Terms of service

BEFORE USING COSMIAN’S SERVICES (AS DEFINED BELOW), PLEASE READ THESE TERMS OF SERVICE. THESE TERMS OF SERVICE GOVERN SUBSCRIPTION TO AND USE OF COSMIAN’S SERVICES. IF YOU REGISTER FOR A FREE VERSION OF COSMIAN’S SERVICES, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE VERSION. BY ACCESSING OR USING COSMIAN’S WEBSITES AND SERVICES, YOU ACCEPT OR AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO OR ACCEPTING THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE, THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE COSMIAN’S SERVICES.

1. AGREEMENT

These Terms of Service (these “Terms”) are made by and between the party on whose behalf they are accepted (“Subscriber“) and Cosmian and are effective as of the date they are accepted by Subscriber (the “Effective Date”). These Terms determine the  terms and conditions under which the Subscriber is granted a limited subscription to use Cosmian’s services as described in Section 2 below (the “Services”).

1. SERVICES

2.1 Description of the Services

Services refer to the limited subscription to use Cosmian Secure Computation, which is a managed trusted execution environment described in the documentation available at https://cosmian.com/doc/.

2.2 Free Services

2.2.1 Cosmian may offer free or trial versions of the Services (“Free Services”) from time to time. Additional terms and conditions may appear on the registration website for a Free Service and any such additional terms and conditions are incorporated into these Terms by reference and are legally binding.

2.2.2 ALL FREE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. FREE SERVICES MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). COSMIAN DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT (INCLUDING LIABILITY OTHERWISE PROVIDED FOR UNDER SECTION 10 (LIMITATION OF LIABILITY)) FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A FREE SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO A FREE SERVICE, AND ANY CUSTOMIZATIONS MADE TO A FREE SERVICE BY OR FOR SUBSCRIBERS, MAY BE PERMANENTLY LOST IF THE FREE SERVICE IS SUSPENDED, TERMINATED, OR DISCONTINUED.

2.2.3. If Subscriber registers at Cosmian’s websites for Free Services, Cosmian will make such Free Services available to Subscriber free of charge for a duration of six (6) months from registration (the “Initial Free Services Period”). Such Initial Free Services Period may be renewed by Cosmian at its sole discretion for additional periods of six (6) months each (the “Additional Free Services Period”). In any event, the Initial Free Services Period and the Additional Free Services Period shall cease at the earliest of (a) the start date of any paid subscription for a paid version of such Services, if applicable, or (b) termination of the Free Services by Cosmian at its sole discretion.

2.2.4. Subscriber may change its subscription from Free Services to paid Services (ie. a subscription you have to pay for) (“Paid Services”) or change one type of Paid Services to another type of Paid Services with more resources (“Upgrade”) at any time. Your subscription to Paid Services starts on the date of your order of such Paid Services and for the term specified in the order form of such Paid Services.

1. COSMIAN’S OBLIGATIONS

3.1 Personnel and Performance

Cosmian will be responsible for the performance of its personnel (including employees and contractors) and their compliance with the Terms.

3.2 Documentation

Cosmian will make online documentation available at https://cosmian.com/doc/ (the “Documentation”) that describes: (a) Cosmian software made accessible as part of the Services (“Cosmian Software”) and (b) usage guides for the Services.

1. SUBSCRIBER’S OBLIGATIONS

4.1 Subscriber Data

“Subscriber Data” means the content uploaded by Subscriber or available on the Services, including any data, personal identifiable information (“Personal Data”) such as Subscriber’s account data. As between Cosmian and Subscriber, Subscriber is responsible for Subscriber Data and the provision of Subscriber Data in the course of performance of the Services according to the Terms.

4.2 Personnel and Performance

Subscriber will be responsible for the performance of its personnel (including employees and contractors) in compliance with the Terms.

4.3 Responsibilities

Subscriber (a) shall comply with the Cosmian Acceptable Use Policy available at https://cosmian.com/policies/acceptable-use (the “AUP”); (b) shall use the Services in accordance with the Terms; (c) shall use the Services in accordance with the applicable Documentation; (d) shall be responsible for using commercially reasonable efforts to prevent unauthorized access to or use of the Services; (e) shall promptly notify Cosmian of any unauthorized access or use of the Services; (g) shall not use the Services to store, transmit or display Subscriber Data for fraudulent purposes or in violation of applicable laws and governmental regulations; (h) shall not make the Services available to, or use the Services for the benefit of, anyone other than Subscriber’s own personnel or end users; (i) shall not use the Services to store, transmit or display Malicious Code; (j) shall not interfere with or disrupt the integrity or performance of the Services or any third-party technology contained therein; (k) shall not attempt to gain unauthorized access to any of Cosmian’s datacenters, systems or networks; (l) shall not permit direct or indirect access to or use the Services in a way that circumvents a usage or capacity limit of the Services or use the Services to access or use any of Cosmian’s intellectual property except as permitted under the Terms; (m) shall not sell, resell, license, sublicense, distribute, redistribute, rent, or lease the Services except as integrated with its own offerings that provide additional functionality to its end users; (n) subject to Section 9.1 (Cosmian Software), shall not copy, modify or create a derivative work of the Services or any part, feature, function, or user interface thereof; (o) shall not access the Services or use the Documentation to develop a competitive product or service; (p) subject to Section 9.1 (Cosmian Software), except as permitted by applicable laws or governmental regulations, shall not reverse engineer, decompile, translate, disassemble or otherwise attempt to extract any or all of the source code of the Services; (q) shall not alter, remove or obscure any copyright, trademark or other proprietary notices or confidentiality legend on the Services; (r) shall obtain and maintain appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems and internet access; (s) obtain and maintain any required consents necessary to permit the processing of Subscriber Data by Cosmian under the Terms; and (t) obtain and maintain any consents necessary to permit the processing by Cosmian of the personal information of Subscriber’s personnel that serve as Subscriber’s designated contact for purposes of the Services and the Terms.

4.4 Service Notices

If Cosmian becomes aware that Subscriber may violate Subscriber’s obligations under this Section 4 (Subscriber’s Obligations), Cosmian will notify the Abuse Contact by email (the “Service Notice”) and request Subscriber to take reasonably appropriate action, including ceasing problematic usage, changing a configuration, updating account credentials or removing applicable Subscriber Data. If Subscriber fails to comply with a Service Notice within the period set forth in the Service Notice, Cosmian may block Subscriber’s access to the Services until the requested action is taken. If Subscriber fails to take the required action within ten (10) days or fails to comply with Subscriber’s obligations under this Section 4 (Subscriber’s Obligations) on two or more occasions during any rolling twelve (12) month period, Cosmian may terminate the Terms immediately for cause. All limitations of access, suspensions, and terminations for cause shall be made in Cosmian’s sole discretion and Cosmian shall not be liable to Subscriber or any third party for any termination of Subscriber’s account or access to the Services.

4.5 Subscriber’s Account

To access some resources on the  Services, Subscriber may be asked to provide certain registration details to create and maintain an account. Subscriber confirms that it: (1) will only submit information that is correct, current, and complete and will keep it up to date; and (2) will comply with these Terms.

Subscriber is responsible for keeping its account and password confidential and for all activity that occurs on its account. Subscriber agrees to notify Cosmian immediately of any unauthorized access or use of its account or password. Cosmian will not be liable for any loss incurred by Subscriber as a result of someone else using Subscriber’s account and password with or without Subscriber’s permission.

1. TERM AND TERMINATION

5.1 Term of the Agreement

The Agreement commences on the Effective Date, as such term is defined in the first paragraph of these Terms and continues until all the Services end, or this Agreement is terminated in accordance with the terms below.

5.2. Termination for Cause

In addition to Cosmian’s right to terminate the Agreement under Section 4.4 (Service Notices), Subscriber or Cosmian may terminate the Agreement ipso jure for cause (a) upon 30 days written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period or (b) immediately upon notification, to the full extent permitted by law, if the other party (i) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors to the extent permitted by applicable laws or governmental regulations, (ii) goes out of business or (iii) ceases its operations.

1. FEES AND PAYMENT

6.1 Fees

Subscriber will provide accurate and updated billing contact information. All fees payable under the Terms shall be made in Euros. Subscriber’s payments of fees are neither (i) contingent on the delivery of any future functionality or features nor (ii) dependent on statements not set forth in the Terms. Payment obligations are non-cancellable and, except as expressly stated in the Terms, fees paid are non-refundable. For clarity, in the event that the Subscriber downgrades any subscriptions from a paid subscription to a free subscription, the Subscriber will remain responsible for any unpaid fees under the paid subscription, and Services under the paid subscription will be deemed fully performed and delivered upon expiration of the term of the initial paid subscription.

6.2 Suspension of Service and Acceleration

If any amount owing by Subscriber is 30 or more days overdue (or 15 or more days overdue in the case of invoices to be paid by credit card), Cosmian may, without limiting any rights and remedies, accelerate Subscriber’s unpaid fee obligations to become immediately due and payable, and block the provision of Services to Subscriber until the overdue amounts are paid in full. Cosmian will give Subscriber at least 10 days prior notice that its account is overdue, before blocking Services to Subscriber.

6.3 Payment Disputes

Cosmian will not exercise any rights to block Services, accelerate payments, impose late charges or change payment terms with respect to an overdue amount for so long as Subscriber is disputing the overdue amount in good faith. The parties shall cooperate diligently to resolve the dispute.

6.4 Taxes

Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Cosmian’s income. If Cosmian has the legal obligation to pay or collect taxes for which Subscriber is responsible, the appropriate amount shall be invoiced to and paid by Subscriber unless Subscriber provides Cosmian with a valid tax exemption certificate authorized by the appropriate taxing authority.

1. PERSONAL DATA

1. 7.1.Definitions

The following clause 7 governs how Cosmian collects and uses Personal Data relating to the use of Cosmian’s Services and the management of the commercial relationship. Depending upon the processing at stake for the provision of the Services, Cosmian is either Data Controller or Data Processor of Personal Data.

For the purposes of this clause 7, “GDPR” refers to the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals regarding the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) and the terms used with capital letters, whether in plural or singular the terms “Data Controller”, “Data Processor”, “Personal Data” and “Data Subject” have the meaning given to them in the GDPR.

1. 7.2.Situations where Cosmian is a separate Data Controller

Cosmian acts as Data Controller in relation with the processing of Personal Data for the purposes of managing the commercial relationship (in particular but without limitation invoicing).

Some contact details of employees and representatives of Subscriber may be necessary for this purpose and to allow Cosmian to fulfil its obligations under the Terms. If the Subscriber does not provide Cosmian with this Personal Data, Cosmian cannot meet its obligations pursuant to the Terms. This Personal Data may be transferred to Data Processor(s). Furthermore, personal data is stored and processed within the European Union. The processing operations do not involve transfers of data outside the European Economic Area (EEA). However, should this happen, we will put in place contractual mechanisms and binding legal processes to legally transfer personal data outside the EEA such as the implementation of appropriate safeguards as provided for by the GDPR (e.g., BCRs for processors, standard contractual clauses adopted by the European Commission, approved codes of conduct or certification schemes). This Personal Data will be kept for the full duration of the performance of the Terms and shall be archived for the purposes of justification or proof. In accordance with applicable data protection legislation, the Data Subject has the right to access, rectification, deletion, limitation, opposition and portability of their Personal Data, as well as the right to make a complaint to a competent supervisory body. The Data Subjects may exercise their rights by writing to the following address: [email protected]. Insofar as Cosmian is not in direct relationship with the Data Subject whose Personal Data was collected, the Subscriber undertakes to provide its staff concerned with processing operations with all the information relating to the processing of their Personal Data for the purpose stated above.

1. 7.3.Situations where Cosmian is a Data Processor

Cosmian acts as Data Processor in relation with processing of Subscriber’s Personal Data for the management/creations of accounts for Subscribers to access the Services.

With respect to the above processing Subscriber, as Data Controller, has sole authority in determining the purposes and the conditions of processing Personal Data as well imposing general and specific instructions to Cosmian, the Data Processor.

1. Roles and responsibilities of Cosmian as Data Processor

A description of the nature and purposes of the processing, types of Personal Data, categories of Data Subjects and the duration of the processing are provided below:

1. Data Subject and Personal Data categories subject to processing

The Personal Data that shall be processed include the Subscriber’s users of the services.

The Personal Data subject to processing by Cosmian are the following:

• contact details including name, email in relation with employees or representatives of Subscriber;
• login and account information, including screen name, password and unique user ID;
• traffic data, including cookies (beacons, pixels, tags), IP addresses, referrer headers, data identifying the web browser and version, and device information (to the extent considered by applicable law to be personal data).

1. Purposes of processing

The processing of Personal Data is necessary to allow Cosmian to provide the Services. Cosmian processes, in particular, Personal Data on behalf of the Subscriber with the purposes of providing access to the Services to Subscriber.

1. Type(s) of Personal Data subject to processing

The Personal Data subject to processing by Cosmian are the following :

• contact details including name, email in relation with employees or representatives of Subscriber;
• login and account information, including screen name, password and unique user ID;
• traffic data, including cookies (beacons, pixels, tags), IP addresses, referrer headers, data identifying the web browser and version, and device information (to the extent considered by applicable law to be personal data).

1. Duration of the Processing

Subscriber’s Personal Data will be stored for the duration of the contractual relationship between the Subscriber and Cosmian. The Subscriber may terminate this relationship at any time by requesting unsubscription. In case of unsubscription, all Personal Data of the Subscriber will be immediately deleted.

1. General Obligations of Data Controller

As Data Controller and to the extent that Personal Data is Processed, Subscriber remains responsible for the lawfulness of the processing entrusted to Cosmian, particularly with regard to the principles and duties set out in the GDPR concerning, in particular, the legal basis of the processing and the information of the Data Subjects.

The Subscriber undertakes to process the Personal Data in compliance with the GDPR. In the event of Cosmian’s supervision by a supervisory authority concerning all or part of the processing entrusted by the Subscriber, the latter undertakes to actively cooperate with Cosmian and, if necessary any supervisory authority, including providing them with all the documents or information useful to them.

1. General Obligations of Cosmian as Data Processor

1. Personal Data processing by Cosmian

Cosmian shall process the Personal Data in accordance with the Subscriber’s lawful and documented instructions, and only for the purposes described in section 7.2.1, ii., with the exception of the instructions that Cosmian believes to be in breach of the GDPR or contrary to the applicable law relating to Personal Data protection, in which case Cosmian would inform Subscriber of it in writing immediately. If Cosmian is required to process the Personal Data outside of Subscriber’s documented instructions pursuant to the applicable law, Cosmian shall inform the Subscriber of this legal obligation before processing, unless the law concerned forbids such information for reasons of public interest. 

Cosmian must ensure that any member of staff authorised to process Personal Data is subject to a duty of confidentiality.

1. Data security

Cosmian ensures the security of Personal Data by taking all physical, technical and organizational measures to guarantee the confidentiality, integrity and availability of Personal Data, including encryption and anonymisation. We also require all of our employees and partners at Cosmian to adhere to strict standards of Personal Data security.

1. Personal Data Breach

Cosmian shall notify the Subscriber without undue delay upon Cosmian becoming aware of any destruction, loss or alteration, non-authorised disclosure and non-authorised access (a “Personal Data Breach”) affecting the Personal Data, providing Subscriber with information (as and when available) to assist the Subscriber to meet any obligations to report or inform Data Subjects of the Personal Data Breach.

Where Cosmian becomes aware of a Personal Data Breach, it shall, without undue delay, also provide the Subscriber with: (i) description of the nature of the Personal Data Breach, including the categories and approximate number of both Data Subjects and Personal Data concerned; (ii) the likely consequences; and (iii) description of the measures taken, or proposed to be taken, including measures to mitigate its possible adverse effects.

Cosmian shall, at the Subscriber’s cost, co-operate with the Subscriber and take such reasonable commercial steps as are reasonably instructed by the Subscriber to assist in the investigation and mitigation of each such Personal Data Breach.

1. Rights of Data Subjects

Cosmian shall provide all reasonable assistance to the Subscriber, insofar as possible, in order to allow it to respond to the requests of Data Subjects who wish to exercise their rights under the GDPR. If such a request is made directly to Cosmian, Cosmian will forward this request to the Subscriber as soon as possible without responding to it.

1. Record(s) of processing activities

Cosmian regularly updates any records of data including Personal Data that is processed by Cosmian.

1. Audit

The Subscriber will have the possibility to audit or have audited the internal Personal Data protection systems put in place by Cosmian not more than once a year in order to check Cosmian’s compliance. The Subscriber shall inform Cosmian of the audit with a minimum of one (1) month notice. Cosmian reserves the right to refuse the identity of the auditor retained by the Subscriber if it belongs to a company competing with Cosmian. The audit should be carried out during Cosmian’s opening hours and in such a way that it interrupts Cosmian’s activity as little as possible. The audit shall not affect in any way whatsoever (i) the technical and organisational security measures used by Cosmian, (ii) the security and confidentiality of the data of Cosmian’s other Subscribers, or (iii) Cosmian’s proper functioning and production organisation. Insofar as possible, Cosmian and the Subscriber will agree in advance on the scope of the audit. The audit will be carried out at the cost of the Subscriber. The audit report will be sent to Cosmian in order to allow Cosmian to make any potential comments and observations in writing, which will be attached to the final version of the audit report.

1. Return or suppression of Personal Data

Upon expiry or termination of the Terms, Cosmian will delete the Personal Data (including copies) in its possession.

1. CONFIDENTIALITY

1. 8.1.Confidential Information

“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be confidential. Subscriber’s Confidential Information includes the Subscriber Data; Cosmian’s Confidential Information includes the Services; and Confidential Information of each party includes but is not limited to the Terms and all Service orders, including pricing, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by each party in connection with the Agreement. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Receiving Party; (b) was known to the Receiving Party with no obligation of confidentiality prior to disclosure by Disclosing Party, as proven by records of Receiving Party; (c) is disclosed to Receiving Party by a third party who did not directly or indirectly obtain the information subject to any confidentiality obligation; or (d) is at any time independently developed by Receiving Party without the use of Disclosing Party’s Confidential Information as proven by records of Receiving Party.

1. 8.2.Protection of Confidential Information

Except as provided in Section 7.3 (Compelled Disclosure) Receiving Party shall not disclose or otherwise make available any Confidential Information of Disclosing Party to anyone except those of its employees, directors, attorneys, agents, and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each party shall (x) safeguard all Confidential Information of the other party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information and (y) not use any Confidential Information of the other party for any purpose outside the scope of the Agreement.

1. 8.3.Compelled Disclosure

If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, then to the extent legally permitted, Receiving Party shall provide Disclosing Party with prior notice of the compelled disclosure and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the compelled disclosure. Any compelled disclosure shall be limited to the extent required and shall be subject to confidentiality protections to the extent practicable. If Receiving Party is compelled by law to disclose Disclosing Party’s Confidential Information as part of a civil proceeding to which Disclosing Party is a party, and Disclosing Party is not contesting the disclosure, Disclosing Party will reimburse Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

1. LICENSES AND PROPRIETARY RIGHTS

1. 9.1.Cosmian Software

Except solely with respect to open source software Cosmian makes available (“Open Source Software”), including language-specific codes that enable easy communication with Cosmian Software (the “API Clients”), Cosmian grants Subscriber a limited non-exclusive, non-transferable, non-sublicensable license to use Cosmian Software solely in connection with the subscribed Services in accordance with the Agreement. Open Source Software, including API Clients, and Subscriber’s use of such Open Source Software is subject to and governed by the applicable license accompanying, linked to, or embedded in such Open Source Software (each an “Open Source License”) and Cosmian grants Subscriber a license to use the Open Source Software to the full extent permitted by the applicable Open Source License.

1. 9.2.Feedback

Subscriber grants to Cosmian worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Subscriber.

1. 9.3.Support Related Deliverables

Cosmian hereby grants Subscriber a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Cosmian for Subscriber and delivered by Cosmian to Subscriber in connection with support services (“Deliverables”). Subject to Subscriber’s ownership of its proprietary and Confidential Information disclosed to Cosmian under Section 8 (Confidentiality), Cosmian shall retain all ownership rights to the Deliverables. Deliverables that are custom code written by Cosmian to facilitate Subscriber’s use of the Services that include any Subscriber Confidential Information shall remain subject to the confidentiality obligations under Section 8 (Confidentiality) and Subscriber shall retain all ownership rights to its Confidential Information. ALL SUCH CUSTOM CODE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. COSMIAN DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE TERMS FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE CUSTOM CODE.

1. 9.4.Proprietary Rights

The Services, Cosmian Software, and the Documentation are the proprietary information of Cosmian. Subject to the limited rights expressly granted in the Terms, Cosmian and Cosmian’s licensors reserve all rights, titles, and interests in and to the Services, Cosmian Software, and the Documentation, including all related intellectual property rights. No rights are granted to Subscriber except as expressly set forth in the Terms. No rights are granted to Cosmian except as expressly set forth in the Terms.

1. 9.5.Restrictions

Subscriber shall not, and shall not allow third parties to: (i) license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way provided however that the Subscriber may permit use of Services, strictly in accordance with these Terms, by third parties working on behalf of the Subscriber; (ii) access (or attempt to access) any of the Services by any means (including automated means) other than through the account that is provided by Cosmian; (iii) reverse engineer, adapt, translate, decompile, or otherwise derive the source code for the Services; or access the Services in order to copy or imitate any ideas or features; or build a product or service similar to the Services; or use similar features, software, functions or graphics as those of the Services, whether or not intended to compete with the Services; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate content of any databases and/or the normal operation of any computer systems or material in violation of third-party privacy and property rights, or (v) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose.

1. LIMITATION OF LIABILITY

IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY (TOGETHER WITH ALL OF ITS AFFILIATES) ARISING OUT OF OR RELATED TO THE AGREEMENT (REGARDLESS OF THE NUMBER OF INDIVIDUAL INCIDENTS GIVING RISE TO LIABILITY) EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY THE SUBSCRIBER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT THE SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT).

1. INDEMNIFICATION

Subscriber agrees to indemnify and hold Cosmian harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with claims and actions made or brought against Cosmian by a third party arising from or relating to Subscriber’s use of the Services in violation of these Terms.

1. GENERAL PROVISIONS

• Publicity

Subscriber consents to Cosmian’s use of Subscriber’s name and logo and general description of Subscriber’s relationship with Cosmian in press releases and other marketing materials and appearances. Subscriber further permits Cosmian to use it as a reference account for marketing purposes and agrees, from time to time, to support Cosmian by participating in reference phone calls and other marketing events including with press, analysts, and Cosmian’s existing or potential investors or Subscribers upon reasonable request by Cosmian.

1. 12.2.Force Majeure

Except for payment obligations under the Agreement, neither party will be liable for failure to perform or inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control, including, for example, an act of God, natural disaster, act of war or terrorism, riot or civil unrest, labor conditions, governmental action, disruption of telecommunications, failure or delay of internet services providers or internet disturbance, disruption of power or other essential services.

1. 12.3.Assignment

Neither party shall assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of the other party. However, Cosmian may freely assign its rights under the Terms in case of a corporate reorganization, merger or acquisition. The Terms will bind and inure to the benefit of each party’s successors and permitted assigns.

1. 12.4.Relationship

The Parties are independent contractors. This Agreement does not create a joint venture, partnership, employment, franchise, or agency relationship exists between Subscriber and Cosmian.

1. 12.5.Waiver and Severability

The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. If any provision of is Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

1. 12.6.Surviving Provisions

The sections titled “Term and Termination,” “Fees and Payment” “Personal Data,” “Confidentiality,” “Licenses and Proprietary Rights,” “Limitation of Liability,” “Indemnification,” and “General Provisions” and any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any termination or expiration of this Agreement.

12.7. Notifications

All  notifications made under this Agreement shall be made by registered letter with acknowdgment of receipt except if provided otherwise.

12.8.  Governing Law

This Agreement shall be construed in accordance with and governed by the laws of France and subject to the exclusive jurisdiction of the Commercial Court of Paris.

Acceptable Use Policy

1. Introduction

The Acceptable Use Policy (“AUP”) described in Section II (the “AUP”) specifies guidelines to any party using any of Cosmian’s Services. By using Cosmian’s services, you agree to the latest version of the AUP. Cosmian may modify the AUP at any time by posting a revised version on the Website and providing notice on the Website that the AUP has been updated.

Anyone may report a violation of the AUP by following the instructions in Section III.

If you violate the AUP or authorize or help others to do so, we may suspend or terminate your use of the Cosmian services or the Website.

1. Acceptable Use Policy

Prohibited Activities. Services may not be used for any purpose that, in Cosmians’s sole discretion, is illegal, inappropriate and/or improper (“Prohibited Activities”). The following examples and descriptions of Prohibited Activities provided below are not exhaustive.

• Illegal Purposes. Illegal purposes include, but are not limited to:

• using the Services to violate any law, rule, regulation, governmental orders, industry standards or guidance in any applicable jurisdiction; or
• engaging in threatening, abusive, harassing, defamatory, libelous, deceptive or fraudulent behavior.

• Inappropriate and/or Improper Purposes. Inappropriate and/or improper uses include, but are not limited to using the Services:

• for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way, including by exposing them to inappropriate content;
• to store, publish, display, or transmit defamatory, infringing, libelous, harassing, abusive, threatening or otherwise unlawful or tortious material;
• to store, publish, display or transmit material in violation of third-party privacy rights;
• to send unsolicited messages or postings, including bulk commercial advertising or informational announcements and “spam”;
• to compromise or attempt to compromise the security of any Cosmian or third party network, system, server, or account;
• to impersonate or attempt to impersonate Cosmian, Cosmian personnel, another subscriber or user, or any other person or entity; or
• in any way that restricts or inhibits anyone’s use or enjoyment of Cosmian’s services or which, as determined by Cosmian, may harm Cosmian or users of Cosmian’s services or expose them to liability.

No Activities Harming the Network or Services. Users may not engage, directly or indirectly, in any activities that, in Cosmian’s sole discretion, harm or interfere with: (i) Cosmian’s network, (ii) the integrity or efficacy of the Services, or (iii) the use of the network and the Services by Cosmians’s other Subscribers. The foregoing also includes attempts to bypass or exploit Service limitations or restrictions.

Remedies. Cosmian reserves the right to take any and all actions, in response to violations of this AUP or as otherwise required to preserve the integrity of Cosmian’s network and its Services, including, without limitation:

1. suspension or termination of the Services, including charging Subscriber any applicable rates and cancellation or termination fees;
2. cooperation with law enforcement;
3. providing requested information to third parties who have informed Cosmian that they have been harmed by a Subscriber’s failure to abide by this AUP, and
4. prosecution of violations of this AUP. 

Cosmian’s failure to take action shall not be deemed a waiver of this right.