COS SYSTEMS INCORPORATED

TERMS OF SERVICE

   

IMPORTANT – READ CAREFULLY.  THESE TERMS OF SERVICE (“TERMS”) (INCLUDING THE PRIVACY POLICY AND ACCEPTABLE USE POLICY INCORPORATED HEREIN BY REFERENCE) SET FORTH THE LEGAL AGREEMENT BETWEEN YOU AND COS SYSTEMS INCORPORATED (“COS”) RELATING TO YOUR ACCESS AND USE OF CERTAIN SOFTWARE AS A SERVICE PROPRIETARY TO COS.    

BY CLICKING TO “ACCEPT” OR “AGREE” TO THESE TERMS WHEN THIS OPTION IS 

MADE AVAILABLE TO YOU OR BY ACCESSING COS’ SOFTWARE AS A SERVICE FURTHER DESCRIBED BELOW (COLLECTIVELY, “SERVICES”), WHICHEVER IS FIRST TO OCCUR, YOU AGREE THAT YOU HAVE READ THESE TERMS AND AGREE TO BE LEGALLY BOUND BY THESE TERMS.  IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “ACCEPT” OR “AGREE” AND DO NOT ACCESS OR USE THE SERVICES. 

COS may revise and update these Terms from time to time in COS’ sole discretion.  It is your responsibility to check these Terms periodically for changes.  Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes.  

You hereby agree to COS’ Privacy Policy located at https://www.cossystems.com/privacy-policy-us, or such other link as determined by COS, and COS’ Acceptable Use Policy (“AUP”) located at https://www.cossystems.com/acceptable-use-us, or such other link as determined by COS, and acknowledge that it applies to your access to and use of the Services and any and all information provided by, or collected from, you relating to your access to and use of the Services.

1. Administrator of Services; Right to use Services.  

   1. You acknowledge that is a third party administrator (the “Administrator”) of the Services and not affiliated with COS.  “Services” include (i) COS Service Zones which is a survey and demand aggregation tool enabling the Administrator to collect potential customers’ interest in better broadband and to pre-sell Internet connections in your area and (ii) COS Business Engine which is a  BSS/OSS (Business/Operations Support System) used by the Administrator to manage their broadband network and which allows you to shop on-line 24/7 for Internet services and manage your account on the Administrator’s network.  The Services are offered to you through an online platform operated solely by the Administrator.  You acknowledge that COS is not responsible or liable for your or the Administrator’s use, operation, access, maintenance, installation, or modification of the Services. You agree that COS is not responsible or liable for any loss or damage resulting from your use of Administrator’s network or any other third party websites or services.
      
   2. You are granted the right to use the Services and only for the purposes described by Administrator. You may be subject to both these Terms and separate terms of service of the Administrator. The right to use the Services is personal, limited, nonexclusive, and nontransferable. You must use the Services in a manner consistent with any and all applicable laws, rules and regulations.
   3. Third Party Content.  COS does not, unless otherwise provided: (i) undertake any obligation to review, screen, or investigate materials or other information submitted or otherwise provided by Administrator (including other users) in connection with the Services; or (ii) endorse any positions, ideas, ideologies, concepts, or opinions contained in any third-party content.  COS is not responsible for any third party materials or other information, including whether the information is accurate or suitable or available for your use, for the performance or operation of any third party website, for any services advertised or sold by any third party (including on or through a third party’s website), or for any other action or inaction by any third party.
   4. By uploading or otherwise submitting content in connection with your use of the Services, you grant COS (and its affiliates, distributors, and other contractors it may designate in its discretion) a non-exclusive, worldwide, perpetual, royalty-free, non-terminable, transferable, license, with the right to sublicense, to use, distribute, reproduce, create derivative works of, publicly display and transmit such content for its internal purposes without any compensation, attribution, or other obligation to you.
   5. You may provide your input regarding the Services, products, or business or, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Services, our website or any other products (collectively “Feedback”). COS shall be entitled to use Feedback for any purpose without notice, restriction or remuneration of any kind to you.

2. Termination.  

   1. COS may terminate your access to the Services in whole or in part if it reasonably believes you have breached these Terms. If your access to the Services is terminated, COS may exercise whatever means it deems necessary to prevent unauthorized access to the Services, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet service provider.  These Terms will survive indefinitely unless and until COS chooses to terminate them, regardless of whether any account you open with Administrator is terminated by you or the Administrator or whether you continue to use or continue to have the right to use the Services. Upon termination of these Terms, COS shall be under no obligation to store, retrieve or assist in storing or retrieving any of your data to the maximum extent permitted by law.  It shall be your sole responsibility to backup and archive any or all of your data. 

3. Restrictions.

   1. Restrictions on Your Activities.  You agree that you will not:  
   1. 1. decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Services (except as may be permitted by U.S. copyright laws);  
      2. make any modification, adaptation, improvement, enhancement, translation or derivative work from the Services;
      3. except for Intellectual Property Rights (as defined below) which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or otherwise use any Intellectual Property Rights of COS;  
      4. violate any applicable laws, rules or regulations in connection with your access or use of the Services; 
      5. remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of COS or its affiliates, partners, suppliers or the licensors of the Services or otherwise obscure or modify the manner in which the Services are displayed; 
      6. use the Services for data mining, scraping, crawling, redirecting, or compiling a collection of listings or data  for any purpose  (including, without limitation, for use by a service that is, directly or indirectly, competitive with the Services) other than authorized pursuant to these Terms;  

4. Technical Areas.  

   1. 1. Compatibility.  COS does not warrant that the Services will be compatible or interoperable with your device(s) or any other piece of hardware, software, equipment or device installed on or used in connection with your device.  You acknowledge and agree that COS and its affiliates, partners, suppliers and licensors shall have no liability to you for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.
      2. Geo-Positional Information.  The functional use of the Services may depend upon data, including, without limitation, data related to your geographic location and geo-positional data, IP address, street, mailing and billing addresses, the property owner’s information, your landlord’s information, and any other pertinent information deemed necessary by COS or Administrator, and you acknowledge and agree that your failure to provide (or make accessible) that data may limit the functionality of the Services.  COS makes no warranty with respect to the accuracy of Services provided to you in reliance on location and geo-positional data provided by you via your device.  

5. COS’ Intellectual Property. 

   1. Reservation of Rights.  The Services contain the copyrighted material, trademarks, patents, software, trade secrets, moral rights, and other proprietary information (collectively, “Intellectual Property Rights”) of COS and its affiliates and licensors. COS and its affiliates and licensors own and retain all proprietary rights in the Services and related Intellectual Property Rights. The access of such Intellectual Property Rights to you through the Services does not transfer to you or any third party any rights, title or interest in or to such Intellectual Property Rights. Any rights not expressly granted to you are fully reserved by COS and its affiliates or licensors, as applicable, and no such rights are conferred by estoppel, operation of law, implication or otherwise
   2. Confidential Information.  You agree to keep confidential the Services and to protect the contents of the Services, to limit access to the same to those who have a need to use any of them and to prevent unauthorised disclosure by your agents, officers or employees.  This obligation shall survive the modification, renewal or termination of these Terms but shall not extend to any information which is or comes into the public domain as a result of lawful acts by a third party and who is not under an obligation to keep such information confidential.

6. Disclaimers, Exclusions, Limitations, and Indemnity.

   1. Technical Requirements.  Although we take reasonable steps to ensure that the Services are secure, we do not guarantee they will be free of any harmful code, virus or other malware.  It is your responsibility to ensure that your computer, phone, Internet access, device and associated equipment have the appropriate technical requirements to enable you to use and access the Services.  We take no responsibility for problems associated with or arising from your inability to access or use the Services due to your equipment or Internet supply not being appropriate.
   2. NO WARRANTIES.  TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, THE SERVICES ARE PROVIDED “AS-IS” AND AS AVAILABLE, WITH NO WARRANTY OF ANY KIND, AND COS, ON BEHALF OF ITSELF AND ITS AFFILIATES AND LICENSORS, EXPRESSLY DISCLAIMS ANY WARRANTY AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, OR NON-INFRINGEMENT AND COS AND ITS AFFILIATES AND LICENSORS DO NOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICES NOR ITS COMPLETENESS OR ACCURACY.
   3. NO CONSEQUENTIAL DAMAGES.  COS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING.
   4. LIMITATION OF DAMAGES.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF COS ARISING FROM, RELATING TO, OR IN CONNECTION WITH THESE TERMS OF USE OR THE SERVICES EXCEED THE GREATER OF: (I) AMOUNTS THAT YOU PAID COS FOR YOUR USE OF THE SERVICES; OR (II) $50.
   5. STATE LAW EXCEPTIONS.  CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.  UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
   6. Indemnity.  You  agree to defend, indemnify and hold harmless COS, its affiliates, and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these Terms or your use of the Services.
   7. Non-U.S. Access or Use.  The Services are intended for use only by persons located in the United States.  COS makes no claims that the Services or any of their content is accessible or appropriate outside of the United States.  Access to the Services may not be legal by certain persons or in certain countries.  If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

7. General. 

   1. Choice of Law; Jurisdiction.  These Terms and any dispute or claim arising out of, or related to, them, their subject matter or their formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any conflict of law principles thereof. In the event of any controversy or dispute between you and us arising out of or in connection with the Services, the parties shall attempt, promptly and in good faith, to resolve any such dispute.  If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may file a legal action or proceeding with respect to such controversy or dispute and You and COS agree to submit to the exclusive personal jurisdiction of, and agree that venue is proper in, the state and federal courts located in Colorado or such other jurisdiction as COS may select in any such legal action or proceeding. Notwithstanding the foregoing, COS may seek injunctive or other equitable relief to protect its Intellectual Property Rights in any court of competent jurisdiction. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.  This Agreement specifically excludes the United Nations Convention on Contracts for the International Sale of Goods and any legislation implementing such Convention, if otherwise applicable. 
   2. Waiver. Any waiver by COS of any term or condition of these Terms must be in writing. No waiver of any provision of these Terms by COS shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of COS to assert a right or provision under these Terms does not constitute a waiver of such right or provision.   
   3. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent and that the remaining provisions of these Terms will continue in full force and effect.
   4. Entire Agreement.  These Terms, including the Privacy Policy and AUP (which are incorporated herein by this reference), constitutes the sole and entire agreement between you and COS with respect to the Services and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral.
   5. Export Restrictions.  You agree to comply with all applicable international and U.S. laws that may apply to the Services, including, without limitation, the U.S. Export Administration Regulations, and any end-user, end-use and destination restrictions that have been or may be issued by the United States and other countries or jurisdictions.