Cobalt Robotics
Customer Terms of Service
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
These Terms of Service (the “Agreement”) are a legally binding contract between Customer (“you”, “your” or “Client”) and Cobalt Robotics, Inc. (“Cobalt”, “we”, “our” or “us”) that governs a customer’s use of the Cobalt products and services. It consists of the following documents, all of which comprise a legally binding contract:
- Master Terms: These contain the legal and commercial terms that apply to your use of Cobalt’s products and services.
- Order Form or Statement of Work (collectively, “SOW”): This contains the details about your purchase and contains legal and commercial terms that apply to your use of Cobalt’s products and services.
- Data Processing Agreement (“DPA”): In addition to the Master Terms, the parties may wish to enter into a DPA, which would have additional terms and conditions governing our use of your data.
We’ve aimed to keep these documents as readable as possible, but in some cases for legal reasons, some of the language is necessarily “legalese.” By using our products or services, you are agreeing to these terms.
We update these terms from time to time. We will send you an email to notify you of material changes if you are a current customer.
Master Terms
Last modified on March 12, 2024
Recitals:
WHEREAS, Cobalt is in the business of providing Security Services (defined below) and Robot Technology (defined below) to provide security and monitoring solutions;
WHEREAS, Client desires to use Security Services and/or Robot Technology and services in certain of its facilities;
NOW, THEREFORE, in consideration of the premises and of the mutual terms and conditions herein, Cobalt and Client agree as follows:
1. Definitions.
1.1 “Hosted Software” means Cobalt’s software-as-a-service system, currently known as “Cobalt Omni,” including firmware and related infrastructure.
1.2 “Security Services” means Cobalt’s Hosted Software and Monitoring Services, and any other services provided by Cobalt as specified on the applicable SOW.
1.3 “Client Security Systems” means Client Systems integrated with Cobalt’s Hosted Software, which can include but is not limited to cameras, video management, camera analytics, access control, and visitor management.
1.4 “Client Security Systems Data” means all data provided by Client to Cobalt by means of the integrated security systems referenced in Section 1.3 herein.
1.5 “Edge Processor” means the Server on Client premises that is hosting the Hosted Software and processing Client Security Systems Data.
1.6 “Command Center” means a central monitoring station where Specialists receive and respond to Events for Client as more fully set forth in Exhibit A.
1.7 “Call List” means the list of names, with corresponding telephone numbers and email addresses, of those persons in the order Client wishes to receive notification of Events via the Hosted Software and Monitoring Services.
1.8 “First Responder(s)” means the entity (e.g. fire department, police department) that is contacted by Command Center to respond to an event received at the Command Center.
1.9 “Charging Station” means the Robot charging stations to be placed on the Premises and connected to Client’s power.
1.10 “Equipment” means Cobalt’s and its third-party suppliers’ equipment, tools and other physical property used in connection with the Robot Technology and/or Security Services, including without limitation the Robots and Charging Stations.
1.11 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
1.12 “Premises” means the Client premises subject to the Robot Technology and/or Security Services, as set forth on SOWs covered by this Agreement.
1.13 “Robot” or “Robot Technology” means an autonomously operated and conveyed Robot provided to Client pursuant to this Agreement.
1.14 “Monitoring Services” means the services that Cobalt performs for Client pursuant to this Agreement by means of the Technology related to (a) Event review and response, (b) monitoring and maintenance of the Hosted Software and/or Robots, and (c) any other custom services as set forth in a SOW or Purchase Order.
1.15 “Subcontractor” means a third party performing a service in connection with the Security Services, Robot Technology, and/or Technology under an agreement with Cobalt.
1.16 “Technology” means the technology used in connection with the Security Services and/or Robot Technology, including without limitation (a) the Hosted Software, Robot, Charging Station, Robot sensors, lenses, screens, speakers, communications devices, chips and boards, power/battery systems, and other physical elements, along with the structure and charging pads of the Charging Stations; (b) any Cobalt-provided software (including without limitation any software-as-a-service), source and object code related to the operation of the Security Services, Robots and Charging Stations, including algorithms, modules, scripts, programs related to their autonomous functioning, reporting and communications; and (c) any other know-how, processes, inventions and proprietary information of or provided by Cobalt or Cobalt’s suppliers.
2. Cobalt Security Services
2.1. Service Specifications. The Security Services will be provided in accordance with this Agreement, including the Technology and Service Specifications set forth in Exhibit A, and any specific requirements listed in a SOW.
2.2. Launch. Each SOW will specify a date for Security Services and/or Robot Technology to begin at each Premises (“Launch”). Client and Cobalt will cooperate on any logistical details regarding the Launch, such as installation and network configuration, notifying Client’s employees, coordinating with existing security, and deciding escalation protocols. The parties will use good faith efforts to Launch on or before the date set forth in the applicable SOW.
2.3. Event Detection. When the Hosted Software and/or a Robot detects a potential security (such as unauthorized persons or open door) (an “Event), it will send a report of the Event to a remote Cobalt employee (a “Specialist”). The Specialist will gather as much information as reasonably necessary to determine the next steps needed to address the Event, which might involve reviewing logs and footage recorded by the Hosted Software or Robot, and remotely operating the Robot to acquire more information. Specialists will respond to Events in accordance with the Specialist SLA set forth in the Service Level Agreement attached hereto as Exhibit B (the “Service Level Agreement” or “SLA”). Specialist assistance will be in the English language only unless otherwise specified in the applicable SOW.
2.4. Specialists. Specialists will be Cobalt personnel trained by Cobalt in the operation of the Robots and handling of Events, and with sufficient knowledge to handle requests for assistance initiated by a user of the Premises via the Robot interface (“Call Request”). Specialist activities will be logged by Cobalt. At Client’s direction and for good cause, Cobalt will remove any Specialist from performance of Services.
2.5. Statements of Work. A “Statement of Work” or “SOW” means a document specifically referencing this Agreement and specifying, without limitation, the scope, objective, and time frame of the Security Services that Cobalt will perform for Client under such SOW. The parties may add additional Robots or Client Premises by mutually executing an amended SOW or new SOW.
2.6. Cobalt Representatives; Subcontractors. To the extent that Cobalt uses Subcontractors under this Agreement or a Statement of Work to provide Robot Technology and/or perform Security Services, it may do so provided that each Subcontractor enters into a written contract with Cobalt containing industry standard data protection and confidentiality terms.
2.7. Background Checks. Subject to any restrictions under applicable law and the availability of records in the applicable jurisdiction(s), Cobalt confirms that it has performed a lawful background check (including criminal convictions) respecting each Specialist, each individual who works onsite at any Premises on behalf of Cobalt and each individual who accesses Client’s network on behalf of Cobalt, and has reasonably determined that each such individual does not pose a risk to the safety and security of the Premises. When visiting any Premises, Cobalt shall comply with Client’s lawful health and safety, security, and code of conduct policies. Client may at any time, in its reasonable discretion, direct Cobalt to remove any individual from the Premises and Cobalt will promptly do so.
3. Other Obligations.
3.1. Network Connectivity. Client will provide Cobalt with IT Support and access to Client network at each Premises so that the Hosted Software and/or Robots can connect and use it to receive and transmit data. Client will provide Cobalt with IT configuration and user authorizations that allow Cobalt to access Client Security Systems Data pursuant to the scope of the applicable SOW. Client may provide wifi to Robots by means of limited guest network access, however, if the coverage or bandwidth is insufficient for the Robots to perform their normal operating functions, then Client will either install additional guest wifi endpoints or will provide Cobalt with access to Client’s main wifi network. Cobalt reserves the right to charge Client for cellular costs attributable to the Services if Client does not install such endpoints or provide such access.
3.2. Client Security Systems. Client will be responsible for installing and maintaining the Client Security Systems. This includes maintaining sufficient network bandwidth to accommodate reasonable monitoring of the devices. If the network is compromised on the Client Premises, Cobalt will not be able to perform Services and will not be held responsible for any Services during downtime or for re-establishing the network connection. Client will be responsible for providing Cobalt access to the physical Security System software including installing and maintaining associated API integrations, and where applicable, including providing a reasonable number of user licenses. Client represents and warrants that it has secured all rights, and paid all fees and other costs and expenses, for Cobalt to use, access, and operate the physical Security System software as contemplated by this SOW. Client is responsible for obtaining and maintaining all licenses, registration and permits for the Security Systems and Monitoring Services, including those required by the Client’s local government, necessary to use the Services as contemplated under the applicable SOW in compliance with applicable laws and regulations.
3.3. Cooperation of the Parties. Each party will reasonably cooperate with the other party in connection with this Agreement, including by making available any personnel, items, access, assistance and information that may be reasonably required by the other party. Client will allow Cobalt representatives with access, including providing contractor badges and other access materials and information, to the Premises for the purpose of conducting maintenance or diagnostics of the Equipment and performance analyses.
3.4. Robot Handling. Client will use reasonable measures to ensure that the Equipment is not tampered with, handled other than intended, and that its operation is not interfered with; without limiting the foregoing, Client will not attempt to or allow any third party other than Cobalt (or a Cobalt designee) to service, repair, or modify any Robot or Charging Station in any way. Client will be solely responsible for any damage to the Equipment caused by Client or a Client employee, invitee, or guest.
4. Data and Privacy
4.1. Client Information. Cobalt will use prevailing industry standard practices in securing all materials and information provided by Client to Cobalt (“Client Content”) and content and information collected by Cobalt in the course of providing Robot Technology and/or performing the Security Services, such as audio and video files and data and information related to individuals and events on the Premises (“Services Content”) (collectively defined as “Client Information”). Without limiting the foregoing, data collected by the Robots will be encrypted in transit and at rest, and will be stored on the Robots or on secure servers. Cobalt will promptly notify Client of any actual or suspected breach of its systems involving Client Information. Client acknowledges and agrees that some of the Technology may be provided by third party processors and vendors, and that such parties will have in their possession and make use of the Client Information to complete their services or operational duties to Cobalt. Cobalt will use only processors and vendors that use industry standard security practices, and Cobalt will be responsible for any breach of this Agreement caused by a processor or vendor as if Cobalt had committed such breach. If Client’s use of the Security Services and/or Robot Technology is subject to a Data Processing Addendum (“DPA”), said DPA shall be incorporated by this reference herein. If there’s a conflict between this Agreement and the DPA, this Agreement shall supersede and prevail.
5. Licenses and Ownership
5.1. License; Derived Data. Client grants to Cobalt a worldwide, non-exclusive, non-sublicenseable, right to store, access and use the Client Information (a) during the Term, for the purpose of providing the Security Services and/or Robot Technology to Client and for the purpose of testing, analysis and improving the Security Services and/or Robot Technology, and (b) during and after the Term, as required or desirable to comply with applicable law or other legal process and/or to establish Cobalt’s legal rights. Further, Client agrees that Cobalt may utilize data capture, analysis, and machine learning tools to extract, compile, synthesize and analyze data related to the Services Content and end-user activity (“Derived Data”), and to store and use such Derived Data in the aggregate to compile statistics related to the Technology, Security Services, and/or Robot Technology and to monitor, improve and develop the technical functionality of Cobalt’s products and services, provided always that both during and after the Term such Derived Data is de-identified or otherwise not identifiable as to Client or any end-user in any way.
5.2. Cobalt Applications; Work Product. Subject to the terms and conditions of this Agreement, Cobalt hereby grants to Client and its authorized users a non-exclusive license during the Term to access and use the Hosted Software and Robot monitoring and information retrieval software applications in conjunction with the Security Services and/or Robot Technology. As between the parties, Cobalt will own all right, title and interest in and to (a) Cobalt’s Intellectual Property Rights, (b) documentation such as manuals and FAQs prepared in connection with the Technology, (c) subject to Client’s ownership rights in the Client Information, any and all information and Intellectual Property Rights generated by Cobalt in the course of performing the Security Services and/or providing the Robot Technology or arising therefrom, whether in hard copy or electronic form, including all works of authorship, programming tools, reports, designs, configurations, analyses, system performance data, machine learning algorithms (and aggregated results of such machine learning), source and object code, test results, drawings and work papers (collectively, the “Work Product”), and (d) the Technology, including without limitation Robots, Charging Stations and Intellectual Property Rights associated therewith or generated thereby. Client will not disassemble the Robots or Charging Stations or reverse engineer or in any way attempt to ascertain the underlying technology, operation or configurations of any Technology. All rights in and to the Technology not expressly granted to Client hereunder are reserved by Cobalt.
5.3. Intellectual Property Ownership. All right, title, and interest in and to the Technology, including all Intellectual Property Rights therein, are and will remain with Cobalt. Customer has no right, license, or authorization with respect to any of the Technology except as expressly set forth herein. All other rights in and to the Technology and all Intellectual Property Rights therein are expressly reserved by Cobalt. If for any reason, any or all of the Work Product, or elements or derivative works thereof, is found not to be the Intellectual Property Rights of Cobalt, Client shall assign title in such Intellectual Property Rights to Cobalt. To the extent such is not assigned, then (a) Client grants to Cobalt or its licensees or assignee an exclusive, perpetual, irrevocable, worldwide, fully-paid license, with the right to sublicense through multiple levels of sublicensees, under any and all such rights (i) to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise exploit the Work Product throughout the universe in any medium or format and by any means, whether now known or hereafter discovered, (ii) to use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from the Work Product, and (iii) to exercise any and all other present or future rights in the Work Product; and (b) Client agrees that Cobalt may register for copyright in Cobalt’s or its licensee’s or assignee’s name the derivative works or other works incorporating the Work Product and that Client hereby expressly waives, in perpetuity, without limitation, any and all rights that Client may have or claim to have with respect to the Work Product or any element thereof under any law relating to the “moral rights of authors” or any similar law throughout the universe or as a result of any alleged violation of said rights.
6.__
7. Compensation and Submission of Invoices.
7.1. Fees. Subject to Section 6.2, Client shall pay Cobalt the Security Services and/or Robot Technology charges as set out in the SOW(s) then in effect, along with any other fees for additional services or products opted for by Client in such SOW(s) (collectively, the “Fees”). Cobalt shall submit invoices as described in the SOW, Purchase Order (if applicable), or both. Each invoice will cite this Agreement and the SOW and, if applicable, the Purchase Order number for which payment is requested. Fees for Security Services and/or Robot Technology are billed at launch and subsequent extension and/or renewal dates and are due net-30. Partial months will be prorated at 1/30 of the applicable monthly charge for each calendar day Security Services and/or Robot Technology were provided in that month. Except for references to the kind and quantity of products and services purchased, all other terms and conditions in Client’s Purchase Order shall be null and void.
7.2. Annual Adjustment. On the commencement of each Renewal Term, Cobalt shall be entitled to an annual Fees increase, not to exceed five percent (5%) of the then-current Fees unless the parties otherwise agree in writing. Such Fees increase will be effective upon Cobalt’s issuance of an invoice including the increased Fees.
7.3. Taxes. Client shall be solely responsible for, and agrees to pay, any sales, use, excise, value-added, withholding or other taxes or similar charges, as well as and any duties, fees, charges, or assessments of any nature, in each case which are levied, assessed or otherwise imposed by any governmental authority in connection with this Agreement, excluding, however, any taxes levied on Cobalt’s income. Cobalt shall have the right to invoice Client for any such taxes.
7.4. Late Payments. Without prejudice to any other rights that Cobalt may have under this Agreement, Client shall pay interest on such overdue amounts at a rate equal to the lesser of ten percent (10%) or the maximum rate allowed by applicable law, measured from the date the payment was originally due until the date of payment, compounded annually.
7.5. Suspension. If Client pays Cobalt more than thirty (30) days late for undisputed amounts for two (2) consecutive months or twice during any three (3) months period, without prejudice to any other right or remedy available to Cobalt, Cobalt may, upon five (5) business days prior notice given by e-mail, suspend all further Security Services and/or the provision of Robot Technology under this Agreement unless Client either pays Cobalt all amounts past due or makes other arrangements satisfactory to Cobalt for payment thereof. Client acknowledges that (i) Cobalt shall not be liable to Client for any alleged loss, damage or adverse impact on Client’s business arising out of Cobalt’s exercise of the remedies set forth in this Section and (ii) Cobalt may exercise its rights under this Section even if Cobalt has also has given Client written notice of breach and opportunity to cure pursuant to Section 12.
8. Confidentiality. Information that is disclosed by one party to the other party, and that is marked or identified as “confidential”, or which under the circumstances ought reasonably to be understood by the receiving party to be confidential or proprietary, is defined as “Confidential Information.” Confidential Information includes (a) the existence or terms of this Agreement, (b) Work Product, and (c) any information that is given to a party, or to which is exposed to a party during the term of this Agreement, relating to either party’s business, operations or activities, including information about present or proposed products, product developments, plans, designs, strategies, finances, know-how, sales, customers, and marketing or sales techniques or technology. Both parties may disclose Confidential Information only to those employees, advisers or authorized subcontractors (collectively, “representatives”) that need to know the information in the ordinary course and scope of their employment or subcontract and who are bound by written or statutory confidentiality protections at least as restrictive as those set forth herein. The receiving party shall not, and shall ensure that its representatives do not, use any Confidential Information for any purpose other than the limited purpose(s) provided for in this Agreement. Each party shall be responsible for a breach of the confidentiality obligations under this Agreement by its representatives. The foregoing limitations do not apply to the extent such information: (a) is or subsequently becomes publicly available other than through a breach of these limitations; (b) is already lawfully known to the receiving party, without confidentiality restrictions, at the time of disclosure; (c) is developed by the receiving party independent of such information; or (d) is lawfully received by the receiving party from a third party without restrictions on disclosure or use. In the event that a receiving party becomes legally compelled to disclose any Confidential Information provided pursuant to this Agreement, such receiving party, if legally permitted, shall provide the disclosing party with prompt written notice prior to such disclosure and shall reasonably assist such disclosing party (at the disclosing party’s expense) in obtaining a protective order or other appropriate remedy. Both parties agree to return or destroy any or all Confidential Information received at the request of either party or upon expiration or termination of this Agreement; provided that, subject to this Section 7, the receiving party has the right to keep an archival copy of such Confidential Information for purposes of compliance with this Agreement and/or a reasonable records retention policy.
9. Warranties; Covenants.
9.1. Mutual Warranties. Each party warrants to the other that at all times (i) it has the full right, power and authority to enter into this Agreement and each SOW, and (ii) the person signing documents with respect to this Agreement or any SOW is authorized to do so.
9.2. Cobalt Covenants. Cobalt (a) shall perform the Security Services and/or Robot Technology in a professional and workmanlike manner using commercially reasonable care consistent with generally accepted industry standards by personnel with the necessary knowledge, skills, experience, qualifications, and resources to perform the Security Services and/or Robot Technology; and, (b) shall use commercially reasonable efforts to provide the Security Services and/or Robot Technology free of any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code.
9.3 Client Covenants. No materials or information provided or made available by Client in connection with this Agreement, and/or their use by Cobalt in accordance with the provisions of this Agreement, will violate the rights of any third party, or violate any applicable law, rule or regulation. Client is solely responsible for providing appropriate notice and obtaining all necessary or desirable consents, permission and waivers required for Cobalt’s collection, storage and use of data and information in connection with the Security Services and/or Robot Technology, including from its employees and guests of the Premises.
9.4. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY IN CONNECTION WITH THIS AGREEMENT AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH REGARD TO THEIR RESPECTIVE CONTENT, PRODUCTS AND SERVICES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN PARTICULAR, AND NOT BY WAY OF LIMITATION, NEITHER PARTY WARRANTS THAT ITS PRODUCTS OR CONTENT WILL BE ERROR-FREE OR WITHOUT INTERRUPTION.
10. Limitation of Liability
10.1. CLIENT ACKNOWLEDGES THAT NEITHER COBALT NOR ANY OF ITS AGENTS, REPRESENTATIVES, SUPPLIERS, SERVICE PROVIDERS, CONTRACTORS OR SUBCONTRACTORS IS AN INSURER OF OR AGAINST ANY POTENTIAL OR ACTUAL LOSS OR DAMAGE TO PERSON OR PROPERTY THAT MAY OCCUR IN OR AT THE PREMISES, WHETHER AS A RESULT OF BURGLARY, THEFT, FIRE, SMOKE, CARBON MONOXIDE POISONING, PHYSICAL HARM TO ANY PERSON, ENTRY IN OR ONTO THE PREMISES, THE CONDUCT OF ANY PERSONS IN OR ON THE PREMISES, OR OTHERWISE. CLIENT ACKNOWLEDGES THAT THE PAYMENTS CLIENT MAKES UNDER THIS AGREEMENT ARE NOT RELATED TO THE VALUE OF THE PREMISES, CLIENT’S PROPERTY, OR THE PERSONS OCCUPYING OR AT ANY TIME PRESENT IN OR ON THE PREMISES, BUT RATHER ARE BASED ON THE COST OF THE TECHNOLOGY AND THE SERVICES.
10.2. OTHER THAN WITH RESPECT TO A VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, ITS INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7, FRAUD AND/OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (INCLUDING ANY PERSON OR ENTITY CLAIMING THROUGH THE OTHER PARTY) WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, BUSINESS INTERRUPTIONS, OR LOSS OF INFORMATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF $1,000,000.
11. Indemnification. Each party agrees to the following indemnification obligations:
11.1. Cobalt’s Indemnification Obligations. Cobalt shall indemnify, defend and hold harmless Client from and against any costs, damages, expenses (including reasonable attorneys’ fees), claims, demands, actions, proceedings, investigation, loss, or liability (“Costs”) suffered or incurred by Client to the extent arising out of or relating to any claim, action, suit or proceeding by a third party (“Claims”) that is the result of (a) a breach by Cobalt of this Agreement; (b) the gross negligence or willful misconduct of Cobalt, including its employees, agents, Subcontractors, or vendors, and/or (c) a determination that any of the Technology supplied hereunder infringes any Intellectual Property Right of any third party. Cobalt will have no liability or obligation with respect to any Cost to the extent such Cost is caused by (x) use of the Technology by Client not in accordance with this Agreement; or (y) the combination, operation or use of the Technology with other applications, portions of applications, product(s) or services where the Technology would not by itself be infringing.
11.2. Client’s Indemnification Obligations. Client shall indemnify, defend and hold harmless Cobalt from and against any Costs suffered or incurred by Cobalt to the extent arising out of or relating to any Claim that is the result of (a) a breach by Client of this Agreement, or (b) the gross negligence or willful misconduct of Client, including its employees, agents, guests, invitees, contractors, or vendors.
11.3. Indemnification Procedures. The indemnified party shall notify the indemnifying party promptly in writing of any Claim or threatened Claim which may give rise to a party’s indemnification obligations hereunder. The indemnified party shall give the indemnifying party full and exclusive authority for the defense and settlement of such Claim or threatened Claim. The indemnified party shall give the indemnifying party, at the indemnifying party’s expense, any information and assistance reasonably required by the indemnifying party in connection with the defense and settlement of any Claim. Neither party shall settle any claim in any manner which involves the imposition of liability on the other party or any admission of wrongdoing by the other party without such party’s prior written consent, not to be unreasonably withheld or delayed.
11.4. Infringement Claims. In addition to its obligations set forth above, if the reproduction, use, or distribution of any of the Technology is enjoined or becomes the subject of a claim of infringement, or in Cobalt’s sole opinion is likely to occur, Cobalt shall elect one of the following at its discretion, at Cobalt’s expense, without prejudice and in addition to Cobalt’s indemnification obligations, either to: (i) procure for Client the right to continue using the Technology as contemplated in this Agreement; (ii) replace or modify the allegedly infringing portion of the Technology so that it becomes non-infringing provided that such replacement or modification does not result in any material degradation of the performance or features of the Technology; or (iii) if neither of the foregoing alternatives is reasonably practicable or available, immediately terminate Cobalt’s obligations (and Client’s rights) under this Agreement with regard to the Technology upon notice to Client, and such termination shall not be a breach of this Agreement.
12. Insurance.
12.1. Cobalt Insurance. Cobalt shall, at its own expense, at all times during the term of this Agreement provide and maintain in effect those insurance policies and minimum limits of coverage as designated below, and any other insurance required by law in any state where Cobalt provides Security Services and/ Robot Technology under this Agreement.
12.1.1. Worker’s Compensation and Employer’s Liability Insurance. Workers’ Compensation insurance shall be maintained as required by any applicable law. Employer’s Liability insurance shall be maintained in amounts not less than $1,000,000.
12.1.2. Commercial General Liability Insurance. Cobalt shall carry Commercial General Liability insurance of not less than $5,000,000.
12.1.3. Professional Liability (Errors and Omissions) Insurance. Cobalt shall carry insurance for professional liability with limits of not less than $5,000,000.
12.1.4. Cyber and Data Security Insurance. Cobalt shall carry insurance for cyber and data security liability with limits of not less than $5,000,000.
12.1.5. Automobile Insurance. Cobalt shall carry auto insurance with limits of not less than $1,000,000.
12.2. Certificates of Insurance. On Client’s written request, Cobalt will (a) provide Certificates of Insurance, evidencing that the policies required above, are in full force and effect and/or (b) name Client as an additional insured on said policies. Cobalt will provide Client with no less than thirty (30) days written notice prior to any cancellation, termination, or material alteration of any policy.
13. Term and Termination.
13.1. Term. This Agreement shall commence on the Effective Date and will remain in effect until terminated (the “Term”). Each Statement of Work will remain in effect for the period stated in such SOW.
13.2. Termination. Either party can terminate this Agreement or a particular SOW, as applicable, (a) as set forth in Sections 10.4 (Infringement Claims), 13 (Labor Considerations), and 15.3 (Force Majeure), (b) if the other party commits a material breach of this Agreement or such SOW and fails to cure such breach (to the extent cure is possible) within thirty (30) days of receipt by the other party of notice of such breach, or (c) upon written notice to the other party, if (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, if such proceedings are not dismissed within sixty (60) days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.
13.3. Effect of Termination. In the thirty (30) day period following any termination or non-renewal of this Agreement or applicable SOW, Client shall provide Cobalt with reasonable access to the affected Premises so that Cobalt can remove the Hosted Software, Edge Processors, Robots, Charging Stations and any other Cobalt Equipment, Technology, or materials, if applicable. If Client does not allow such access, Cobalt will charge Client, and Client agrees to pay, the full replacement cost of any Equipment or Technology not retrieved from the Premises. Cobalt does not have to provide any Security Services and/or Robot Technology, including monitoring, after the date the Agreement is terminated. The parties will otherwise cooperate to effectuate an orderly wind down and return or destruction of materials containing proprietary of Confidential Information. The provisions of Sections 5, 6, 7, 9, 10, 12, and 15 shall survive any termination or expiration of this Agreement, along with any other term or provision which by its operation is meant to survive.
14. Labor Considerations. Client agrees that: (i) Cobalt shall have the right to use non-union labor (whether provided by Cobalt’s employees, Subcontractors or other third parties) to deliver the Security Services and/or Robot Technology, (ii) it is Client’s responsibility to be aware of any union labor restrictions with respect to the performance of any applicable Security Services and/or Robot Technology under a SOW, and Client will notify Cobalt of any restrictions promptly after it becomes aware of them. Cobalt may decline to provide the affected Security Services and/or Robot Technology if union labor is required, and shall be able to terminate the affected Security Services and/or Robot Technology and corresponding SOW upon written notice to Client.
15. Non Discrimination. Cobalt shall not discriminate, in any way, against any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin, in connection with or related to the performance of this Agreement
16. Miscellaneous.
16.1. Severability. If any court of competent jurisdiction holds that any provision of this Agreement is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired, and all remaining terms of this Agreement remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.
16.2. Import/Export Compliance. Each party shall comply with all applicable export and import laws and regulations during the performance of this Agreement, including but not limited to, the U.S. Arms Export Control Act, ITAR, EAR, and the Export Administration Act.
16.3 Force Majeure. Neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control and which cannot be overcome with reasonable efforts, including, without limitation, any of the following: act of God, governmental act (including any change in any applicable law or any applicable judgment of a relevant court of law that changes the interpretation of the applicable law and affects Cobalt’s performance under the Agreement in a material way), war, fire, flood, explosion, civil commotion, pandemic, industrial dispute of a third party, riots, embargoes, hackers, viruses or denial of service attacks which could not have been prevented through use of industry standard protections (“Force Majeure Event“). Subject to the party so delaying promptly notifying the other party in writing of the reason for the delay and the likely duration of the delay, the performance of the delaying party’s obligations, to the extent affected by the delay, shall be suspended during the period that the cause persists and each party shall use all reasonable endeavors to avoid the effect of that cause, provided that, if performance is not resumed within thirty (30) days of that notice, the non-delaying party may terminate this Agreement upon the delivery of written notice to the delaying party. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of a Force Majeure Event. Notwithstanding anything to the contrary, this Section shall not delay Client’s payment obligations hereunder.
16.4. Assignment. Neither party may assign this Agreement without the other party’s written consent, except in the event of a reorganization, merger, consolidation or sale of all or substantially all of its assets related to this Agreement, in which event no consent will be required. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective permitted successors, executors and administrators, as the case may be. Any assignment in violation of this provision shall be null and void from the beginning.
16.5. Independent Contractors. The parties are independent contractors to each other in any and all actions under and contemplated by this Agreement. This Agreement shall not be construed to create any employment relation, partnership, joint venture, or agency relationship between the parties or to authorize any party to enter into any commitment or agreement binding on the other.
16.6. Waiver. Any failure by either party to detect, protest, or remedy any breach of this Agreement shall not constitute a waiver or impairment of any such term or condition, or the right of such party at any time to avail itself of such remedies as it may have for any breach or breaches of such term or condition. In order to be enforceable, a waiver shall be in writing and signed by the parties.
16.7. Jurisdiction and Venue; Attorneys Fees. The Agreement will be governed by the laws of California, without reference to conflict of law principles. Each party agrees that any suit, action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereby shall be instituted and prosecuted in the state or federal courts located in San Mateo County, California, and each party irrevocably submits in any such suit, action or proceeding to the jurisdiction of said courts and waives any and all objections to such jurisdiction that it may have. In any legal action or proceeding, the prevailing party shall be entitled to recover its reasonable attorneys’ fees from the non-prevailing party.
16.8. Equitable Relief. The parties acknowledge and agree that any breach by a party of Section 7 or its violation of the other party’s Intellectual Property Rights would cause irreparable injury to the other party for which monetary damages would not be an adequate remedy and, therefore, the non-breaching party will be entitled to seek equitable relief without having to post a bond or surety. The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
16.9. Mutual Drafting. No provision of this Agreement may be interpreted against any party because such party or its counsel drafted the provision. An SOW may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
16.10. Headings; Interpretation. Cobalt and Client agree that: (i) clause headings have been inserted for convenience only and should not be taken into account in its interpretation; (ii) unless the context clearly indicates a contrary intention, references to the singular include the plural, an expression which denotes a natural person includes legal persons and references to any gender include the other gender and vice versa; (iii) any appendix. exhibit, SOW or schedule to this Agreement shall form part of this Agreement; (iv) where any term is defined within a particular clause, other than the interpretation clause, that term shall bear the meaning ascribed to it in that clause wherever it is used in this Agreement; and (v) the use of the word “including” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it.
16.11. Notices. Any notice to be given under this Agreement will be in writing and addressed to the party at the address listed in the applicable SOW. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by electronic mail, upon confirmation from the receiving party, or (iv) if sent by certified or registered mail, within five days of deposit in the mail.
16.12. Order of Precedence. If there is a conflict between or among the Agreement and documents attached to and incorporated by reference, and unless the parties otherwise agree in writing that a provision in a subordinate document shall prevail, the conflict will be resolved as follows, solely to the extent of that inconsistency: (a) a conflict between the terms of the Agreement and those set forth in an exhibit or hyperlink will be resolved in favor of the Agreement, and (b) a conflict between the terms of the Agreement and those set forth in a SOW will be resolved in favor of the SOW. None of the terms, provisions, or conditions of any proposal, quotation, invoice, purchase order, acknowledgement or other business form that Client may use will apply to or add to any rights, duties or obligations of the parties under, and may not otherwise be read to modify, this Agreement. Each party rejects any additional or conflicting terms, provisions, or conditions on any Client proposal, quotation, invoice, purchase order, acknowledgement, or other business form sent by Client.
16.13. Entire Agreement; Amendment. This Agreement and its exhibits contain the complete agreement between the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may be amended by Cobalt.
Exhibit A
Technology and Service Specifications
Hosted Software:
- Hosted Software will be deployed in a Cobalt Cloud Server or on the Client Premises using an Edge Processor and will intake Client Security Systems Data as agreed by the parties for the purpose of creating Events for response by Specialists performing Monitoring Services.
- Except as set forth herein, Cobalt will at its expense provide all Cloud-based disk storage, server capacity and other hardware and software required to provide the Hosted Software and Services to Client, and all related applications, labor, expertise, tools and technical requirements.
- Hosted Software will be subject to periodic downtime due to planned or unplanned maintenance, internet outages or network bandwidth limitations outside of Cobalt’s control, force majeure events, and actions or inactions on Client’s part.
- Cobalt will provide or make available to Client Events, logs of activity and other information generated by the Hosted Software.
Monitoring Services:
- Specialists in Cobalt Command Centers will review Events in the Hosted Software System and respond according to the Client’s escalation protocols.
- Monitoring will be subject to periodic downtime due to planned or unplanned maintenance, internet outages or network bandwidth limitations outside of Cobalt’s control, force majeure events, and actions or inactions on Client’s part.
- For each Event transmitted through the Hosted Software, the Command Center will respond in accordance with its internal operating procedures, and only if warranted in the sole discretion of the Command Center. Not all Events require notification to Call List. Command Center may not notify the individuals on the Call List if it is unable to determine a threat to person or property, including because Command Center cannot discern a threat from the Client Security System Data provided or it is unable to access video of the trigger event. Once dispatched, the Call Center may be unable to recall individuals on the Call List.
- Cobalt will have no liability for permit fees, false alarms, false alarm fines, the manner in which First Responders respond, any response delays caused by First Responders, the failure of First Responders to respond, or the manner in which Events are handled by the Command Center of First Responders.
Robots and Coverage:
- Robots will be deployed in the Premises and utilized as agreed by the parties. Live Specialist-supported assistance will be provided as needed.
- Patrols will be subject to periodic charging periods.
- Except as set forth herein, Cobalt will at its expense provide all disk storage (up to 30 days on the Robot), server capacity and other hardware and software required to provide the Technology to Client, and all related applications, labor, expertise, tools and technical requirements.
- Cobalt will provide or make available to Client maps of the Premises, logs of activity and other information generated by the Robots.
- Each Robot will not patrol: outdoors, multiple floors (unless specified in a SOW), stairs, locked/closed-door areas, bathrooms, unnavigable or obstructed areas, or areas listed by Client as off-limits.
Robot Service Aspects:
- If desired, opportunities for Meet & Greets and general orientations are encouraged to properly introduce the Cobalt Robot to Client personnel. Cobalt will reasonably support these endeavors with proper signage and marketing collateral.
- Client stakeholders will have access to a web-based interface called Cobalt Dashboard. This will allow Client security personnel to view live data streams, events, and facilitate collaboration.
- Reports will be delivered on a daily and weekly basis, summarizing the incident-related activities. This includes detail on major Events, badge challenges (if applicable), and engagements with the Cobalt Command Center. This reporting may be customized to Client’s needs as mutually agreed by the parties in writing.
Robot Maintenance & Service:
- Robot maintenance will be provided at no cost by Cobalt, and will be as set forth in the SLA.
- Cobalt will use commercially reasonable efforts to keep each Robot operational and in good working condition according to its general specifications and will use commercially reasonable efforts to address any issues raised by Client regarding the functioning or appearance of each Robot.
- If a Robot has a material malfunction that cannot be repaired on site, it will be replaced by Cobalt in accordance with the SLA.
Exhibit B
Service Level Agreement (“SLA”)
I. Performance SLA
Contacting Cobalt.
For Severity Level 1 support Events related to the Hosted Software, Robot Technology, and/or Monitoring Services Client can call Cobalt’s emergency support line. For Severity Level 2 and 3 support matters relating to the Hosted Software, Robot Technology, and/or Monitoring Services and for other non-urgent Events, Client can call Cobalt during Cobalt business hours or submit an email request. Each such support request received by Cobalt will be logged and used to create a service ticket (“Service Ticket”) and assigned a Severity Level. Cobalt will use commercially reasonable efforts to investigate each problem reported on a Service Ticket in detail in a timely and diligent fashion. Cobalt may offer support by means of an online customer support center, to which Client will route support requests via an automated ticketing system. Cobalt “business hours” are Monday through Friday from 9:00 am to 6:00 pm PT, exclusive of United States federal government holidays.
Cobalt will use commercially reasonable efforts to promptly correct the problem reported in the Support Ticket or provide a workaround to permit Client to resume use of the impacted Security Services. If Cobalt is unable to quickly resolve a problem or if the problem requires further investigation, Cobalt will develop an action plan and communicate this plan to Client at the phone number or e-mail address associated with the request. A problem will be considered closed/resolved upon the earlier of: (a) the resolution of such problem; (b) the delivery of a workaround (which may include replacement of an impacted Robot or its hardware); (c) in the case of Severity Level 3 Events, Cobalt’s commitment to continue to use commercially reasonable efforts to correct the problem, to consider adding the requested feature to a future release of the relevant Technology, or Cobalt’s commitment to provide information reasonably requested by Client. For the avoidance of doubt, Cobalt shall have the sole discretion to determine the severity of Events and to upgrade or downgrade the Severity Level of any given problem, provided always that it does so reasonably.
Event Classification.
Severity 1 Events. A Severity 1 Event is (a) the complete inoperability of a Robot or material degradation of its capabilities, whether the root cause is due to hardware or software; (b) the complete inoperability of an Edge Processor or material degradation of its capabilities, whether the root cause is due to hardware or software. Cobalt will respond to Client within one (1) hour of being notified of a Severity 1 Event, and will provide Client with further updates twice per day until resolved.
Response Time: Cobalt will send a qualified technician on-site at the Premises (where applicable) if the Severity 1 Event is not resolved within one (1) Business Day after Client’s report of such error. Cobalt’s technician shall diagnose whether the problem is related to hardware or software; if the problem is determined to be caused by hardware alone, allow 24 more business hours for shipping of the required part. If the Robot or Edge Processor cannot be repaired onsite, replacement Equipment will be shipped in 2 business days.
Severity 2 Events. A Severity 2 Event is the inoperability or degradation of some aspect of (a) a Robot’s performance or (b) the Hosted Software’s performances, but which does not materially impact the Monitoring Services.
Response Time: Client shall receive an initial response from Cobalt within two (2) Business Day hours with further updates from Cobalt to Client once per Business Day until resolved. Cobalt will send a qualified technician on-site at the Premises (where applicable) if the Severity 2 Event is not resolved within three (3) Business Days after Client’s report of such error. Cobalt’s technician shall diagnose whether the problem is related to hardware or software; if the problem is determined to be caused by hardware alone which cannot be repaired onsite, replacement Equipment will be shipped within two (2) Business Days.
Severity 3 Events. A Severity 3 Event is an Event that does not impact the essential operation of the Hosted Software, Robots, or Monitoring Services, such as a minor software bug, or cosmetic damage to a Robot, or Client has a request for information, feature suggestion, etc. Client shall receive an initial response from Cobalt within one (1) Business Day with further updates from Cobalt to Client as reasonably determined by Cobalt.
Response time: Cobalt shall respond within five (5) Business Days after Client’s report of such error or Cobalt’s detection of such error and will use commercially reasonable efforts during Business Hours to fix Severity Level 3 problems.
International: Robot and Edge Processor shipments to our international customer sites are more complex due to international shipping requirements and thus take more time. Communications from Cobalt will remain unchanged in the event of Severity 1-3 events that occur overseas. However, response times for replacement Robots and parts will be executed on a case by case basis. Cobalt will use commercially reasonable efforts to ensure the timely servicing of overseas Robots.
Delay. Notwithstanding anything to the contrary in this SLA, the parties acknowledge and agree that on-site technician visits and Robot replacements are subject to delay due to travel, access to Client premises, regulatory requirements (e.g., export/import requirements), logistical issues, and staffing requirements.
Updates and Upgrades. Cobalt will, from time to time, make corrections to the software used to deliver the Technology including without limitation, patches, bug fixes, or workarounds, and minor modifications to existing software features which Cobalt makes available to similarly situated Clients at no additional cost (“Updates”). Cobalt may also make improvements that provide additional functionality which Cobalt makes available to similarly situated clients at no additional cost (“Upgrades”). Such Updates and Upgrades will be delivered over the air to the Hosted Software, Robots, and Edge Processors on or around that time they are made available to Cobalt’s other clients. Nothing herein shall require Cobalt to develop or provide Upgrades or Updates except as necessary to comply with its Severity Level obligations described herein.
II. Specialist SLA
Events. Events created or received by Hosted Software and/or encountered by a Robot will be classified according to the internal logic of the Hosted Software as set by Cobalt, which takes into account the need for a prompt Specialist investigation or response. Level 1 Events are (a) Events involving an actual or potential security Event which is likely to require human intervention (e.g., a forced entry or visible firearm), (b) Call Requests for which a Specialist response is needed, (c) a complete loss of connectivity/communications with the Client Security Systems and/or Robot for a period of over six hundred (600) seconds, or (d) Severity 1 Events. Level 2 Events are other Events reported by the Hosted Software and/or Robot, but which do not require an immediate response (e.g., a report of a blocked pathway).
Specialist Response Times. Specialists will use commercially reasonable efforts to respond to (a) Level 1 Events within thirty (30) seconds, and (b) Level 2 Events within thirty (30) minutes, in each case measured from the time the Event is reported by the Robot (or after ten minutes, in the cases of lost connectivity). Specialists will respond according to Cobalt protocols and escalations, which will include further investigation of the situation around the Event and notification of appropriate parties using a Call List. For Events which a Specialist believes to require immediate Client notification, Cobalt will call a primary Client contact, then will call a secondary Client contact if the primary contact does not answer or promptly respond. Client will provide contact information to Cobalt and will ensure that it remains current.
The Client contacts will be authorized to act on Client’s behalf, including the authority to decide not to contact emergency response organizations. Cobalt is entitled to rely solely on the instructions of such person. Client acknowledges and agrees that Cobalt may be subject to applicable laws and industry standards designed to reduce false alarms, and that these may result in practices and procedures that delay either the notification of emergency responders, or other verification procedures in response to Events. IF COBALT HAS REASON TO BELIEVE, IN ITS SOLE DISCRETION, THAT NO EMERGENCY CONDITION EXISTS, IT HAS THE RIGHT TO ELECT NOT TO FOLLOW THE NOTIFICATION OR OTHER VERIFICATION PROCEDURES UTILIZED FOR EMERGENCY CONDITIONS. Cobalt shall not be liable for its failure to contact Client or any person as contemplated in this paragraph. Clients understands that, upon receiving notification of an Event, the police, fire department or other responding authority may forcibly enter the Premises.
Credit.
A “Service Level Breach” is an event where stated availability service level commitment is not met for Security Services and/or a Robot. Cobalt will provide one (1) day of credit for each failure to adhere to the Severity 1 response times set forth above. The actual credit amount will be the daily prorated portion of the invoiced amount for the Robot based on a 30-day billing period. Client will not be eligible to receive multiple credits as a result of multiple service failures or outage events occurring during the same period of time. The “Maximum Credit” means the total credits that the Client may receive in a single billing period for a Robot. The Maximum Credit for any given month will not exceed a total of ten (10) days pro rata credit in a single billing period. Credits will be applied to the next month’s invoice.
Notwithstanding anything to the contrary in this SLA, it will not be a Service Level Breach and no remedy shall be available to Client hereunder as to a particular SOW if Client has not timely paid any undisputed amounts due under the SOW, or to the extent the Service Level Breach is caused by any of the following: (i) a failure of Client equipment (e.g., wifi) or equipment of a Client’s vendor; (ii) a failure of Client-controlled actions and environment at the Client’s premises (e.g. power failure, wifi access disabled, firewall blocking, etc.); (iii) Force Majeure events as defined under the Agreement; (iv) Client’s negligence or willful misconduct, which may include Client’s failure to follow agreed-upon procedures or Client personnel interfering with the operation of the Robots (such as their ability to access the Charging Stations); (v) any scheduled maintenance periods when Client has been informed of such maintenance, or (vi) failure of Client to provide Cobalt with access to the Premises as reasonably needed to enable it to comply with its support obligations.
A claim by Client for credit due to a Service Level Breach must be submitted by Client to Cobalt in writing not later than thirty (30) calendar days after the last day of the calendar month in which the Service Level Breach occurred. Such writing must be sufficiently detailed to allow Cobalt to determine whether or not a credit is due. Approved credits will be applied by Cobalt to Client’s invoice within sixty (60) days of the Client’s credit request submission. Client will be notified by Cobalt of any denied credits within thirty (30) days of Client’s credit request submission.
The Service Level obligations set forth in this SLA shall apply only to the Security Services and Robot Technology with an expressly defined service level metric and do not apply to any other Services , except as may be explicitly provided to the contrary in the applicable SOW. This SLA states Client’s sole and exclusive remedy for any Service Level Breach.
