failure related to Cosmos’ Services, Cosmos will, upon your request, issue you a credit equivalent to a prorated proportion of the downtime, relative to your monthly or annual fees. However, Cosmos will not issue a credit for planned downtime, or downtime strictly caused by Cosmos’ hosting platform, Microsoft Azure, or for occurrences outside of Cosmos’ control, such as a force majeure event under Section 15.3 and external factors such as Internet downtime. Credits issued pursuant to these Terms apply to outstanding or future payments only and are forfeited upon termination of this Agreement. Cosmos is not required to issue refunds or to make payments against such credits under any circumstances, including, without limitation, termination of this Agreement. Credits issued pursuant to these Terms are your sole remedy for the service failure in question. Except for the credit described herein, neither Cosmos nor any of our third-party service providers will be liable to you for any delay, outage, interruption or unavailability of any Service.
- Materials, Software, & IP.
4.1. Acknowledgment. You acknowledge and agree that: (i) the content, rights, properties, and materials provided through the Services are the property of Cosmos or its licensors and are or may be protected by copyright, trademark, and other intellectual property laws; and (ii) you do not acquire any right, title, or interest in or to the content, rights, materials, or Services except the limited and temporary license to use them as necessary for your use of the Services, subject to this Agreement.
4.2. Intellectual Property Ownership. Cosmos retains all its right, title, and interest in and to the Services, including without limitation all software used to provide the Services and all logos and trademarks reproduced through the Services, with the exception of any third party plugins used in the Services which remain owned by the respective third party organizations. All right, title and interest in your and our respective intellectual property remains and will remain solely owned by the respective owner. These Terms do not transfer or assign any intellectual property rights in or to the Services, or any of its components.
- Online Policies.
5.1. User Responsibility. You are responsible for all acts or omissions by anyone accessing Services on your account including, without limitation, actions constituting a breach of this Agreement. Neither Cosmos nor any of our third-party service providers, contractors and licensors has any obligation to monitor any use of any of the Services, but we may do so in our sole discretion.
5.2. Updates. If we make updates to any of the Services available to you, you must install those updates to continue using the Services. The updates may be subject to additional terms which will be provided to you.
5.3. Acceptable Use Policy (“AUP”). As a user of the Services, you may not:
5.3.1. reproduce or publish any portion of the Services in any manner other than as expressly permitted in these Terms,
5.3.2. provide access to any Services under or in connection with your account other than to your authorized users,
5.3.3. use the Services to create any derivative products,
5.3.4. reverse engineer, decompile, disassemble, decode, decrypt, or otherwise attempt to discover the source code, object code or underlying structure, ideas, organization, internal design, algorithms or encryption devices of, or adapt, modify or create derivative works of, any part or component of any of the Services,
5.3.5. input, post, upload, download, transmit, reproduce, or distribute, or to facilitate the inputting, posting, uploading, downloading, transmission, reproduction, or distribution of any code, file or content which contains, or activates any malware, software virus, worm, time bomb, corrupted file, Trojan horse, or any other computer code, file or program designed and intended to disrupt, damage, overburden, limit or otherwise impair the functioning of any software, hardware, network, server or communications systems or equipment,
5.3.6. hack, disable, manipulate, modify, tamper or interfere with or disrupt the integrity or performance of or attempt to overburden, gain unauthorized access to, bypass, circumvent, disable, or work around any technical features or limitations in the Services including, without limitation, any hardware, content, systems, networks or technology which constitutes any part or component of any of the Services,
5.3.7. copy, rent, resell, relicense, assign, encumber, or redistribute the Services in whole or in part,
5.3.8. use the Services to infringe any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy,
5.3.9. use the Services for any purpose that is defamatory, obscene, libelous, unlawfully threatening or unlawfully harassing, or
5.3.10.permit, authorize, assist or encourage any party to do any of the foregoing.
If you breach the AUP, Cosmos may immediately suspend or terminate your access to the Services in addition to such other remedies as Cosmos may have at law, equity, or otherwise pursuant to these Terms.
5.6. Third Party Services. The Services may be linked, accessed, or integrated with third party services, products, solutions, software or technology (“Third Party Services”). The Services may contain third party software that requires additional terms and conditions. You acknowledge we have no control over and are not responsible for any Third-Party Services. We have no liability to you for any damage or loss caused by any Third-Party Services.
5.7. Azure Terms. As a user of the Services, you agree to be bound by any applicable Terms of Service published by Microsoft governing usage of Azure Services. If Azure modifies any of its policies, you are responsible for abiding by the revised terms. If you do not approve of the revised terms, then you must stop using the Services immediately. The latest Azure terms can be accessed here: https://azure.microsoft.com/en-us/support/legal/
- Term and Termination.
6.1. Term. This Agreement commences on the Effective Date, and continues until all subscriptions or monthly service periods have expired or have been terminated in accordance with this Agreement.
6.2. Terms of Service Plans. The term for the Services will be specified when you receive confirmation of your plan via invoice from Cosmos after initiating the Services. Plans will automatically renew for additional service periods equal to the expiring subscription or plan term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the remaining service period term.
6.3. Termination. Cosmos may terminate this Agreement: (i) 30 days after written notice to you about your material breach of this Agreement if such breach remains uncured at the expiration of such service period, (ii) immediately if you become the subject of a lawsuit or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors, and (iii) immediately upon breach of the AUP. You may terminate this Agreement for any reason by providing 30 days’ written notice to Cosmos.
6.4. Payment upon Termination. If you terminate your Service before the service period is over, then you are not entitled to a refund or credit for any balance of the pre-paid subscription remaining. Upon termination, you shall immediately pay any unpaid and owed fees for Services provided during the Term and prior to the date of termination.
6.5. Your Data Upon Termination. Your data will remain available for the duration of your service period or the term of this Agreement, whichever is shorter. If a request for your data is made in writing within 30 days after this Agreement’s termination or after the end of your service period, then we will make such data available to you free of charge. You are solely responsible for maintaining your data after this Agreement terminates and after your service period ends. We have no obligation to maintain any of your data after this Agreement terminates or after your service period ends.
6.6. License Termination. Upon expiration of its term or termination of this Agreement all rights and licenses granted to you under this Agreement are automatically terminated.
- Representations and Warranties.
7.1. Your Representations and Warranties. You represent and warrant to Cosmos: (i) you have read and understand all of this Agreement; (ii) you have accurately identified yourself to Cosmos through your account and will maintain the accuracy of such identification; (iii) if you are acting on behalf of a business entity, it is authorized to do business pursuant to applicable law; and (iv) if you are an individual, you are 18 years or older.
7.2. Mutual Representations and Warranties . Each party represents and warrants that it is legally bound by this Agreement, having the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
7.3. Disclaimers: Everything provided by Cosmos in connection with this Agreement, including without limitation the Services, are provided on an “as is” and “as available” basis. Cosmos expressly disclaims all warranties and representations about the methodologies, accuracy, timeliness, reliability, and completeness of the Services. Cosmos expressly disclaims all statutory, express, or implied warranties of any kind whatsoever, including, without limitation, any implied or express warranties of merchantability, fitness for a particular purpose or non-infringement. Any reliance on or use by User of the Services shall be entirely at User’s own risk. Cosmos makes no representations or warranties about the legality or propriety of the use of the Services in any jurisdiction, state or region. User shall be solely responsible for obtaining any and all necessary licenses, certificates, permits, approvals or other authorizations required by federal, state or local statute, law or regulation applicable to User’s use of the Services.
- Limitation of Liability. Cosmos’ total liability and your exclusive remedy under or related to this Agreement, whether based on breach of contract, tort, product liability, or otherwise, shall be limited to direct money damages not exceeding the total value received by Cosmos from you for the applicable service period. This limit is cumulative and any payments under this Agreement will be aggregated to calculate satisfaction of the limit. The existence of multiple claims will not enlarge the limit. Cosmos and its licensors shall have no liability under or in any way related to this Agreement for any special, punitive, incidental, indirect, exemplary, or consequential damages, or lost revenue, lost profits, loss of goodwill, or lost or damaged data, whether arising in contract, tort, or otherwise, even if such party has been informed of the possibility thereof. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply. User agrees that the limitations set forth above are fundamental elements of this Agreement, and that the Services would not be provided to User unless User agrees such limitations.
- Time for Initiating Disputes.
Any claim, controversy, action, or proceeding by you relating to this Agreement must be commenced by you within one year after the cause of action accrues or is waived by you, whichever is sooner.
- California Residents – Section 1542 Waiver.
You understands that you are waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, you acknowledge that you have read and understand, and you hereby expressly waive, the benefits of section 1542 of the civil code of California, and any similar law of any state, country or territory, which provides as follows: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
- Data Management.
11.1.Access, Use, & Legal Compulsion. Unless we receive your prior written consent, and except as otherwise provided herein, Cosmos: (i) will not access or use your data other than as necessary to facilitate or provide the Services; and (ii) will not give any third-party access to your data without your authorization, except as necessary to facilitate or provide the Services. Notwithstanding the foregoing, Cosmos may disclose your data as required by applicable law or by proper legal or governmental authority. Cosmos will give you prompt notice, if legally allowed to do so, of any such legal or governmental demand and reasonably cooperate with you in any effort to seek a protective order or otherwise to contest such required disclosure, at your expense.
11.2.Your Data Ownership. You possess and retain all right, title, and interest in and to your data, and Cosmos’ use and possession thereof is solely as your agent and limited licensee, in connection with the Services and this Agreement, subject to the limited license set forth in Section 1.
11.3.Retention & Deletion. Cosmos will retain data you provide Cosmos until deleted following the earliest of: (i) the termination of this Agreement, (ii) the end of your service period, or (iii) pursuant to your written request.
You shall indemnify, defend, and hold Cosmos harmless from and against all claims of third parties arising out of or related to the Agreement, your use of the Services, or attributable to your breach of this Agreement. Cosmos shall control the defense and any settlement of such claim, and you shall fully and promptly cooperate with Cosmos in defending against such claim.
- DMCA Notice.
Cosmos complies with the US Digital Millennium Copyright Act of 1998 (“DMCA”), by responding to notices of alleged infringement. As part of our response, we may remove or disable access to material related to the Services that is claimed to be infringing. If that occurs, we will make a good faith attempt to contact the person who submitted the material in question, so that they may submit a counter notification as set forth in the DMCA. We do not control content posted on any third-party and cannot remove content from sites or services that we do not own or control. If you are the copyright owner of any content available in connection with the Services, and you have not authorized the use of your content, notifications of claimed copyright infringement and counter- notices must be sent to our designated agent: Brian Petersen Cosmos Data Technologies, LLC 4720 Lower Dr Lake Oswego, OR 97035 Phone: 503-862-9406 Email: firstname.lastname@example.org We will respond expeditiously to claims of copyright infringement committed using any of the Services that are reported to our designated copyright agent in accordance with the DMCA. Notices must include the required information set forth in the DMCA.
- Export Controls.
The Services utilize software and technology that may be subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated regulations. You must not directly, or indirectly, export, reexport or release any Services, or any Software or technology included in, or comprising any Services to, or make any Services or any such Software or technology included in, or comprising any Services accessible from, any jurisdiction or country to which export, reexport, or releases prohibited by law, regulation or rule. No software or underlying information or technology may be downloaded or otherwise exported or reexported (a) into Cuba, North Korea, Iran, Sudan, Syria or any other country for which the US maintains an embargo on exports, or (b) to a person or entity identified on lists of the US Treasury Department (e.g., specially designated nationals, denied persons or entities) or the US Commerce Department (e.g., entity list, table of denied orders), which control such exports. By using the Services you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. Customer may not provide access to the Services to any person or entity that is (x) identified on the Specially Designated Nationals List or Foreign Sanctions Evaders List of the Office of Foreign Assets Control, U.S. Department of the Treasury, as amended from time to time; (y) located in Cuba, Iran, North Korea, Sudan, Syria, or any other country that is subject to U.S. economic sanctions prohibiting such access; or (z) otherwise unauthorized to have such access under any Law.
- General Terms.
15.1.Notices. You consent to receive electronic communications from us about this Agreement, the Services, or anything else (rather than in paper form). Electronic communications have the same effect as paper copies and all electronic communications satisfy any legal requirement that communications be in writing. You agree to use electronic signatures. Cosmos may send notices pursuant to this Agreement to the email address associated with a User’s account, and such notices will be deemed received one day after they are sent. You may send notices to Cosmos via email pursuant to this Agreement, and such notices will be deemed received one day after they are sent.
15.2.Amendment. Cosmos may amend this Agreement from time to time by posting an amended version at its website and sending you written notice thereof by electronic or other reasonable means. Such amendment will be deemed accepted and become effective 30 days after such notice. Your continued use of the Service following the effective date of an amendment will confirm your consent thereto. If you do not agree to the revised terms, then you must stop using the Service immediately. You will not be entitled to a refund for such early termination.
15.3.Force Majeure. Cosmos is not liable for loss of use of the Services caused by a condition outside of Cosmos’ control (such as a acts of God, acts of war, pandemics, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, other natural disasters, or Internet downtime) that was beyond Cosmos’ reasonable control.
15.4.No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
15.5.Assignment & Successors. You may not assign or delegate this Agreement or any of your rights or obligations hereunder without Cosmos’ written consent, which Cosmos may withhold in its sole discretion. This Agreement will be binding on the parties and their respective heirs, personal representatives, successors, and permitted assigns, and will inure to their benefit.
15.6.Choice of Law & Jurisdiction. This Agreement will be governed exclusively by the laws of the State of Oregon, applicable to agreements executed and to be performed within Oregon, without regard to any conflict of law principles. The parties hereby submit exclusively to the jurisdiction of, and waive any venue objections against, the United States District Court for the State of Oregon and the Multnomah County Circuit Court, in the State of Oregon in any litigation arising out of or relating to this Agreement or its subject matter.
15.7.Attorney Fees. If any arbitration, action, suit, or proceeding is instituted to interpret, enforce, or rescind this Agreement, or otherwise in connection with the subject matter of this Agreement, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorney’s fees and other fees, costs, and expenses of every kind incurred in connection with the arbitration, action, suit, or proceeding, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.
15.8.Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
15.9.Entire Agreement. This Agreement, sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any prior or contemporaneous communications in entering this Agreement. The parties do not intend to confer any right or remedy on any third party with this Agreement. In the event of a conflict or inconsistency between these Terms of Service and any invoice, these Terms of Service shall govern.
15.10.Electronic Signing. This Agreement may be signed and executed electronically and in counterparts. An electronic transmission of a signature will be considered an original signature. At the request of a party, each other party will confirm an electronically transmitted signature by delivering an original to the requesting party.