Please Read Carefully.
Updated: August 1, 2015
By using the Services, you signify your agreement with this Terms of Service and SOW, if applicable, and agree that you read, understand and agree to be bound by all the terms and conditions of this Terms of Service and SOW, if applicable, as well as all other applicable rules or policies, terms and conditions and/or agreements that are and/or may be established by Cognitive Advisors from time to time and the foregoing shall be incorporated herein by reference. If you are accessing the Services on behalf of your employer, you represent that you are authorized to accept these terms and provisions on your employer’s behalf. If you do not accept this Terms of Service and SOW, if applicable, now and/or in the future, please stop your use of the Services immediately, in which case any continuing access and/or use of the Services is unauthorized.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND COGNITIVE ADVISORS WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.
1. CHANGES TO TERMS
Cognitive Advisors may, at any time, for any reason, make changes to the Services and/or modify this Terms of Service in its sole and absolute discretion. If Cognitive Advisors makes changes and/or modifications that affect your use of the Services, we will post notice of the change and/or modification on this Terms of Service page and change the ‘Updated’ date set forth above. You agree that your continued use of the Services following changes and/or modifications will constitute your acceptance of such changes and/or modifications. We may also provide you additional forms of notice as appropriate under the circumstances. If you do not agree to the changes, you shall close your account and shall not use the Services offered after the effective date of the changes and/or modifications. Please revisit this Terms of Service regularly to ensure that you stay informed of any changes and/or modifications.
Cognitive Advisors has developed and sells subscriptions to the TREK Learning Experience ManagerTM an organizational software as a service product and provides consulting services and support services related thereto. Our learning experience management system enables you to build and manage, track and measure informal and experiential learning.
a. Access to Services. Cognitive Advisors retains the right, in its sole discretion, to deny service and/or access to and/or use of the Services to anyone at any time and for any reason. While we use reasonable efforts to keep the Services accessible, the Services and/or your account may be unavailable from time to time. You understand and agree that there may be interruptions to the Service and/or access to your account due to circumstances within Cognitive Advisors’ control (e.g., routine maintenance) and outside of Cognitive Advisors’ control. You acknowledge and agree that the access to and/or use of the Services is at your own risk, including without limitation the risk that you might be exposed to content that is offensive, indecent, inaccurate and/or objectionable. The Services may be modified, updated, suspended and/or discontinued at any time as determined by Cognitive Advisors in its sole and absolute discretion and without notice and/or liability.
b. Eligibility. The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers get parental consent before they knowingly collect personally identifiable information online from children under the age of thirteen (13). Cognitive Advisors does not knowingly collect and/or solicit information from children under the age of thirteen (13). To access and/or use the Services, you must be eighteen (18) years or older or have the requisite power and authority or possess legal parental or guardian consent to enter into this Terms of Service. If we learn we have collected personal information from a child under the age of thirteen (13), we will delete the information, so please contact us at email@example.com if you think a child has provided us personal information.
c. Creating an Account. You may establish an account through the Services. Your account requires you to (i) indicate agreement to this Terms of Service, (ii) provide contact information, and (iii) submit any other form of authentication required during the enrollment process, as determined by Cognitive Advisors in its sole and absolute discretion. If you establish an account with Cognitive Advisors, you agree to provide true, accurate and current information in connection with your account. You are responsible for updating and correcting information you have submitted to create and/or maintain your account. You shall assign each individual User of the Service a unique logon or identification (“ID”). You may not permit any unique logon or ID to be used by more than one (1) individual. Nevertheless, you may deactivate and reallocate logons or IDs for the Service to different individual Users, as may be necessary from time to time. You are responsible for the management and administration of any logons and IDs (and any associated passwords and access privileges) used to access the Services as set forth herein and in the documentation provided by Cognitive Advisors. You understand and agree that Cognitive Advisors shall have no responsibility for any incident arising out of, or related to, your account settings. You shall strictly maintain the confidentiality of all such logons, IDs and passwords, and you are solely liable for all transactions, activities, and other consequences resulting from the use and/or disclosure of such logons, IDs and passwords. You shall promptly report to Cognitive Advisors any breach of confidentiality with respect to such logons, IDs, passwords, and/or the Service, and/or any other problem with the Service, of which you become aware. In no event shall you allow the Service to be accessed and/or used by parties other than you and/or your Users. You acknowledge and agree that you shall ensure that your Users comply with the terms and conditions set forth herein related to the Service and shall be liable for your User’s breach of any such terms and conditions. For purposes of this Terms of Service, a “User” shall mean any learner, administrator, coach, group administrator and/or observer listed in the system whose status is “active” at any time during any given month.
d. Support Services. Cognitive Advisors shall provide support services (“Support Services”) related to the Services as described herein. Cognitive Advisors shall provide standard Support Services for up to three (3) of your administrators which shall include: (i) assisting you with the operation of the features and functions of the Services; (ii) identifying and verifying causes of suspected errors in the Services; and/or (iii) providing error corrections for verifiable errors within the Service within a reasonable amount of time after discovery of such error. For avoidance of doubt, you acknowledge and agree that Cognitive Advisors is not required to provide support to your Users and any such support services shall be subject to the parties entering into a separate support agreement. Support Services shall be provided to you Monday through Friday during the hours of 8:30am to 5:30pm Central Time and shall exclude Holidays. “Holidays” means United States holidays, New Year’s Day, President’s Day, Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving Day, Christmas Eve and Christmas Day. Any Support Services provided outside of Business Hours shall be provided at Cognitive Advisor’s then-current rate. Emergency support is available 24/7/365 for the unlikely event of an emergency as determined by Cognitive Advisors in its sole and absolute discretion. Cognitive Advisors is not obligated to provide Support Services that are required as a result of your acts and/or omissions and/or causes external to the Service, including without limitation (a) modifications, alterations and/or additions to the Service by parties other than Cognitive Advisors and/or expressly authorized by Cognitive Advisors in writing; (b) your failure to enter the data into the Service in accordance with the documentation and/or (c) errors arising out of and/or related to any third party component that is used in conjunction with the Service.
e. Maintenance. Cognitive Advisors will implement updates, patches and bug fixes with respect to the Service as may, from time to time, be developed and applied to the Service by Cognitive Advisors. Any maintenance and/or new version releases shall be deemed to be a part of the Service and shall be subject to the terms and conditions of this Terms of Service.
f. Training. Cognitive Advisors will provide your administrators with two (2) hours of training at no cost, which shall include providing you with access to a webinar and documentation related to the Service. In the event you request additional training, Cognitive Advisors shall provide such training in its discretion at its then-current rates.
g. Out of Scope Services. In the event you request additional services outside the scope of Services described herein including without limitation consulting services, then Cognitive Advisors may provide such services at Cognitive Advisors then-current rates pursuant to a separate agreement to be executed between the parties.
h. Communications from Cognitive Advisors. By creating an account, you agree to receive certain communications in connection with the Services. For example, you might receive comments, promotions, events and/or features. When you access and/or use the Services, you are communicating with us electronically, and you consent to receive communications from us electronically. We will communicate with you by e-mail and/or by posting notices on the Service. You acknowledge and agree that all agreements, notices, disclosures and/or other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
4. YOUR OBLIGATIONS
a. Cooperation. You shall promptly and fully cooperate with Cognitive Advisors. You shall ensure that your network, systems and equipment comply with the relevant specifications provided by Cognitive Advisors from time to time and shall provide Cognitive Advisors with information as may be required by Cognitive Advisors in order to provide the Services. You are responsible for entering all Client Content in the Service.
b. Your Conduct. You shall not access, store, distribute and/or transmit any Viruses and/or any material during the course of your use of the Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing and/or racially and/or ethnically offensive, (ii) facilitates illegal activity and/or (iii) causes damage and/or injury to any person and/or property. “Virus” shall mean any thing or device (including without limitation any software, code, file or program) which may prevent, impair and/or otherwise adversely affect the operation of any computer software, hardware and/or network, any telecommunications service, equipment and/or network and/or any other service and/or device, prevent, impair and/or otherwise adversely affect access to and/or the operation of any program and/or data, including without limitation the reliability of any program and/or data (whether by re-arranging, altering and/or erasing the program and/or data in whole or part or otherwise) and/or adversely affect the user experience, including without limitation worms, Trojan horses, viruses and other similar things and/or devices. Notwithstanding anything herein to the contrary, Cognitive Advisors reserves the right, without liability to you, to disable and/or suspend your access to the Services in the event (a) of any breach and/or anticipated breach of this Terms of Service and SOW, if applicable, by you; (b) you and/or your Users use of the Services disrupts and/or poses a security risk to the Services and/or any other customer, may harm Cognitive Advisors’ systems and/or any third party provider and/or may subject Cognitive Advisors and/or any third-party liability; (c) you and/or your Users are using the Services for fraudulent and/or illegal activities; and/or (d) Cognitive Advisors’ continued provision of any of the Services to you is prohibited by applicable law.
c. Your Responsibilities. Except as expressly permitted by this Terms of Service, you and your Users shall not, directly and/or indirectly, without the express, prior written consent of Cognitive Advisors: (i) use and/or permit the use of, reproduce and/or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease and/or transfer any Service, any portion thereof, and/or any of your rights thereto; (ii) merge the Service or any portion thereof with any other program and/or materials; (iii) reverse engineer, decompile, disassemble, extract, and/or otherwise derive and/or attempt to derive the source code of the Service and/or any compiled software provided and/or made available by Cognitive Advisors hereunder; (iv) adapt, translate, localize, port and/or otherwise modify the Service and/or any other compiled software provided and/or made available by Cognitive Advisors hereunder; (v) remove, obliterate and/or cancel from view any copyright, trademark and/or other proprietary and/or confidentiality notice and/or legend appearing on and/or in any materials provided and/or made available by Cognitive Advisors hereunder, and/or fail to reproduce any such notice and/or legend on any copy made of any such materials; (vi) take any action that materially interrupts and/or interferes with, and/or that might reasonably have been expected to materially interrupt and/or interfere with, the Service, Cognitive Advisors’ business operations and/or other customers; and/or (vii) permit any other person and/or entity to engage in any of the foregoing conduct.
d. Your Use of the Services. You are responsible for obtaining, installing, maintaining and supporting, at your sole cost and expense, all hardware, software, telecommunications capabilities, and other technology (including without limitation responsibility for providing appropriate personal computers, Internet browser software, mobile devices, telecommunications lines, and a current account with an Internet service provider) and other equipment and services needed for you and your Users to access and use the Services as described herein. You will determine the access controls for your Users and will be responsible for activity occurring under your account, including compliance with the terms and conditions of this Terms of Service and SOW, if applicable. You agree to: (i) maintain the accuracy and completeness of information provided to Cognitive Advisors and notify Cognitive Advisors within thirty (30) days in the event of a change, and (ii) notify Cognitive Advisors immediately of any unauthorized use of your account and/or any other known breach of security.
5. FREE TRIAL; SOW’S; FEES
a. Free Trial. If you are using the Services pursuant to a Free Trial, Cognitive Advisors will begin billing you on a recurring basis immediately following expiration of the Free Trial unless Cognitive Advisors has received written notice of cancellation from you prior to the Free Trial expiration. “Free Trial” means a thirty (30) day period for the number of Users specified during sign-up, whereby Cognitive Advisors has allowed you to use the Services on a provisional basis without payment for such use. Upon expiration of the Free Trial Term (as defined in Section 8a), your access to the Services will terminate unless you either (i) receive an extension from Cognitive Advisors, or (ii) sign up for a subscription to the Services.
b. Statement of Work. After the expiration of the Free Trial Term, if applicable, Cognitive Advisors shall provide a subscription to the Services in a relevant duly executed statement of work under this Terms of Service (hereinafter “SOW”) in accordance with the pricing, requirements and/or other specifications set forth in such SOW. If any of the terms and/or conditions of this Terms of Service conflict with any of the terms and/or conditions of any SOW, the terms and/or conditions of such SOW will control as it relates to the Services described in such SOW in the event of a conflict.
c. Subscription Fees. Unless otherwise agreed to by the parties in a SOW, Cognitive Advisors will provide you with an invoice in advance for fees that become due hereunder for the Service (the “Subscription Fees”). In the event you increase and/or decrease the number of Users during the then-current quarter, Cognitive Advisors shall reconcile the Subscription Fees paid for such quarter with the Subscription Fees owed for such quarter as a result of any added and deleted Users and (a) in the event of an increase, Cognitive Advisors shall provide you with an invoice for the additional amounts owed within thirty (30) days after the end of each quarter or (b) in the event of a decrease, apply a credit to your subsequent invoice. All Subscription Fees and taxes due hereunder will be paid in U.S. dollars. Unless otherwise set forth in an SOW, each invoice shall be due and payable by Client to Cognitive Advisors within thirty (30) days after Client’s receipt of such invoice. All Subscription Fees due and payable by you hereunder must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. Cognitive Advisors may increase the Subscription Fees related to the Services to its then-current rate upon prior notice to you.
d. Taxes. All Subscription Fees due and payable under this Terms of Service and SOW, if applicable are exclusive of taxes, which will be added at the prevailing rate from time to time.
e. Late Payment. In the event payment for Subscription Fees is not made on or before the date such payments are due, interest will be payable and calculated daily at a rate of one and one-half percent (1.5%) per month. Cognitive Advisors may suspend Services with prior reasonable notification to you. In the event any undisputed Subscription Fees are not paid within thirty (30) days of such Subscription Fees first becoming due and payable under this Terms of Service and SOW, if applicable, Cognitive Advisors may without liability to you, disable the password, account and access to all or part of the Services. In the event of the foregoing, Cognitive Advisors shall not be obligated to provide any or all of the Services until such Subscription Fees are paid in full.
6. COMMUNICATIONS, ERRORS, INACCURACIES AND OMISSIONS
a. Communication. When you make any communication on the Service, you represent that you are permitted to make such communication. We are under no obligation to ensure that the communications on the Service are legitimate and/or that they are related only to the use of the Services. You agree to indemnify, defend and hold us harmless from any claims, demands and/or lawsuits of any kind arising from your communications on the Service. As with any other web-based forum, you must exercise caution when using the communication tools available on the Service. However, while we are not obligated to, we have the right to remove any communication at any time.
b. Errors, Inaccuracies and Omissions.
Occasionally there may be information on the Services that contain typographical errors, inaccuracies, and/or omissions that may relate to descriptions, content, promotions, and availability. We reserve the right to: (i) correct any errors, inaccuracies, and/or omissions; and/or (ii) make changes to content, descriptions, specifications, and/or other information without obligation to issue any notice of such changes, except as prohibited by law.
7. PROPRIETARY RIGHTS AND LICENSES
a. Right to Access. Subject to your payment of the Subscription Fees and accepting this Terms of Service and SOW, if applicable: (a) Cognitive Advisors grants you and your Users a limited, nontransferable, nonexclusive, revocable right to access and/or use the Services pursuant to this Terms of Service for your internal business purposes; and (b) you agree not to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sell and/or re-sell any content, software, products and/or services obtained from and/or through the Services without the express written permission of Cognitive Advisors. Cognitive Advisors has all the rights necessary to grant all the rights it purports to grant hereunder in relation to the Services and IP.
b. Ownership. Cognitive Advisors and/or its affiliates and other content providers retain all rights, title, interest and ownership of, and all IP and proprietary rights with respect to the Services, infrastructure used to provide the Services and any other information, data and/or materials provided and/or made available to you by Cognitive Advisors. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. Except for the rights expressly granted to you in this Terms of Service and SOW, if applicable, all such Service and other materials that are provided and/or made available, and all work product that is developed, under this Terms of Service and SOW, if applicable, all modifications, compilations, and derivative works thereof, and all IP and proprietary rights pertaining thereto, are and shall remain the property of Cognitive Advisors and its respective licensors (and to the extent any rights of ownership in any such materials, works, and/or rights might, for any reason, otherwise vest in you, you hereby assign such ownership rights to Cognitive Advisors).
c. Reservation of Rights. The materials, headers, videos, illustrations, photographs, graphics, icons, trade dress and/or other content on the Service (“Company Property”), as well as the organization and/or layout of the Service, are copyrighted and are protected by United States and international copyright laws and treaty provisions. Cognitive Advisors owns, controls, lawfully uses and/or licenses the Company Property on the Service. Cognitive Advisors’ name and logo may not be copied, imitated and/or used, without Cognitive Advisors’ prior written permission. Subject to the limited rights expressly granted hereunder, Cognitive Advisors and/or its third party providers reserve all right, title and interest in and to the Services and Company Property, including without limitation all related worldwide IP rights. No rights are granted to you hereunder other than as expressly set forth herein.
d. Documentation. Subject to you and your Users compliance with the terms set forth herein, Cognitive Advisors hereby grants to you and your Users a nonexclusive, world-wide, nontransferable, limited license to use, copy and distribute the documentation provided to you as it relates to the Services solely for you and your Users access to and use of the Service in accordance with the terms and conditions contained herein.
e. Client Content. You represent and warrant that all Client Content is owned by you and that you have all rights necessary to use the Client Content in connection with the Service. You retain title, ownership rights and all IP rights, in and to the Client Content, and reserve all rights not expressly granted to Cognitive Advisors hereunder. In relation to Cognitive Advisors provision of the Services, you hereby grant to Cognitive Advisors an irrevocable, worldwide, non-exclusive, perpetual, transferable, assignable and sub-licensable right and license to host, use, copy, stream, store, display, transmit, scan, adapt, reproduce, distribute and create derivative works of the Client Content in connection with the provision of the Services. “Client Content” means any logos, trademarks, service marks, data, materials, comments, information and/or content that Client enters into the Service. You shall not imply that Client Content is in any way sponsored and/or endorsed by Cognitive Advisors. You assume all risks associated with Client Content, including anyone’s reliance on its quality, accuracy, and/or reliability by you.
f. Feedback. Please keep in mind that we do not seek any unsolicited ideas and/or materials for the Services. If you provide us (in a direct mail, email and/or otherwise) with any feedback, suggestions, improvements, enhancements, recommendations and/or feature requests relating to the Services (“Feedback”), then you further grant to Cognitive Advisors a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate any such Feedback. Cognitive Advisors has no obligations to review any Feedback and may use and redistribute Feedback for any purpose without restriction in its sole and absolute discretion.
8. TERM AND TERMINATION
a. Free Trial Term. If you are using the Services pursuant to a Free Trial, this Terms of Service is entered into as of the date you initially access and/or use the Services and shall continue thereafter for a period of thirty (30) days, unless otherwise extended by Cognitive Advisors or terminated earlier in accordance with this Terms of Service (“Free Trial Term”).
b. Subscription Term. If you are not using the Services pursuant to a Free Trial and are entering into a subscription term to use the Services pursuant to an SOW, unless otherwise set forth in such SOW, this Terms of Service is entered into as of the last date the parties execute the applicable SOW and shall continue for a period of one (1) year thereafter unless terminated earlier in accordance with this Terms of Service and/or the terms of such SOW (“Initial Subscription Term”). Unless otherwise set forth in such SOW, this Terms of Service and SOW, if applicable will automatically renew for additional, consecutive one (1) year periods (each a “Renewal Subscription Term”), unless and until you or Cognitive Advisor provide written notice to the other party, at least thirty (30) days prior to the end of the then-current Subscription Term. The Initial Subscription Term and Renewal Subscription Term shall collectively be referred to herein as the “Subscription Term.”
c. Termination for Breach. If a party materially breaches this Terms of Service and/or an SOW (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Terms of Service and the applicable SOW upon written notice to the Defaulting Party. Termination of this Terms of Service and the applicable SOW will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Terms of Service, SOW and/or at law and/or in equity. Notwithstanding anything herein to the contrary, if you and/or your Users violate this Terms of Service and/or SOW and/or if we have grounds to suspect that you and/or your Users violated this Terms of Service and/or SOW and/or other use parameters included on the Service, we may suspend and/or terminate your account and/or refuse access to and/or use of the Service (or any portion thereof).
d. Termination for Convenience. Unless otherwise set forth in an SOW, either party may terminate this Terms of Service and the applicable SOW for any reason upon thirty (30) calendar days prior written notice to the other party; provided that Cognitive Advisors is not providing Services pursuant to an SOW. For avoidance of doubt, any such notice of termination shall be provided thirty (30) days prior to the end of the then-current Subscription Term for such termination to take effect at the end of the then-current Subscription Term.
e. Effect of Termination. In the event you terminate this Terms of Service and/or an SOW pursuant to Section 8c, upon termination you will immediately pay all outstanding Subscription Fees incurred through the effective date of termination. In the event Cognitive Advisors terminates this Terms of Service and/or an SOW pursuant to Section 8c or if either party terminates this Terms of Service and the applicable SOW pursuant to Section 8d, upon termination you will immediately pay all outstanding Subscription Fees owed through the end of the then-current Subscription Term.
a. Confidential Information. In the performance of Services, the parties may have access to certain information that is not generally known to others including any and all information relating to the party and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication (“Confidential Information”). The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”
b. Receiving Party. Receiving Party agrees not to use and/or disclose the Confidential Information, and may disclose the Confidential Information only as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Services in accordance with this Terms of Service and SOW, if applicable, to its officers, directors, employees, agents, members and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Terms of Service and SOW, if applicable. The Receiving Party will cause such Representatives to comply with this Terms of Service and SOW, if applicable, and will assume full responsibility for any failure to comply with the terms of this Terms of Service and SOW, if applicable. The Receiving Party will not transfer and/or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article 9) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Terms of Service and SOW, if applicable.
c. Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Terms of Service and SOW, if applicable, and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of and/or reference to the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party without use and/of or reference to the Disclosing Party’s Confidential Information and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
d. Legal Requirements. If the Receiving Party is requested and/or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation and/or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order and/or other appropriate remedy and/or waive compliance with the provisions of this Terms of Service and SOW, if applicable. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, and/or if the Disclosing Party waives compliance with the provisions of this Terms of Service and SOW, if applicable, in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
e. Confidentiality Breach. The parties agree that ownership of any IP in any materials owned by the other party shall remain with that party, and nothing in this Terms of Service and SOW, if applicable, shall imply that any right or license in respect of such IP is being granted to the other party.
f. Disposition of Confidential Information and Client Content on Termination or Expiration. Upon termination or expiration of this Terms of Service and SOW, if applicable, or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed, if requested. The obligations with respect to Confidential Information, as set forth in this Article 9, shall continue in force and effect for a period of five (5) years after termination of this Terms of Service and SOW, if applicable. Notwithstanding the foregoing, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, such confidentiality obligations shall remain for so long as such trade secret status is maintained. Upon any termination of this Terms of Service and SOW, if applicable, unless otherwise agreed to by the parties, Cognitive Advisors will store the Client Content entered in the Service for a period of three (3) months following the effective date of termination. Thereafter, any Client Content will be deleted by Cognitive Advisors.
g. Remedy. Each party acknowledges that a breach of this Article 9 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. The terms of this Article 9 shall survive the expiration or termination of this Terms of Service and SOW, if applicable.
a. Indemnification by Cognitive Advisors. Cognitive Advisors shall indemnify, defend and hold harmless, you from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorney fees, arising out of, or relating to, any claim (“Claim”) that your use of the Services constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. The indemnity in this Section, shall not apply (i) to a Claim arising from any modification of the Services by you or any third party, and/or from the use of the Services in a manner contrary to the specific business functions outlined in the documentation and/or as expressly provided under this Terms of Service and SOW, if applicable, to the extent such modification and/or use resulted in such Claim, (ii) if such Claim results from your use of the Services after notice of the alleged or actual infringement from Cognitive Advisors or any appropriate authority, and/or (iii) in the event of any breach of your obligations under this Terms of Service and SOW, if applicable, and/or the use of the Services other than in connection with this Terms of Service and SOW, if applicable, and/or in a manner not reasonably contemplated by this Terms of Service and SOW, if applicable. The indemnities set forth herein shall survive the expiration and/or termination of this Terms of Service and SOW, if applicable.
b. Indemnification by You. You shall indemnify, defend and hold harmless Cognitive Advisors, its members, trustees, employees, agents and officers, from and against any Claim that (i) Cognitive Advisor’s use of the Client Content constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license and/or other property and/or proprietary right of any third party, and/or constitutes the unauthorized use and/or misappropriation of any trade secret of any third party, and/or (ii) you and/or your Users acts and/or omissions and/or (iii) you and/or your Users access to and/or use of the Services.
c. Right to Conduct Defense. The indemnified party shall give notice to the indemnifying party of any Claim immediately upon becoming aware of the same. The indemnified party shall give the indemnifying party the sole right to conduct the defense of any claim and/or action, and/or the negotiation of any settlement, in respect of a Claim and does not at any time admit liability or otherwise settle and/or compromise and/or attempt to settle and/or compromise the said claim or action except upon the express written instructions of the indemnifying party. The indemnified party shall act in accordance with the reasonable instructions of the indemnifying party and shall give the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents. The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnified party may reasonably participate in such defense, at its sole expense.
a. General. The parties are and shall remain in compliance with all local, state and federal laws, and regulations relating to this Terms of Service and SOW, if applicable, and the performance of Services. Each party represents, warrants and covenants that it is financially solvent and that it has the requisite legal and corporate power, right, and authority to enter into this Terms of Service and SOW, if applicable, and to perform its duties and fulfill its obligations hereunder. Each party represents that it has taken all action necessary for the approval and acceptance of this Terms of Service and SOW, if applicable, and acceptance by the person entering into this Terms of Service and SOW, if applicable, on behalf of each party is duly authorized by and has been made with complete and full authority to commit the party to all terms and conditions of this Terms of Service and SOW, if applicable, which shall constitute valid, binding obligations.
b. Services. Cognitive Advisors warrants that during the term, the Service will perform in accordance with the applicable documentation; provided that your access to and use of the Service is in accordance with the terms and conditions of this Terms of Service and SOW, if applicable. In the event of a breach of the foregoing warranty, you shall provide Cognitive Advisors with written notice setting forth the details of such breach promptly after discovering such breach. Your sole and exclusive remedy and Cognitive Advisor’s sole and exclusive liability for any breach of the warranty set forth in this Section shall be for Cognitive Advisors to repair or replace the Service at no charge to you; provided, however, that if Cognitive Advisors determines in its sole discretion that it is unable through the exercise of commercially reasonable efforts to repair or replace the Service in a manner that complies with such warranty, then Cognitive Advisors will refund any Subscription Fees that you paid for such Service during the immediately preceding thirty (30) day period and reimburse any other pre-paid Subscription Fees on a prorated basis, and this Terms of Service and SOW, if applicable, shall be terminated immediately and your right to access and use the Service shall immediately cease.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
THE SERVICE, AND ANY COMPANY PROPERTY, ARE PROVIDED BY COGNITIVE ADVISORS TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS, EXCEPT AS EXPRESSLY SET FORTH IN THIS TERMS OF SERVICE AND SOW, IF APPLICABLE. COGNITIVE ADVISORS DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND WHETHER EXPRESS, STATUTORY AND/OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND FROM COURSE OF DEALING, USAGE AND/OR TRADE PRACTICE, ALL OF WHICH COGNITIVE ADVISORS EXPRESSLY DISCLAIMS. WITHOUT LIMITING THE FOREGOING, COGNITIVE ADVISORS AND/OR ITS LICENSORS MAKE NO WARRANTY THAT (A) THE SERVICES, ADVICE AND RECOMMENDATIONS, IN ANY FORM, AND/OR DOCUMENTATION PROVIDED BY COGNITIVE ADVISORS IN CONNECTION WITH THIS TERMS OF SERVICE AND SOW, IF APPLICABLE, OR COMPANY PROPERTY WILL MEET YOUR REQUIREMENTS AND/OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE AND/OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE ACCESS TO AND/OR USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE AND/OR RELIABLE; AND/OR (C) COGNITIVE ADVISORS WILL NOT BE LIABLE AND/OR OTHERWISE RESPONSIBLE FOR ANY FAILURE AND/OR DELAY IN UPDATING THE SERVICES AND/OR ANY COMPANY PROPERTY. NO ADVICE AND/OR INFORMATION, WHETHER ORAL AND/OR WRITTEN, OBTAINED BY YOU FROM COGNITIVE ADVISORS AND/OR THROUGH YOUR ACCESS TO AND/OR USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TERMS OF SERVICE AND SOW, IF APPLICABLE.
12. LIMITATION OF LIABILITY
YOUR USE OF THE SERVICE AND COMPANY PROPERTY IS AT YOUR OWN RISK. IN NO EVENT SHALL COGNITIVE ADVISORS, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, LICENSORS, AND/OR SUPPLIERS BE LIABLE TO YOU AND/OR ANYONE ELSE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA AND/OR PROFITS, WHETHER OR NOT FORESEEABLE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, AND/OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF COGNITIVE ADVISORS HAS BEEN ADVISED OF THE POSSIBIITY OF SUCH DAMAGES IN ADVANCE. THE FOREGOING SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY COGNITIVE ADVISORS ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES, IN SUCH STATES, COGNITIVE ADVISORS’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
COGNITIVE ADVISORS’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICES IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COGNITIVE ADVISORS IN CONNECTION WITH THE SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
13. LINKS AND THIRD PARTY SERVICES
b. Third Party Providers. You acknowledge and agree that (i) Cognitive Advisors utilizes third-party providers to host and provide the Services and the storage and protection of such data shall be in accordance with such third party’s terms and conditions related thereto, (ii) Cognitive Advisors shall not be responsible for any acts and/or omissions of such third party providers. The limitations set forth herein shall apply to the foregoing, (iii) you are responsible for and assume all risk arising from its use of any third party providers, (iv) Cognitive Advisors will not be liable for the availability and/or accuracy of such third-party providers and/or the content, products and/or services available from such third parties, (v) the Service shall only be supported on the operating systems, devices and browsers listed in the documentation and (vi) Cognitive Advisors shall have a reasonable amount of time to update the Service after updates are applied by third party providers that may affect such Service and during such timeframe Cognitive Advisors shall not be in breach of the warranty set forth in Article 11.
14. SEPARATE AGREEMENTS
You may have other agreements with Cognitive Advisors. Such agreements are separate and in addition to this Terms of Service and SOW, if applicable. This Terms of Service and SOW, if applicable, does not modify, revise and/or amend the terms of any other agreements you may have with Cognitive Advisors unless expressly agreed to by the parties in writing.
15. NO PROFESSIONAL ADVICE
The information available on the Services is intended to be a general information resource regarding the matters covered, and is not tailored to your specific circumstance. Cognitive Advisors does not, will not and cannot refer, recommend and/or endorse any specific professional service, product and/or procedures that are advertised on the Services. The Service is not a substitute for professional advice, and you should not construe this as legal, accounting, medical and/or other professional advice.
16. DMCA COPYRIGHT POLICY AND COPYRIGHT AGENT
Cognitive Advisors respects the intellectual property rights of others and expects you to do the same. We reserve the right to block access to and/or remove material that we believe in good faith to be copyrighted material that has been illegally distributed by you and/or other third parties and remove and discontinue service to repeat offenders. We will respond to clear notices of copyright infringement when you provide the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled.
(iv) Information sufficient to permit Cognitive Advisors to contact you, such as your physical address, telephone number, and, if available, an electronic mail address;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Contact information for Cognitive Advisors’ DMCA Agent for notice of claims of copyright infringement is: Cognitive Advisors Inc. Attn: Copyright Agent, 64 Salem Lane, Evanston, Illinois 60203.
The Copyright Agent will not remove content from the Services in response to phone or email notifications regarding allegedly infringing content, since a valid DMCA notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by fax or ordinary mail only and as further described by this Article. The Copyright Agent should be contacted only if you believe that your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on the Service linked to and/or from the Service. All other inquiries directed to the Copyright Agent will not be responded to.
17. DISPUTE RESOLUTION
a. Disputes. We want to address your concerns without filing a formal legal case. Before filing a claim against Cognitive Advisors, you agree to try to resolve the dispute informally by contacting us at firstname.lastname@example.org. We will try to resolve the dispute by contacting you via email, but if we cannot resolve the dispute within thirty (30) days of submission, you and/or Cognitive Advisors agree to resolve any claims related to this Terms of Service and SOW, if applicable, through final and binding arbitration, except as forth under ‘Exceptions to Agreement to Arbitrate’ section below and/or you opt out as described below.
b. Opt-Out. You can opt-out and decline this agreement to arbitrate by contacting Cognitive Advisors within thirty (30) days from the date that you first became subject to this arbitration provision (i.e.: the date you initially accepted this Terms of Service). You must write us at Cognitive Advisors, LLC, Attn: Opt-Out Arbitration, 64 Salem Lane, Evanston, Illinois 60203. If you opt out, neither you nor Cognitive Advisors can require the other to participate in an arbitration proceeding.
c. Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if you opt out of arbitration as described below, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The arbitration shall be held in Illinois USA and/or any other location we agree to. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings.
d. Exceptions to Agreement to Arbitrate. Either you and/or Cognitive Advisors may assert claims, if they qualify, in small claims court in Illinois. Cognitive Advisors may bring a lawsuit solely for injunctive relief to stop unauthorized use and/or abuse of the Services, breach of Cognitive Advisors’ confidential information and/or intellectual property infringement (for example, trademark, trade secret, copyright and/or patent rights) without first engaging in arbitration and/or the informal dispute-resolution process described herein.
e. Judicial forum for disputes. In the event that the agreement to arbitrate is found not to apply to you and/or your claim, you and Cognitive Advisors agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of Illinois. Both you and Cognitive Advisors consent to the foregoing venue and jurisdiction.
18. FORCE MAJEURE
Notwithstanding anything herein to the contrary, neither party shall be liable and/or deemed to be in default for any delay and/or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, and/or civil insurrection, walkouts, and/or other organized labor interruptions, telecommunications and/or utility interruptions and/or failures, fire, explosions, floods, and/or other natural disasters, any similar cause and/or any third party beyond the reasonable control of such party, and any delay and/or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”). Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment due under this Terms of Service and SOW, if applicable, except to the extent that the Force Majeure Event physically interferes with the delivery of the payment. The party whose performance is affected shall use commercially reasonable efforts to minimize the impact of such Force Majeure Event.
If any provision and/or term of this Terms of Service and/or SOW, if applicable, shall become and/or be declared illegal, invalid and/or unenforceable for any reason whatsoever, such term and/or provision shall be divisible from the other terms and conditions and shall be deemed to be deleted from them. This Terms of Service and SOW, if applicable, shall be governed in all respects by the laws of the State of Illinois, without reference to its choice of law rules. If an applicable law is in conflict with any part of this Terms of Service and/or SOW, if applicable, this Terms of Service and/or SOW, if applicable, will be deemed modified to conform to the law and the other provisions will not be affected by any such modification. No waiver by either you and/or Cognitive Advisors of any breach and/or default and/or failure to exercise any right allowed under this Terms of Service and/or SOW, if applicable, is a waiver of any preceding and/or subsequent breach and/or default and/or a waiver and/or forfeiture of any similar and/or future rights under this Terms of Service and/or SOW, if applicable. This Terms of Service and/or SOW, if applicable, is non-exclusive and Cognitive Advisors may in its sole discretion enter into arrangements with third parties to perform any services. Any provision of this Terms of Service and/or SOW, if applicable, which, by its nature, would survive termination or expiration of this Terms of Service, if applicable, will survive any such termination of this Terms of Service and/or SOW, if applicable. Neither this Terms of Service and/or SOW, if applicable, nor any rights or obligations hereunder shall be assignable or transferable by either party, in whole or in part, without the prior written consent of the other party. Notwithstanding anything herein to the contrary, Cognitive Advisors may, with prior notification to you, assign this Terms of Service and SOW, if applicable, and its rights and delegate its obligations hereunder to a purchaser of all or substantially all of Cognitive Advisor’s assets or in the event of its merger, consolidation, change in control and/or similar transaction. Any attempted assignment and/or other transfer of this Terms of Service and/or SOW, if applicable, and/or any rights or obligations hereunder will be void ab initio and will be considered a material breach of this Terms of Service and/or SOW, if applicable. This Terms of Service and SOW, if applicable, shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
If you would like to request additional information regarding this Terms of Service or for any questions regarding a commercial relationship with Cognitive Advisors, please contact us at email@example.com.