Effective Date: July 1, 2023
These Enterprise Membership Agreement Terms and Conditions (these “Terms”) are attached to and incorporated by reference into the Enterprise Membership Agreement between COS and CLIENT (the “Agreement”).
These Terms are subject to and incorporate by reference COS’s Terms of Use, Privacy Policy, and any other applicable COS polices, notices, terms, guidelines, or codes of conduct made available to CLIENT (“Additional Terms”). In the event of a conflict between these Terms and any Additional Terms, the order of precedence will be as follows: (i) Additional Terms governing use of Personal Data or Personal Information, as such are defined in the applicable Additional Terms; (ii) these Terms; (iii) any applicable Additional Terms other than those identified in (i) above.
Capitalized terms used but not defined within these Terms shall have the meaning ascribed to them in the Agreement.
1. DEFINITIONS.
- “Client Admin(s)” means those CLIENT employees authorized by CLIENT to access the Services for the purpose of managing the Agreement, Orders and Client Member’s Membership or other use of Services.
- “Client Member(s)” means those specific CLIENT employees or contractors identified by CLIENT to COS for the purpose of such individuals gaining Membership and accessing the Services; provided that such individuals have, in COS’s sole reasonable discretion, met the COS qualifications for Membership in the applicable Membership Program.
- “COS Materials” means any documents or other materials, and any data or other information, in any form or media, provided or made available to the Client Admin(s) and/or Client Members in connection with or relating to Membership or the Services or prepared by or on behalf of COS in the course of performing any Services.
- “Data Protection Laws” means all worldwide data protection and privacy laws and regulations applicable to the Personal Data in question, including, where applicable: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”); (ii) GDPR as it forms parts of the United Kingdom domestic law by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”); (iii) the California Consumer Privacy Act of 2018, California Civil Code 1798.100 et seq. (2018), as amended (“CCPA”); and (iv) any other similar data protection laws in any other applicable territory, each as amendment, replaced, supplemented or superseded.
- “Membership” means the status of an individual recognized as a Member as such term is defined in the COS TOUs of the specific Membership Program identified in and Order as, or as part of, the Services.
- “Personal Data” means any information, in any form or format, that based on the circumstances is subject to protections, obligations and/or restrictions of Data Protection Laws(s). Without limiting the breath of the foregoing and only for the sake of clarification; Personal Data includes such information and/or data defined under applicable Data Protection Laws as “personal information,” “personal data,” “covered data” or similar and generally includes information that identifies, is linked to and/or is reasonably linkable to an individual or a consumer device. Personal Data of individuals acting in a commercial or employment context, hereinafter, “Professional Personal Data.”
2. MEMBERSHIP & SERVICES.
COS will extend Membership to and make the Services and COS Materials available to Client Admins and Client Members as set forth in the applicable Order. Notwithstanding anything to the contrary set forth in an Order, COS reserves the right to modify or withdraw Membership benefits in its sole discretion. COS may use the services of third-party trainers, facilitators and other subcontractors and permit them to provide any or all of the Services; provided, that COS shall remain responsible for its obligations hereunder.
3. LICENSE & RESTRICTIONS.
- License. Subject to the terms of the Agreement, COS grants to Client Members a worldwide, limited, non-exclusive, non-sublicensable, non-transferable right to use the Services and COS Materials as would reasonably be expected for such Client Members to obtain the intended benefits of Membership. Membership and access to Services for any particular Client Member shall cease upon conclusion of the Membership and/or Order Term; use of COS Materials made available in connection with Membership or other Services may be used by Client Members indefinitely, but at all times subject to the license limitations set forth herein.
- Restrictions. Use of the Services and COS Materials is subject to compliance with the Agreement and these Terms. CLIENT agrees that COS may revoke the Membership of any Client Member or otherwise bar any Client Member or Client Admin from accessing Services and/or COS Materials in the event of non-compliance. CLIENT shall not and shall ensure that Client Admins and Client Members do not:
- Copy, distribute, create derivative works, or remove any proprietary notices or labels from the Services or COS Materials;
- Hack, modify, reverse engineer or interfere with the proper working of the Services, COS Materials, or any third-party system made available through the Services;
- Use the Services in order to build a competitive product to the Services or otherwise monetize the Services or COS Materials;
- Share Membership credentials or login access to the Services among multiple individuals or permit any party other than the Client Admins and Client Members to use the Services or access COS Materials;
- Use the Services or any COS Materials in any manner that is unlawful or that infringes the rights of COS or others;
- Use the Services or COS Materials for any purpose other than to facilitate the development of individual Client Member’s professional skills, knowledge, and capabilities; or
- Share, distribute, or communicate any confidential information obtained through their participation in any COS membership group or program, including, without limitation, confidential information of, or shared by, any other COS member, COS program participant, or COS Staff.
4. CHANGES TO THE SERVICES.
COS reserves the right to update and make other changes to the Membership Programs and/or COS Materials; provided such changes do not, in COS’s sole reasonable discretion, materially diminish the reasonably expected benefit of participation in the applicable Membership Program without prior notice to CLIENT.
5. THIRD PARTY TOOLS.
CLIENT acknowledges and agrees that: (i) Client Admins and Client Members may choose to utilize certain third-party videoconferencing, communications tools, and other services not controlled by COS in connection with the Services, e.g., Slack or Zoom (“Third-Party Tools”); (ii) use of Third-Party Tools is subject to the terms and conditions of the Third-Party Tool providers; and (iii) COS is not responsible for the operation of or any changes to the Third-Party Tools or the acts or omissions of Third-Party Tool providers. CLIENT, Client Admins and Client Members shall be solely responsible for ensuring they have the necessary equipment and services (e.g., internet connectivity) to access the Services including, without limitation, the website(s), web portal(s), or other web interfaces through which the applicable Membership Program is made accessible.
6. SERVICES FEES & PAYMENT.
Services Fees will be as specified in an Order and are due and payable as specified in the applicable Order. Except as otherwise specified in a specific Order: (i) Services Fees are based on access rights acquired and not actual usage; (ii) access rights do not rollover past the Order Term; and (iii) payment obligations are non-cancelable and non-refundable. If any payment due to be made by CLIENT is delinquent or is declined, rejected or otherwise made invalid for any reason, COS shall have the right to charge an additional 5% of the amount payable, per instance. COS shall also have the right to suspend Membership and access to Services during any period of payment delinquency. CLIENT shall be responsible for all of COS’s costs of collection of any unpaid Services Fees due or payable pursuant to this Agreement, including without limitation any fees payable to any collection agency, applicable filing fees and other court costs and reasonable attorney’s fees, and other associated costs and expenses.
7. INTELLECTUAL PROPERTY.
Services and COS Materials and all patent rights, copyright, derivative rights, trade secrets, and trademarks or other proprietary rights in and to the foregoing (collectively, “COS IP”) are the property of COS (or its licensor(s), if applicable). COS (and any relevant third-party licensors of COS) shall retain all of its respective rights in and to any of its COS IP, subject to the limited license granted herein. From time to time, a Client Admin or Client Member may provide COS feedback, analysis, suggestions, and comments related to the Membership Program, the Services and/or any COS Materials (collectively, “Feedback”). As between COS and CLIENT or the applicable Client Admin or Client Member, as applicable, all right, title and interest in and to any such Feedback shall be owned by COS and COS shall have the right to use, modify, license, sublicense and otherwise exploit all or part of the Feedback or any derivative thereof in any manner or media now known or hereafter devised without any remuneration, compensation or credit to CLIENT or the applicable Client Admin or Client Member.
8. CONFIDENTIAL INFORMATION.
- As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, such as information concerning the other party's business, plans, customers, technology, and products. COS Confidential Information shall include, without limitation, COS Materials. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
- The Receiving Party shall: (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement; and (iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement. Except as required by law, neither party will disclose the terms of this Agreement, including, without limitation, the financial terms of this Agreement, to any third party other than to its attorneys, accountants, and professional advisors with a need to know and who are under a duty of confidentiality at least as protective as those set forth in this Agreement.
- The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law so long as the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
9. DATA PRIVACY & SECURITY.
- In the course of performing the Services, COS may be given access to Client Admin Professional Personal Data (“Admin PPD”). The provision of any such Admin PPD and COS’s use thereof shall be governed by COS’s Professional Personal Data Processing Agreement (“DPA”), which is hereby incorporated by this reference herein. For purposes of the DPA: (a) the applicable data subjects are the Client Admins; (b) the applicable personal data is name and business contact and other applicable Professional Personal Data of the Client Admins; (c) the frequency of transfer is continuous; and (d) the nature and purpose of the processing shall be to provide the and as necessary to perform a business purpose pursuant to applicable Data Protection Laws.
- COS’s processing of Client Member Personal Data provided to COS in connection with such Client Member’s Membership or other authorized use of the Services (“Client Member PD”) shall be subject to COS’s Privacy Policy.
- COS shall implement and maintain appropriate and reasonable technical and organizational measures and other protections to adequately secure Admin PPD and Client Member PD. COS will promptly report to CLIENT and/or relevant Client Admins and/or Client Members, as applicable, any suspected unauthorized access to or breach of Admin PPD or Client Member PD and shall cooperate fully with CLIENT in investigating and remediating any such suspected breach.
10. TERM & TERMINATION.
- Agreement Term. The term of the Agreement shall begin on the Agreement Effective Date and end upon termination as set forth in Section 10.3 below.
- Order Term. The term of each Order shall commence on the Order Effective Data continue for the initial term set forth in the Order (“Initial Order Term”), followed by automatic twelve (12) month renewal terms (each a “Renewal Order Term” and collectively with the Initial Term, the “Order Term”), unless COS or CLIENT provides written notice of intent not to renew at least forty-five (45) days prior to the end of the then-current Order Term. If the Order does not indicate an initial term, the Initial Order Term shall be deemed to be twelve (12) months. The Services Fees applicable to each Renewal Order Term shall be as communicated by COS to CLIENT. In the event that COS fails to communicate the Services Fees applicable to a Renewal Order Term at least sixty (60) days prior to the end of the then current Order Term, the Services Fees shall be the same as the then current Order Term.
- Termination. Either party may terminate the Agreement with written notice to the other party; provided that there is no active Order in effect. Either party may terminate this Agreement or any Order if the other party commits a material breach and said breach has not been cured within thirty (30) days of the date of notice from the non-breaching party.
11. REVOCATION OF MEMBERSHIP.
COS reserves the right to revoke any Client Member’s Membership based upon behavior that COS, in its reasonable judgment, deems to (i) violate applicable laws, rules, or regulations; (ii) be abusive, disruptive, offensive, or illegal; or (iii) violate the rights of, or potentially harms or threatens the safety of COS personal or any participant in the COS community. COS may, in its sole discretion, decline to reimburse the CLIENT for the Service Fee associated with the revocation of the Client Member’s Membership.
12. REPRESENTATIONS & WARRANTIES.
- Mutual Representations & Warranties. Each party represents and warrants to the other that: (a) it is a duly authorized company in good standing and has the right and authority to enter into the Agreement, to grant the rights granted by it hereunder, and to fully perform all of its obligations hereunder; (b) it has not entered into, nor will it enter into, any agreement that would conflict with its obligations hereunder or render it incapable of performing satisfactorily hereunder; (c) it will comply with the requirements and restrictions of the DPA; and (d) COS, in its performance of the Services, and CLIENT, in its use of the Services, will comply with all applicable local, state, federal and international laws, rules and regulations, including, without limitation, those laws related to employment and data privacy.
- COS Representations & Warranties. COS represents and warrants that: (a) it will render the Services in a professional and workmanlike manner in accordance with generally accepted industry standards; (b) CLIENT’s, Client Admins, and Client Members use of the Services and COS Materials in compliance with this Agreement, will not infringe upon any patent, trademark, service mark, copyright, right to publicity, or other intellectual property or proprietary rights of any third party (“3rd Party IP Rights”); (c) to COS’s knowledge, the Services are free of any malicious code, including “viruses” “worms,” and/or trojan horses; and (d) if applicable, it will comply with all CLIENT policies, procedures, and requirements with respect to any onsite visit to any CLIENT’s premises.
- CLIENT Representations & Warranties. CLIENT represents and warrants that: (a) it will ensure that all Client Admins and Client Members comply with the obligations under the Agreement, these Terms and the applicable Order; (b) neither it nor any of its employees or agents (including Client Admins and Client Members) will make use of the Services or COS Materials except as explicitly permitted hereunder; and (c) the provision of CLIENT Confidential Information and Personal Data and COS’s use thereof in compliance with the Agreement will not infringe upon any patent, trademark, service mark, copyright, right to publicity, or other intellectual property, proprietary or privacy rights of any third party.
- DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND COS MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COS, TO THE GREATEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES, WILL MEET CLIENT REQUIREMENTS OR THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE.
14. INDEMNIFICATION.
- Each party (the “Indemnifying Party”) shall indemnify and hold harmless the other party, its parents, subsidiaries and affiliates and each of their respective officers, agents, employees, directors and advisors (the “Indemnified Party(ies)”) from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and litigation expenses) (“Claims”) arising out of or related to any third party claim alleging any breach of such party’s representations and warranties, or other obligations hereunder.
- Upon receiving notice of any claim covered by the above indemnity obligations, the Indemnified Party shall promptly notify the Indemnifying Party in writing of the claim. The Indemnifying Party may assume sole control of the defense of any such claim. The Indemnified Party may, at its own cost and expense, participate through its attorneys or otherwise, in such investigation and defense. The Indemnified Party shall provide the Indemnifying Party reasonable assistance regarding such claim at the Indemnifying Party’s expense. Unless a settlement is solely for monetary damages for which the Indemnified Party is fully indemnified hereunder, the Indemnifying Party shall not settle any claim without the Indemnified Party’s prior, written consent, which shall not be unreasonably withheld or delayed.
- If CLIENT’s, Client Admins’, or Client Members’ use any of the Services or COS Materials become, or, in COS’s opinion, is likely to become, the subject of any claim that such infringe upon any 3rd Party IP Rights, COS, at its own expense, may, in its sole discretion: (i) obtain for CLIENT the right to continue using the applicable Services or COS Materials; or (ii) replace or modify the affected Services or COS Materials so that they become non-infringing while providing substantially equivalent quality. Notwithstanding anything to the contrary set forth in the Agreement, COS will have no liability for claims of infringement of 3rd Party IP rights if the alleged infringement is based on or arises from: (a) the combination or use of the Services or any COS Material not provided or approved for use by COS; (b) the modification of the Services or COS Materials by anyone other than COS, or at COS’s direction; or (c) the use of the Services or COS Materials not in accordance with any provided documentation or the Agreement. The remedies provided in this Section will be CLIENT’s exclusive remedy with respect to claims for infringement.
15. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL: (A) EITHER PARTY BE LIABLE UNDER THE AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT; AND (B) EITHER PARTY’S ENTIRE LIABILITY UNDER THE AGREEMENT EXCEED THE AMOUNT PAID OR PAYBALE BY CLIENT TO COS UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO CLAIMS ARISING OUT OF: (I) A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; (II) BREACHES OF CONFIDENTIALITY; (III) MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY; AND (IV) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS.
16. GENERAL.
- Independent Contractors. Each party shall perform its obligations hereunder as an independent contractor and shall not be deemed an agent, joint venturer or partner of the other. Neither party shall have any right, power, or authority to enter into any agreement or bind or incur any obligation or liability on behalf of the other party.
- Publicity. CLIENT consents to (a) COS’s use of CLIENT’s name and logo identifying CLIENT as a customer of COS; and (b) describing CLIENT’s use of COS’s products and services.
- Non-Solicit. During the term of any Order and for a period of one (1) year following its expiration or termination, CLIENT shall not, directly, or indirectly, hire, solicit, induce, recruit or encourage any of COS’s employees or contractors to terminate their employment or service relationship with COS.
- Force Majeure. COS shall not be liable, nor shall any credit or other remedy be extended, for any failure to fulfill its obligations under the Agreement due to any causes whatsoever beyond a COS’s reasonable control including, but not limited to, acts of God, flood, extreme weather, fire or other natural calamity, terrorism, epidemics or pandemics, action or decree of civil or military authority, power/utility failures, national emergency, riot, war, labor dispute or shortage, material shortage, failure of supplier, embargo and changes in law, policy or inflationary pressure that render performance of Services commercially impracticable.
- Governing Law; Dispute Resolution. This Agreement is governed by the laws of the State of New York without regard to its conflicts of laws rules. COS and CLIENT hereby irrevocably submit to the exclusive jurisdiction and venue of the state and federal courts situated in New York County, New York, for the purposes of any disputes or claims brought by either party regarding or arising from this Agreement. EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY.
- Waiver. Any failure on the part of either party to exercise, or delay in exercising, any right, power, or remedy hereunder shall not operate as a waiver thereof, and any single or partial exercise of any right, power or remedy hereunder shall not preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign its rights under this Agreement or any outstanding Order, in whole or in part, to any third party without the other party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities with written notice.
- Notices. Any notice provided under this Agreement will be in writing and will be effective and deemed delivered three (3) days after posting with the United States Postal Service when mailed by certified mail, return receipt requested, properly addressed and with the correct postage, one (1) day after pick-up by the courier server when sent by overnight courier, properly addressed and prepaid, or on the date of the sender's electronic confirmation or receipt when sent by email transmission.
- Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision, to the extent permissible, shall be modified to reflect the parties’ intention and all remaining provisions shall remain in full force and effect to the greatest extent permitted by law.
- Survival. The parties acknowledge and agree that the covenants, agreements, representations, and warranties which by their nature should survive termination of this Agreement shall survive, in accordance with their terms, the expiration or termination of this Agreement for any reason.
- Entire Agreement; Amendment. This Agreement, together with any Orders, constitutes the entire understanding between the parties with respect to its subject matter and supersedes any prior oral or written agreement or understanding relating hereto. This Agreement may not be amended, modified, or terminated except by a written instrument referencing this Agreement and executed by both parties.
- Counterparts. This Agreement and any Order may be signed by the parties in separate counterparts. Signatures delivered in electronic form shall be binding on the delivering party.