If your Subscription Plan is dated on or before May 1, 2021 then click here for applicable terms of service. If your Subscription Plan is dated on or after May 2, 2021, then click here for applicable terms of service.

Cobalt Subscription Terms of Service

These Subscription Terms of Service (“Agreement”) between Cobalt Software, Inc., a Delaware corporation with its principal office at 2 Financial Center, 60 South Street, Suite 820, Boston, MA 02111 (“Cobalt”) and the Client listed on the Subscription Plan is entered into effective as of the date set forth on your Subscription Plan (defined below) (“Effective Date”). Cobalt and Client can each be referred to individually as a “Party” or collectively as “Parties.” By clicking through, executing a Subscription Plan, or otherwise agreeing to its binding quality, for good and valuable consideration, the sufficiency of which is hereby acknowledged, Cobalt and Client agree as follows:

1. Services, Etc.
1.1. Cobalt owns and operates the websites www.cobalt.pe and app.cobaltgp.com as well as other software that enables Cobalt to provide Client with access to, and use of, certain related solutions, products, services, and data or datasets (including, without limitation, market data proprietary to Cobalt and third-party data consisting of index or other benchmark reporting data that Cobalt licenses from third-party licensors (“Third-Party Data”). Any of the foregoing consisting of data is referred to herein as the “Cobalt Data” and any of the foregoing, including, without limitation, the Cobalt Data and any professional services, is referred to herein collectively as the “Services”.

1.2. This Agreement includes a Schedule 1 that describes the specific Services that Client will receive, along with associated fees (the foregoing, collectively, the “Subscription Plan”). The Subscription Plan will be governed by and become part of this Agreement and is hereby incorporated by reference. The Services provided in connection with such Subscription Plan may not be used in any manner inconsistent with the Agreement.

2. Cobalt License Grant.
2.1. Subject to the terms and conditions of this Agreement, Cobalt hereby grants Client, for the duration of the Term, a non-exclusive, non-sub-licensable right to use the Services for Client’s own internal business purposes and benefit, and for no other purpose. The license grant includes the right to maintain current copies of the Cobalt Data for legal and archival purposes only. This license grant extends to individuals who are authorized, by both Client and Cobalt, to gain access to or use Services on Client’s behalf (“Authorized Users”). Client shall ensure that Authorized Users are limited to employees, and contractors and agents who have a valid business relationship with Client and are acting at Client’s direction and under Client’s control.

2.2. Subject to Sections 5.3 and 8.3 hereof, Client and Authorized Users may also download an “Insubstantial Amount of Cobalt Data” (defined below) to a location or storage device, solely for internal use during the Term and use such Insubstantial Amount of Cobalt Data to generate aggregate-level work product or reports about Client (“Reports”). Reports may not be displayed or published publicly without Cobalt’s prior written consent. In addition, Reports containing Third-Party Data are subject to Sections 2.3 and 2.4 below. For clarity, such Reports may be displayed or published internally, such as for the review of specific interested parties, like investors or potential investors, and internal business presentations within the organization. All such Reports displayed or published shall include a reasonably conspicuous notice providing credit to “Cobalt Software, Inc.” as the source of such Reports, or similar language. “Insubstantial Amount of Cobalt Data” means an amount of Cobalt Data that has no independent commercial value, could not be used as a substitute for the Services or any part of them, and is not separately marketed by Client, Cobalt or its affiliates, or a third-party licensor of Cobalt or its affiliates.

2.3. Reports generated using Cobalt Data that includes Third-Party Data are only permitted to be used for Client’s internal purposes and cannot be disclosed or published publicly because Cobalt’s license does not permit such disclosure or publication. If Client wishes to disclose or publish such reports outside of Client’s internal use, Client will be required to obtain its own separate license from the applicable third-party licensor to use and display such Third-Party Data.

2.4. In addition to the terms of this Agreement, Client’s use of Third-Party Data included in the Cobalt Data is subject to the third-party terms located at: https://www.cobalt.pe/third-party-terms/.

3. Client License Grant.

Client hereby grants Cobalt and its affiliates, for the duration of the Term, a non-exclusive, non-sublicensable license to use any data provided to Cobalt (“Client Data”), for the purposes of providing the Services and which may be required for Cobalt to perform its obligations under this Agreement. The license grant includes the right to create, maintain and implement current copies of Client Data for back-up, operational, legal and archival purposes.

4. Fees and Payment for Services.
4.1. Client agrees to pay Cobalt fees for Services (“Fees”) as set forth in the Subscription Plan. All Fees will be billed annually in advance, and Client shall pay such Fees within thirty (30) days of receipt of invoice. Fees are nonrefundable and Client is responsible for all Fees accrued under access credentials issued to Client. If Client believes that an invoice is incorrect, Client must notify Cobalt in writing within 60 days of the due date of the applicable invoice, otherwise Client will be deemed to have agreed to the accuracy of such invoice. If Client does not pay all invoiced and undisputed fees in full within the foregoing 60-day grace period following the due date of the applicable invoice, Client will owe Cobalt interest in the amount of 1% per month on all overdue undisputed amounts, compounded monthly, beginning after such grace period, along with Cobalt’s reasonable collection costs and attorneys’ fees, and Cobalt may immediately limit, restrict or suspend Client’s access to any portion of the Services without credit or refund.

4.2. Client shall be responsible for, in addition to the amounts set forth in the Subscription Plan, all taxes (excluding those based upon Cobalt’s net income), fees, and assessments now or hereafter imposed by any governmental authority directly related to any of the rights or privileges (including access to and use of the Services granted to Client by Cobalt under this Agreement).

4.3. Client’s obligation to pay Cobalt is not contingent on if/when Client provides its ACH information or first uses the Services. If Client’s policies require a purchase order to pay invoices, Client must issue such purchase order to Cobalt no later than the Effective Date. Client will provide Cobalt with its most current payment related information and promptly notify Cobalt of any updates to such information.

5. Term and Termination.
5.1. This Agreement shall be effective beginning on the Effective Date and shall end on the first anniversary of the Effective Date, unless otherwise specified on Schedule 1. Such one-year term or other term so specified on Schedule 1 is the “Initial Term”. Thereafter, this Agreement shall automatically be renewed for additional one-year terms (each, a “Renewal Term”), unless either party gives three months’ written notice to the other prior to the expiration of the then-current Term (defined in the next sentence) of its desire to not renew. “Term” means, as the context requires, either (i)any of the Initial Term or any Renewal Term or (ii) the Initial Term plus all Renewal Terms.

5.2. This Agreement may be earlier terminated by either Party, in whole or in part, (i) if the other Party materially breaches a provision of this Agreement and fails to cure such breach within ten (10) days after receiving written notice of such breach from the non-breaching Party, or (ii) immediately upon written notice, if the other Party makes any assignment for the benefit of creditors, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within ninety (90) days.

5.3. Upon expiration or termination of the Agreement, Client’s right to access and use the Services shall immediately terminate, and, except as otherwise expressly permitted by this Agreement, any and all Cobalt Data that has been downloaded must be destroyed or returned to Cobalt; provided, however, that Client shall not be required to expunge any Insubstantial Amount of Cobalt Data that has been incorporated into Reports pursuant to Section 2.2 above, so long as Client uses reasonable efforts to destroy any such retained Insubstantial Amount of Cobalt Data in accordance with its standard document retention policies. Cobalt shall have no obligation to maintain or provide any Client Data and may, unless legally prohibited, delete all Client Data in its systems or otherwise in its possession or under its control.

5.4. Cobalt has an unrestricted right to immediately terminate or suspend the access of any of the Authorized Users without prior notice to Client if Cobalt has reasonable grounds for believing such Authorized User has violated the license limitations or usage restrictions of this Agreement. Cobalt will notify Client promptly after taking such action.

5.5. Those provisions of this Agreement which by their nature should survive termination, shall so survive termination, including, without limitation, ownership provisions, warranty disclaimers, intellectual property related restrictions, indemnification obligations and limitations of liability. In addition, all remedies for breach shall survive any termination of the Agreement.

6. Cobalt’s Obligations.
6.1. During the Term, Cobalt will make the Services available to Client in accordance with this Agreement.

6.2. Cobalt will not make available Client Data to other customers of the Services or to other third parties unless expressly directed by Client through the Services, or as otherwise permitted by this Agreement, or as required to comply with any applicable laws or regulations.

6.3. Cobalt will use commercially reasonable efforts to safeguard Client Data in its possession from any (i) unauthorized disclosure, access, use or modification; or (ii) misappropriation, theft, destruction, or loss.

6.4. Cobalt will use commercially reasonable efforts to provide support and maintenance for the Services in accordance with its standard practices. Cobalt is not required to provide resolutions for immaterial defects or defects due to modifications of the Services made by anyone other than Cobalt (or anyone acting at Cobalt’s direction). Cobalt will have no obligation to provide updates such as patches or revisions, except for updates that it makes generally available to all customers.

6.5. Cobalt agrees to maintain in full force and effect for the Term hereof all insurance or bonds required by law or this Agreement.

7. Client Obligations.
7.1. Client is responsible for activity occurring under Authorized User accounts and shall ensure that it and Authorized Users are in compliance with this Agreement. Client is responsible and liable for any and all breaches of any of its obligations and restrictions in this Agreement by any of its Authorized Users, employees or independent contractors.

7.2. Client will use best efforts to ensure that any information provided to Cobalt, including Client Data, is accurate and that Client will ensure that it possesses all rights and authority necessary to provide such Client Data to Cobalt and to grant Cobalt the rights as contemplated by this Agreement.

7.3. Client shall not upload, provide or submit (a) any special categories of data as defined in Article 9 of the EU General Data Protection Regulation (GDPR); and/or (b) any individual’s first name and last name (or first initial and last name) in combination with any of the following that relate to an individual person: (i) Social Security or individual taxpayer identification number; (ii) driver’s license number or state-issued identification card number; or (iii) financial account number, or credit or debit card number, access code, personal identification number or password that would permit access to an individual’s financial account.

7.4. Client shall, and is solely responsible for, obtaining and operating all means modems, servers, software, network and communications equipment and ancillary services (“Systems”) needed to connect to, access or otherwise use the Services, including, without limitation, corresponding backup, recovery and maintenance services. Client shall ensure that all Systems are compatible with the Services and shall maintain the integrity and security of Systems (physical, electronic and otherwise) that are owned, controlled or procured by Client.

7.5. Except as otherwise explicitly permitted pursuant to this Agreement, Client shall not, nor permit any other Party or assist any other Party (including any Authorized User) to do any of the following: (i) license, sublicense, sell, resell, transfer, rent, lease, assign, distribute, disclose, or otherwise commercially exploit the Services; (ii) copy, modify or make derivative works based upon the Services; (iii) use the Services in a manner that infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (iv) access the Services for competitive purposes or use the Services for any purpose other than its own internal use; (v) create any software, documentation or service that is similar to any of the Services or any documentation provided in connection therewith; (vi) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Services; (vii) remove, obscure or modify a copyright or other proprietary rights notice in the Services; (viii) use the Services in a manner that is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (ix) attempt to gain or permit unauthorized access to the Services or its related systems or networks.

8. Proprietary and Other Rights.
8.1. Each Party’s trademarks, service marks, copyright, patents, graphics, logos, and other intellectual property used in connection with the Services are trademarks or registered trademarks of such Party, its licensors or other third parties. Except as explicitly granted, nothing herein grants a Party any right, title or interest in the other Party’s technologies or intellectual property, and each Party or their licensor’s reserves all rights.

8.2. As between Cobalt and Client, all right, title, and interest in and to the Services and Cobalt Data including, without limitation, all rights therein, and all derivatives, translations, modifications and enhancements thereof, are, and shall remain, owned exclusively by Cobalt or Cobalt’s This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Services. Cobalt alone shall own all rights, title and interest in and to any suggestions, enhancement requests, feedback, or recommendations provided by Client or any third party relating thereto. For the avoidance of doubt, Cobalt Data does not include Client Data.

8.3. As between Client and Cobalt, Client exclusively owns all rights, title and interest in and to all Client Data. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Client Data, and hereby warrants that that it has and will continue to have all rights and consents necessary to allow Cobalt to use all such data as contemplated by this Agreement.

8.4. Client agrees that as part of providing the Services, Cobalt may collect, use and disclose quantitative data derived from the use of the Services for industry analysis, analytics and other business purposes. All data used and disclosed will be in aggregate form only and will not identify Client or Authorized Users. For clarity, Cobalt will not use Client Data, whether de-identified or not, for creating benchmarks to be shared with or made public to third parties without Client’s prior written consent.

9. Confidentiality.

“Confidential Information” means, subject to the remainder of this paragraph, information one Party shares with another that the disclosing Party identifies as confidential or the receiving Party should reasonably understand to be confidential given the circumstances and the nature of the information. Confidential Information does not include information that the receiving Party can demonstrate: (i) it had in its possession without restriction before receipt from the disclosing Party, (ii) is publicly available through no fault of the receiving Party, (iii) it rightfully received from a third party without a duty of confidentiality, or (iv) is independently developed without use of or reference to the other Party’s Confidential Information. The receiving Party may use Confidential Information only to fulfill its obligations under this Agreement and to exercise the rights expressly granted to it under this Agreement with respect to such Confidential Information, and the receiving Party must use at least reasonable care to prevent any unauthorized use or disclosure of Confidential Information. The receiving Party may only share Confidential Information with its employees, agents and contractors who need to know it for the purposes of this Agreement, as long as they are bound to confidentiality obligations consistent with this Agreement; provided, however, that each Party may share confidential information with professional advisors such as auditors or attorneys who are professionally bound to confidentiality and with affiliates so long as such affiliates adhere to the terms of this Section 9. If compelled to do so by law, the receiving Party may disclose Confidential Information as long as it provides reasonable prior notice to the disclosing Party, unless a court orders that the disclosing Party not be given notice, and reasonably cooperates with the disclosing Party in its efforts to limit any such disclosure or to obtain a protective order. The terms and conditions, but not the existence, of this Agreement will constitute Confidential Information.

10. Third-Party Websites

The Services may contain links to non-Cobalt websites, services, or resources (“Third Party Websites”). These links are provided as a convenience and for informational purposes only; they do not constitute an endorsement or an approval by Cobalt of any of the products, services or opinions of the corporation or organization or individual. Cobalt assumes no responsibility for the content, accuracy, privacy policies, legality or practices of the Third Party Website or for that of subsequent links. Client understands that any access to Third Party Websites is at their own risk and Cobalt shall have no liability arising out of or related to such Third-Party Websites and/or their content or any damages or loss caused or alleged to be caused by or in connection of any purchase or use of any such content, goods or services available on or through any such Third Party Websites. For clarity, Cobalt is not a party to or responsible for any transaction Client may enter into with any such third-party, even if Client is made aware of such third-party from Cobalt, by way of reference or link provided by Cobalt.

11. Warranties

Each Party represents and warrants to the other that: (i) it is duly organized and in good standing under the laws of the jurisdiction of its organization; (ii) it has all corporate authority to execute and perform the Agreement; (iii) its execution of the Agreement will not conflict with or violate any other agreement to which such Party is a party; and (iv) will not knowingly introduce viruses/malware to the other Party’s systems.

12. Disclaimers.
12.1. The Services, including, without limitation, the Cobalt Data, are provided for informational use only and do not constitute and should not be construed as: (i) a solicitation or offer; (ii) a recommendation to acquire or dispose of any investment or to engage in any other transaction; or (iii) advice or recommendations of any nature whatsoever, including but not limited to investment or legal advice. For the avoidance of doubt, Cobalt in no way serves as a placement agent and does not serve to assist any party in raising or acquiring financing.

12.2. Cobalt has no special relationship with or fiduciary duty to Client and Cobalt has no control over, nor any duty to take any action regarding (i) Authorized Users; (ii) Client Data; (iii) Client’s use of Cobalt Data; or (iv) any actions taken by Client based on Cobalt Data.

12.3. Under no circumstances will Cobalt be liable in any way for any Cobalt Data, including, but not limited to, any errors or omissions in Cobalt Data or any loss or damage of any kind incurred in connection with use of or exposure to any information posted, emailed, accessed, transmitted, or otherwise made available via the Services. Client acknowledges that all Cobalt Data used or accessed using the Services is at Client’s own risk and Client may be solely responsible for any damage or loss to any party resulting therefrom. Cobalt reserves the right to modify the Services and remove any Cobalt Data, in whole or in part, from the Services at any time, for any or no reason.

12.4. WITHOUT LIMITING ANY OF THE DISCLAIMERS HEREIN, COBALT PROVIDES ALL SERVICES, AND ANY OTHER RELATED MATERIALS, “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, TIMELINESS, RELIABILITY, COMPLETENESS, THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE RESULTS OF USING THE SERVICES OR COBALT DATA WILL MEET CLIENT REQUIREMENTS, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

13. Mutual Indemnity.
13.1. Cobalt will indemnify, defend and hold harmless Client, its officers, directors, employees and representatives from any third-party liability or expense (including reasonable attorney’s fees) (“Liabilities”) arising from any third-party claim that Services (not including any Third-Party Data, services or other intellectual property (e.g., Third-Party Websites)) in the form provided by Cobalt infringe third-party US intellectual property rights. Cobalt shall have no obligation for claims arising from or related to: (i) combination of Services with products or services not supplied by Cobalt, where the cause of action would not have arisen but for such combination; (ii) adaptation or modification of Services by or on behalf of Client, where the cause of action would not have arisen but for such adaptation or modification; (iii) Client’s failure to follow instructions provided by Cobalt which would have cured the cause of action, provided that following such instructions would not have caused Client substantial additional cost; (iv) use of the Services other than as expressly authorized herein, or (v) Client’s continued use of a version of the Services other than the most recently released version, where the cause of action would not have arisen if such most recently released version had been used.

13.2. Client will indemnify, defend, and hold harmless Cobalt, its officers, directors, employees and representatives from any Liabilities arising from any third-party claim arising out of (i) Cobalt’s use of Client Data in accordance with this Agreement; or (ii) use of the Services in a manner that breaches the Agreement.

13.3. Each Party’s indemnification obligations are conditioned upon: (i) the indemnified Party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure); (ii) indemnitor having sole control and authority with respect to the defense and settlement of any such claim; and (iii) the indemnified Party cooperating fully with indemnitor, at indemnitor’s request and sole cost and expense. The indemnitor shall not, without the prior written consent of the indemnified Party (not to be unreasonably withheld or denied), agree to any settlement of any such claim that does not include a complete release of the indemnified Party from all liability or that imposes any admission, liability, obligation or restriction on the indemnified Party. Without limiting the foregoing, the indemnified Party may participate with its own counsel, at its own expense.

14. Limitation of Liability and Damages.

EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF BREACHES OF A CLIENT’S OBLIGATION TO PAY ANY FEES FOR SERVICES ALREADY PROVIDED, (i) IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS, OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER FOR PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF THE CAUSE OF ACTION AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; AND (ii) IN NO EVENT WILL A PARTY’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OWED BY CLIENT UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS’ PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THESE LIMIATIONS APPLY EVEN IF THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. IN ADDITION, THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

15. Export & Anti-Bribery Compliance.
15.1. Each Party represents and warrants that neither itself, nor its controlling parties, directors, officers, or employees, contractors, vendors, or agents that will take any action in relation to this Agreement, are (i) included on any of the sanctions or denied party lists maintained by the U.S. Government, as may be updated from time to time, such as the Specially Designated Nationals and Blocked Persons list and Foreign Sanctions Evaders List administered by the U.S. Department of Treasury, sanctions lists administered by the Department of State, and the Denied Persons List, Unverified List, and Entity List maintained by the U.S. Department of Commerce’s, or by any government authority in the countries where such Party operates or activity within the scope of this Agreement will take place (“Sanctioned Parties”); or (ii) resident in, located in, or formed in any country with which trade is prohibited under U.S. sanctions laws, currently including Cuba, Iran, North Korea, Syria, and the Crimea territory (“Sanctioned Jurisdictions”).

15.2. Neither Party shall (i) engage in commercial bribery or kick-backs that are prohibited by any applicable law or (ii) use, transfer, or release Service(s) to, or take any activity in relation to this Agreement, in Sanctioned Jurisdictions and/or with individuals or entities that are Sanctioned Parties. In addition, each Party shall fully comply with all anti-corruption and anti-bribery laws of the countries in which the Parties operate, including the U.S. Foreign Corrupt Practices Act. Neither Party shall offer, promise, pay, or give anything of value, directly or indirectly, to or from a department, agency, or instrumentality of a government or public organization, (including candidates, wholly or partially government-owned or controlled company or business, or political parties (each, an “Official”) in order to influence the Official’s official acts and decisions, to induce an Official to use his or her influence with a government or instrumentality thereof, or otherwise secure any improper advantage.

16. General.
16.1. Publicity. Except in order to identify Client as a customer, Cobalt is prohibited from using Client name and logo without Client’s prior written consent.

16.2. Assignment. This Agreement and the licenses granted herein are not transferable nor assignable without prior written consent of the non-assigning Party; provided, however, that either Party upon written notice to the other Party may assign this Agreement to any of its affiliates (with at least fifty (50%) control or common control). This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the Parties.

16.3. Independent contractors. The Parties enter into the Agreement as independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Neither Party has the power to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

16.4. Headings. Headings for each section have been included herein for convenience, however, such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.

16.5. Notices. Notices must be in writing and are effective when: (i) delivered personally; (ii) by overnight courier to: (A) in the case of Client, the applicable address first listed above and (B) in the case of Cobalt, Cobalt Software, Inc., c/o FactSet Research Systems Inc., 45 Glover Ave, 7th Floor, Norwalk, CT 06850, Attention: Legal (with an email copy sent as set forth in clause (iii)(B)); or (iii) sent by email to: (A) in the case of the Client, the billing email for Client or any other email provided by Client for the purpose of receiving such notices and (B) in the case of Cobalt, each of notice@cobaltgp.com and legal@factset.com. If the sending Party receives an error notice because the receiving Party has changed its email address without formally notifying the sending Party, the email notice is deemed effective as long as the sending Party used the last email address provided by the other Party for the express purpose of receiving notices and attempts to reach the receiving Party by phone or by forwarding the notice to the contact email address on the receiving Party’s website.

16.6. Enforceability. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

16.7. Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall in no way affect that Party’s right to enforce such provisions, nor shall the waiver by either Party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.

16.8. Governing Law. This Agreement is governed by the laws of the State of New York, without regard to its conflicts of laws provisions. The Parties agree to submit to the exclusive jurisdiction of the courts located in New York County, New York, for the resolution of any dispute or claim relating to this Agreement. THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, CLIENT AND COBALT ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM THAT MAY ARISE UNDER THIS AGREEMENT.

16.9. Force Majeure. Neither Party will be liable for failure or delay in performance due to causes beyond its reasonable control, including without limitation: acts of God, epidemics, terrorism, war, riots, fire, earthquake, flood or failure of internet or communications infrastructure.

16.10. Electronic means. Any requirement for a “written” statement can be fulfilled by using a digitized version communicated by electronic means such as facsimile or email, provided the identity of the sender and integrity of such electronic means can be determined with sufficient certainty.

16.11. Counterparts. This Agreement may be executed in one or more counterparts. Faxed or emailed PDF copies of a Party’s signature or signatures exchanged by digital process (e.g., DocuSign®) constitute valid and binding originals.

16.12. Updates: Client agrees that Cobalt may, in its sole discretion, update, change, or replace any part of these Subscription Terms of Service at any time by positing a notice on this website, providing notice pursuant to Section 16.5 of the Agreement, or any other means. Client’s continued use of or access to the Services following such notice, constitutes acceptance of the revised terms.

16.13. Entire Agreement. Both Parties agree that this Agreement is the entire and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications and waivers of any provisions hereof must be in writing, signed by both Parties, except as otherwise provided herein.

Addendum 1
Independent Controller Data Processing Addendum

The Parties acknowledge that each is a separate and independent Controller of any Personal Data included in the Services (“Included Data”). The Parties do not and will not Process Included Data as joint controllers. Each Party shall comply with the obligations that apply to it as a Controller under the GDPR, and each Party shall be individually and separately responsible for its own compliance.

Client shall Process Included Data only for the purposes set forth herein in the Agreement, or as otherwise agreed in writing by the Parties, provided such Processing strictly complies with the GDPR and any other applicable privacy laws, and Client obligations under this Addendum. To the extent applicable, Client shall maintain publicly-accessible privacy policies on Client websites and mobile applications, to the extent applicable, that satisfy all applicable transparency and notice requirements set forth in the GDPR with respect to Client Processing of Included Data. Notwithstanding anything to the contrary in this Addendum or the Agreement, Client shall immediately delete or destroy all Included Data in its possession upon the expiration or earlier termination of the Agreement or, if sooner, upon the conclusion of Client’s purpose for Processing such Included Data.

In the event that either Party receives a request from a Data Subject relating to the Processing of such Data Subject’s Personal Data by the other Party, the Party receiving such request will (i) promptly notify the other Party of such request, (ii) direct the Data Subject to such other Party in order to enable such other party to respond directly to the Data Subject’s request, and (iii) reasonably cooperate with such other Party in responding to such request. Without limiting the foregoing, Client agree to promptly (and in any event within five (5) business days) notify Cobalt of any Data Subject request pursuant to Article 16 (Right to rectification), Article 17 (Right to erasure), or Article 18 (Right to restriction of processing) of the GDPR that relates in any way to the Included Data.

Client acknowledges that, from time to time, Included Data may be updated, modified, augmented, or removed from the Services. Client shall regularly check and ensure it is using the most up-to-date version of the Included Data. Cobalt shall notify Client without undue delay of any changes to the Included Data (including, without limitation, any deletions) that were made in response to a Data Subject request pursuant to the GDPR.

Each Party shall implement appropriate technical and organizational measures to protect the Included Data. At a minimum, Client shall use at least the same level of privacy protection as is required by the EU-US and Swiss-US Privacy Shield Framework and Principles issued by the U.S. Department of Commerce, both available at https://www.privacyshield.gov/EU-US-Framework (the “Privacy Shield Principles”), and shall promptly notify Cobalt of any inability to provide such protection. In the event that either Party suffers a Personal Data Breach, such Party shall notify the other Party without undue delay and the parties shall reasonably cooperate with each other in taking such measures as may be necessary to notify affected Data Subjects, comply with each Party’s obligations under the GDPR, and to mitigate or remedy the effects of such Personal Data Breach.

If and to the extent Client transfer any Included Data to any third-party data processor, Client shall first enter into contractual arrangements with such third-party data processors obligating such processor to Process the Included Data in accordance with the requirements of the GDPR.

Every transfer of Included Data by Client from the European Economic Area or Switzerland to the United States shall be made pursuant to the Privacy Shield Principles, and Client shall certify to and comply with the Privacy Shield Principles for the duration of the Agreement.

All capitalized terms used herein without definition will have the same meanings as specified therefor under the GDPR.

 

Effective Date: April 27th, 2022