Terms and Conditions
A. Acceptable Use.
1. General Responsibilities.
Cobalt Archive may suspend or terminate Client’s use of the Services, or the Agreement, if Client or any of Client’s users violate the Acceptable Use section of these Terms (“Acceptable Use Policy”).
Any violation of this Acceptable Use Policy may result in the suspension or cancellation of a Service or Services or such other action as Cobalt Archive deems appropriate. Cobalt Archive will not be held liable for the suspension or cancellation of a Service if, in Cobalt Archive’s sole discretion, this Acceptable Use Policy has been violated by Client or any of Client’s users.
Client shall remain solely liable and responsible for its use of the Services and any and all content that the Customer may display, upload, download or transmit through the use of the Services, as applicable.
The Services may be used only for lawful purposes. The transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited, including, without limitation: Infringement of intellectual property rights or other proprietary rights material protected by patent, copyright, trademark, service mark, trade secret or other intellectual property rights used without proper authorization; of site content, or the transmission of data that contains illegal or obscene material or fosters or promotes illegal activity. In addition, the Services many only be used for commercial purposes. The use of the Services for personal, non-commercial purposes is prohibited.
Whether lawful or unlawful or commercial or non-commercial, Cobalt Archive reserves the right to restrict or prohibit any and all uses of the Services or Data on its Systems and to remove such materials from its Systems that Cobalt Archive determines, in its sole discretion, is harmful to its Systems, network, reputation, goodwill, other customers of Cobalt Archive, or any third party, and may take any action it deems fit to resolve the situation.
3. Access and Interference.
Violations or attempts to violate Cobalt Archive’s computer equipment, servers, data storage devices, Internet connections, software operating systems, and any hardware or software networking device (“System”) or to interrupt Cobalt Archive’s Services are strictly prohibited, and may result in criminal and civil liability.
Examples of System violations include, without limitation, the following:
(a) Unauthorized access to or use of the Services, Data, or the Systems, including any attempt to probe, scan or overload a Company System or Service, or to breach security or authentication measures without express authorization.
(b) Unauthorized monitoring of Data or traffic on any System without express authorization.
(c) Interference with Service to any User, host or System including, without limitation, mail-bombing, flooding, deliberate attempts to overload a System and broadcast attacks.
(d) Any action that imposes an unreasonable or disproportionately large load on Cobalt Archive’s infrastructure.
(e) Intentional interference also means the use of any kind of program/script/command, or sent messages of any kind, designed to interfere with a User’s terminal session, via any means, locally or by the Internet.
(f) Using manual or electronic means to avoid any use limitations placed on the Services such as timing out.
(g) Any attempt to decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt to derive the source code (including the methods, processes, and infrastructure) underlying the Services or any other software in connection with the Services.
Cobalt Archive may investigate incidents involving such violations and will involve and will cooperate with law enforcement agencies if a criminal violation is suspected. If approached with complaints relating to any of the above violations, Cobalt Archive will cooperate and assist the police and law enforcement bodies with their investigations in order to bring such misuse and violations to an end.
4. System Performance.
Cobalt Archive considers that any application that overloads Cobalt Archive’s System by whatever means will be considered as making reckless use of Cobalt Archive’s System and as such is not allowed. Cobalt Archive may prohibit the running of any such application which, in its sole judgment, endangers the stability or performance of Cobalt Archive’s Systems.
5. Supported Browsers.
For the best experience with Cobalt Archive, with recommend one of the following supported browsers:
* Google Chrome
* Apple Safari
* Mozilla Firefox
We will update our customers when Microsoft development finishes updating their rendering engine for the Microsoft Edge browser. We also recommend that users install the most recent version of their browser to access the latest features, as well as for improved security and performance.
B. Website Terms.
1. Materials Made Available on the Sites.
The Sites may contain information, software, documentation, data, services, logos, trademarks, trade dress, artwork, text, video, audio, video, pictures, content and other materials (collectively, “Materials”).
Cobalt Archive owns the Materials, as well as the design, structure, selection, coordination, expression and arrangement of such Materials, and all intellectual property rights therein and thereto. The Cobalt Archive logos, trademarks, service marks or other business names are the trademarks or registered trademarks of Cobalt Archive or its subsidiaries in the United States and other jurisdictions (“Trademarks”). All other company and product names may be trademarks or registered trademarks of their respective companies.
The Materials and the Trademarks are protected by law, including copyright, trademark and other intellectual property laws, as well as unfair competition laws and international treaties. Other than the limited rights granted in these Terms nothing on the Sites shall be construed as conferring to you any license in any intellectual property rights, whether by implication, estoppel or otherwise.
You acknowledge that the Sites have been developed, compiled, prepared, revised, selected and arranged by Cobalt Archive and others through the expenditure of substantial time, effort, and money and constitute valuable intellectual property and trade secrets of Cobalt Archive and others. The Sites, including but not limited to text, design, graphics, interfaces, or code and the selection and arrangements thereof, is copyrighted as a collective work under the United States and other copyright laws, and is the property of Cobalt Archive. The collective work includes works that are licensed to Cobalt Archive.
2. Your Communications to Cobalt Archive via the Sites.
By posting information or other communications to any part of the Sites, you automatically grant, and you represent and warrant that you have the right to grant, to Cobalt Archive a royalty-free, irrevocable, perpetual, non-exclusive, transferable, fully-paid, worldwide license (with the right to sublicense) to use, copy, modify, perform, publish, display, reformat, translate, excerpt (in whole or in part) and distribute such information and content. You also represent and warrant that the holder of any rights in such content, including intellectual property rights, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
You may not pretend that you are any other individual or entity, or misrepresent your authority to represent any entity.
3. Links to Third Party Websites.
Links to third party websites on the Sites are provided as a convenience to you. Such third party websites are not owned or operated by Cobalt Archive, and Cobalt Archive does not assume any responsibility or liability for these third party websites or for any communications or materials available through such third party websites. All third party websites have separate privacy and data collection policies and practices, independent of Cobalt Archive. Cobalt Archive has no responsibility or liability for these independent policies or actions and is not responsible for the privacy practices or the content of third party. Links third party websites do not imply that Cobalt Archive sponsors, endorses, or that Cobalt Archive is affiliated or associated with the third party.
4. Digital Millennium Copyright Act.
If you believe the Sites include materials which may infringe your rights, please provide notice to email@example.com or Cobalt Archive, Riverside Center, 275 Grove Street, Suite 2-400, Newton, MA 02466. Your notice must include all of the below information:
(a) a physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright you allege is being infringed;
(b) a description of the copyrighted work that you allege is being infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(c) a description of the allegedly infringing material and information sufficient to permit us to locate the material;
(d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and/or an e-mail address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, or its agent, or the law; and
(f) a statement by you that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed.
Cobalt Archive will process and investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws.
C. Service Terms.
1. Binding Agreement.
By clicking a box indicating acceptance of these Service Terms or by submitting an update to the plan settings page of the the Site which references the Terms (“Plan Settings Update”), you accept these Service Terms. These Service Terms constitute a binding agreement between Cobalt Archive, LLC and the Client who agrees to them via click-through acceptance or as identified in a Plan Settings Update (“Service Agreement”). The effective date of the Service Agreement between Client and Cobalt Archive is the date on which the client first executed a Plan Settings Update. Where you accept these Service Terms and enter into a Service Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to them. Client agrees that these Service Terms will govern Client’s use of the Services. If any term in a Plan Settings Update conflicts with these Service Terms, the Plan Settings Update will supersede them solely with respect to the conflicting term.
The Services may consist of software as a service offerings, including configurations thereof and feature add-ons (“SaaS Services”) which archive Client Data (as defined below). All services listed in the Plan Settings Update are the “Services.” Following submission of a Plan Settings Update, Cobalt Archive will activate or otherwise make available the applicable Service by providing Client with access to an account within such Service (“Activation Date”). As used in this Agreement, the term “Client Data” means (a) the data that the SaaS Service receives from Client’s third-party communication providers or other third party content providers.
Website Archiving Channel
Cobalt Archive’s Website Archiving Channel is a SaaS Service that crawls and captures Client-designated websites and preserves them in an unalterable format which is indexed in an archiving platform managed by Cobalt Archive for Client review and retrieval. To enable Website Archiving, Client must pay a per domain fee, as set forth in a Plan Settings Update.
E-mail Archiving Channel
Cobalt Archive’s E-mail Archiving Channel is a SaaS Service that receives Client e-mail communications are transferred to an archiving platform managed by Cobalt Archive for Client review and retrieval. To enable the Cobalt Archive E-mail Archiving Platform to receive Client Data, Client must pay a per e-mail address fee, as set forth in a Plan Settings Update.
Social Media Archiving Channel
Cobalt Archive’s Social Media Archiving Channel is a SaaS Service that crawls and captures Client social media profiles and posts that are transferred to an archiving platform managed by Cobalt Archive for Client review and retrieval. To enable the Cobalt Archive Social Media Archiving Platform to receive Client Data, Client must pay a per social media account fee, as set forth in a Plan Settings Update.
Client will pay Cobalt Archive the fees set forth in the Plan Settings Update (“Fees”). The Fees are billed in advance beginning on the Effective Date. Thereafter, Fees are billed each month on the day of the month of the Effective Date or the last day of the month, whichever is earlier. Upon submission of a Plan Settings Update within a monthly billing period that results in a change in the Fees, the difference for the current monthly billing period will be prorated, except as set forth herein. Where additional Fees are due for the current monthly billing period, the additional Fees are billed immediately following submission of a Plan Settings Update. Where Fees for the current monthly billing period are decreased, Cobalt Archive will offset the amount of the decrease against the Client’s Fee for the subsequent billing period. Notwithstanding the foregoing, in the event the Services are terminated within a billing period, Cobalt Archive will not offset or refund Fees resulting from submission of a Plan Settings Update within the currently monthly billing period. Cobalt Archive may modify the Fees with sixty (60) days written notice.
Cobalt Archive will charge the Fees directly to the method of payment provided in the billing settings form (“Billing Settings”). In the event Cobalt Archive is not able to bill charge the method of payment provided in the Billing Settings, Cobalt Archive may invoice the Client. Fees are due and payable within thirty (30) days from the date of any such invoice. Cobalt Archive may charge a late fee of 1.5% per month on any Fees not paid when due. Cobalt Archive reserves the right to suspend Client’s access to the Services in the event Client fails to pay the Fees when due.
All Fees payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable hereunder, other than any taxes imposed on Cobalt Archive’s income.
4. Client Obligations and Responsibilities.
Client is responsible for (a) ensuring that Client’s information submitted through the Sites is complete and accurate; and (b) the security and confidentiality of Client’s account credentials. Client will notify Cobalt Archive immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Client will not permit Cobalt Archive competitors to access the Services for any reason. Client is solely responsible for all activity which occurs within Client’s account and for the actions of its employees, contractors or agents, whether such person is or was acting within the scope of their employment, engagement or agency relationship.
Client may provide Representatives with access to the Services. A “Representative” means any entity or natural person which Client controls or which is under common control with Client. Subject to the terms of this Agreement, Client may provide access to, or use of, the Services to Representatives; provided that, Client is responsible and liable for the acts or omissions of Representative acts. Representative’s use of the Services is subject to the terms of this Agreement.
It is Client’s sole responsibility to monitor Client Data to be transmitted to the SaaS Service to ensure that Client Data is properly transmitted. Client will notify Cobalt Archive of any delivery failures or outages of its systems which may affect the transmission of Client Data. It is Client’s responsibility to encrypt data sent to Cobalt Archive and Cobalt Archive is not responsible or liable for any data which Client transmits to Cobalt Archive in an unencrypted format. Cobalt Archive is not responsible or liable for any update, upgrade, patch, maintenance or other change which affects the transmission of Client Data to Cobalt Archive. With respect to the E-mail Archiving Channel, it is Client’s responsibility to ensure that Cobalt Archive is notified of all Client users to be archived.
Client will comply with Cobalt Archive’s Acceptable Use Policy as set forth herein. The Acceptable Use Policy may be updated from time to time by Cobalt Archive.
Definition of Confidential Information. “Confidential Information” means (a) the non-public information of either party, including but not limited to information relating to either party’s product plans, customers, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how; (b) any information designated by either party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; and (c) Client Data. “Confidential Information” will not include information that: (i) is in, or enters, the public domain without breach of these Terms; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party knew prior to receiving such information from the disclosing party; or (iv) the receiving party develops independently without reference to the Confidential Information.
Obligations with Respect to Confidential Information. Each party agrees: (a) that it will not disclose to any third party, or use for its own benefit or the benefit of any third party, any Confidential Information disclosed to it by the other party except as expressly permitted in these Terms; and (b) that it will use reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control. Either party may disclose Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to contest such order or requirement; or (ii) to the parties agents, representatives, subcontractors or service providers who have a need to know such information provided that such party maintain the Confidential Information on a confidential basis.
Remedies. Each party acknowledges and agrees that a breach of the obligations of this Confidentiality subsection by the other party may result in irreparable injury to the disclosing party for which there will be no adequate remedy at law, and the disclosing party will be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach by the recipient of Confidential Information.
The Service Agreement will commence on the Effective Date and will remain in effect for the period specified in the Plan Settings Form, or, if no period is specified, it will continue indefinitely unless terminated in writing, as provided below.
The Service Agreement may be terminated at any time upon receipt of written notice to terminate given by either party to the other. Your notice should include instruction as to whether the Client Data should be transferred. Termination of the Service Agreement will not affect the validity of any action previously taken under the Service Agreement. Upon any termination or expiration of the Service Agreement: (a) all rights and licenses to the Services granted to Client by Cobalt Archive will immediately terminate; (b) Client will pay any Fees due and payable up to the date of termination; and (c) upon request, each party will return to the other or delete the Confidential Information of the other party; provided, however, if Client requests Cobalt Archive to return Client Data, Client agrees to pay Cobalt Archive’s then-current data extraction and exportation fees plus any hardware costs. Cobalt Archive will maintain Client Data for no fewer than ten (10) days following any termination or expiration of the Service Agreement.
7. Warranties; Disclaimers of Warranties.
Cobalt Archive represents and warrants that it will provide the Services in accordance with generally accepted industry standards. Cobalt Archive represents that it has the right and authority to enter into this Service Agreement and that the performance of its obligations under this Service Agreement will not breach or be in conflict with any other agreement to which Cobalt Archive is a party. Cobalt Archive warrants that it will comply with the laws and regulations applicable to Cobalt Archive’s business.
EXCEPT AS SET FORTH ABOVE, COBALT ARCHIVE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES, PROFESSIONAL SERVICES OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY OTHER INFORMATION OR MATERIALS PROVIDED, OR MADE AVAILABLE, BY COBALT ARCHIVE. COBALT ARCHIVE HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COBALT ARCHIVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR SOFTWARE WILL BE AVAILABLE OR ERROR-FREE. COBALT ARCHIVE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF COBALT ARCHIVE. COBALT ARCHIVE MAKES NO REPRESENTATION OR WARRANTY THAT USE OF THE SERVICES OR THE ADVICE, CONSULTING OR PROFESSIONAL SERVICE PROVIDED TO CLIENT GUARANTEES LEGAL COMPLIANCE UNDER ANY FEDERAL, STATE OR INTERNATIONAL STATUTE, LAW, RULE, REGULATION, OR DIRECTIVE AND COBALT ARCHIVE EXPRESSLY DISCLAIMS ALL LIABILITY ARISING OR RELATED TO CLIENT’S COMPLIANCE WITH ANY FEDERAL, STATE OR INTERNATIONAL STATUTE, LAW, RULE, REGULATION, OR DIRECTIVE.
8. Remedies; Limitations of Remedies.
In the event of a breach of any warranty contained herein, Cobalt Archive will use commercially reasonable efforts to provide Client with an error correction or work-around that corrects the reported non-conformity.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR SOFTWARE, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. COBALT ARCHIVE’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO THIS SERVICE AGREEMENT, NOTWITHSTANDING THE FORM IN WHICH ANY ACTION IS BROUGHT (E.G., CONTRACT, TORT, OR OTHERWISE), WILL BE LIMITED TO THE TOTAL FEES ACTUALLY RECEIVED BY COBALT ARCHIVE FROM CLIENT FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES WILL BE AGGREGATED TO DETERMINE IF THE LIMIT HAS BEEN REACHED.
THE ABOVE LIMITATIONS OF LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FAVORABLE FEES CHARGED BY COBALT ARCHIVE RELATIVE TO THE SERVICES DESCRIBED HEREIN, AND ARE MATERIAL TERMS HEREOF.
Neither party may assign this Service Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Service Agreement without the other’s consent in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Service Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Service Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
Any legal notice under this Service Agreement will be in writing and delivered by personal delivery, express courier, or certified or registered mail, postage prepaid and return receipt requested. Notices will be deemed to be effective upon personal delivery, one (1) day after deposit with express courier, five (5) days after deposit in the mail. Notices will be sent to Client at the address set forth on the Plan Settings Form or such other address as Client may specify. Notices will be sent to Cobalt Archive at the following address: Cobalt Archive, Riverside Center, 275 Grove Street, Suite 2-400, Newton, MA 02466.
11. No Agency.
The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Service Agreement will not be construed to create or imply any partnership, agency, or joint venture.
Client grants Cobalt Archive the limited right to disclose that Client is a customer of Cobalt Archive. Cobalt Archive agrees to obtain the prior written approval for any use of Client’s name in any print marketing materials, press release, blog posts, case studies or white papers.
If for any reason a court of competent jurisdiction finds any provision or portion of this Service Agreement to be unenforceable, that provision of the Service Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Service Agreement will continue in full force and effect.
14. Electronic Signatures and Communications.
The parties agree that electronic signatures, whether digital or encrypted, or click-through acceptance, by an Authorized User or a party’s authorized signatory are intended to authenticate such signatures and give rise to a valid, enforceable, and fully effective agreement. The parties expressly agree that any terms in Client’s purchase Plan Settings Update, or electronic communications form no part of these Service Terms.
Cobalt Archive may make modifications to this Service Agreement and these Service Terms by posting a revised version to www.CobaltArchive.com/terms-of-service. Client unequivocally indicates acceptance of any such modifications by (a) accepting the version of the Service Agreement and these Service Terms with the modified terms at the product log in page; (b) executing an Plan Settings Form including the modified terms; or (c) continued use of the Services for 30 days following the earliest notice provided to an Authorized User of the modification.
D. General Terms.
1. Disclaimer of Liability.
Cobalt Archive makes no warranties or representations about the accuracy or completeness of the Sites or the Sites’ Materials. Cobalt Archive does not endorse and is not responsible for the accuracy or reliability of any opinion, advice or statement made through the Sites by any party other than Cobalt Archive. Cobalt Archive is not responsible for technical problems that may hinder the efficacy of a transaction on the Sites.
THE SITES AND THE MATERIALS, INFORMATION, SERVICES, AND PRODUCTS IN THE SITES, INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COBALT ARCHIVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. COBALT ARCHIVE DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. COBALT ARCHIVE DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
2. Limitation of Liability.
IN NO EVENT WILL COBALT ARCHIVE BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL, DAMAGES, OR ANY DAMAGES WHATSOEVER, EVEN IF COBALT ARCHIVE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE FROM THE SITES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold harmless Cobalt Archive, its officers, directors, employees, agents, licensors, suppliers, successors and assigns (collectively the “Provider”) from and against all liabilities, losses, expenses, damages and costs, including reasonable attorneys’ fees, whether or not a lawsuit or other proceeding is filed, arising out of or relating to: (i) any violation of these Terms; (ii) your use of the Sites or Materials, or (iii) any transaction or activity related to your use of the Sites. In the event you fail to promptly indemnify and defend such claims or pay the expenses of the Provider, as provided above, the Provider has the right to defend itself, and in that case, you shall reimburse the Provider for all of its reasonable attorney’s fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of the Provider’s written request.
4. Governing Law.
Your use of the Sites is governed in all respects by the laws of the Commonwealth of Massachusetts without regard to choice of law provisions. You agree that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to the Sites (including but not limited to the purchase of Cobalt Archive products) will be in the state or federal courts located in Middlesex County, Massachusetts. EACH PARTY HERETO IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO OR ARISING OUT OF THE AGREEMENT.
5. Dispute Resolution.
In the event of a dispute between Cobalt Archive and Customer, the dispute will be escalated internally in good faith; first through designated Cobalt Archive personnel and this person’s equivalent at Customer; then through another designated Cobalt Archive personnel and this person’s equivalent at Customer. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. Any dispute arising out of or relating to the Agreement, including the breach, termination or validity hereof, which has not been resolved by the foregoing negotiation procedure within 90 days of the initiation of such procedure, may then otherwise be dealt with according to the provisions of the Agreement. This dispute resolution procedure will not affect the obligation of either party to perform, subject to Cobalt Archive’s right to suspend access to the Services in accordance with the Service Terms or the right of either party to enforce these Terms.
6. Statute of Limitations.
Any cause of action or claim you may have with respect to the Sites must be commenced within one (1) year after the claim or cause of action arises.
Cobalt Archive’s failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice acts to modify any of these Terms.
Cobalt Archive makes no representation that materials on the Sites are appropriate or available for use in other locations, and access to them from territories where their content is illegal is prohibited.
Those who choose to access the Sites from locations outside Massachusetts do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the materials in violation of United States export laws and regulations. Any claim relating to the materials is governed by the laws of the State of Massachusetts.
Cobalt Archive and its affiliates are not liable for damages as a result of any delay or other failure of performance due to causes beyond its reasonable control including, without limitation, acts of God, acts of customer or any of its representatives, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, terrorism, telecommunications interruptions or computer viruses.
These Terms are effective from December 5, 2018.