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Termsof Sale


BY CLICKING I AGREE OR INSTALLING OR USING THE LICENSED PRODUCTS, USER AGREES TO BE BOUND BY THESE TERMS AT THE PRICES SET OUT ON THE ORDER FORM OR AS AGREED TO BY PARTIES IN A SEPARATE AGREEMENT, EFFECTIVE UPON THE LAST DATE OF SIGNATURE OF THE ORDER FORM (THE “EFFECTIVE DATE”). IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. This Agreement contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

This Agreement is between Cosm Inc., a Delaware Corporation, including its subsidiaries and affiliates (referred to as “COSM”), and the individual or entity accepting these terms (referred to as “User”), and is for the sale by COSM of its projections systems and software to the User.

Each Party, by its acceptance of the terms hereof, warrants that it has the authority to enter into this Agreement and grant the rights and perform the obligations contemplated by this Agreement.



1.1. “AAA” means the American Arbitration Association as represented by any of the organization’s regional offices.

1.2. “Agreement” means this Agreement, the Order Form, and it Attachments, as amended and supplemented from time to time.

1.3. “Attachment” means attachments, schedules, exhibits and addenda to the Order Form or this Agreement.

1.4. “User” and “COSM” have the meaning given in the initial paragraph of this Agreement and may hereinafter be referred to individually as a “Party” and collectively as the “Parties”.

1.5. “User Representative” means the individual appointed herein by the User to act on its behalf for all matters relating to this Agreement and any replacement person as may be appointed.

1.6. “Confidential Information” is information which COSM or User desire to protect against unauthorized disclosure or use and which is (a) disclosed in tangible form clearly marked or identified as confidential or proprietary at the time of disclosure, or (b) disclosed in non-tangible form, identified as confidential or proprietary at the time of disclosure, and summarized sufficiently for identification and designated as confidential or proprietary in a written memorandum sent to the receiving Party within thirty (30) calendar days of disclosure. Confidential Information may include information of third parties. The terms and conditions of this Agreement are considered Confidential Information. The economic terms of this Agreement, the Documentation and the Software provided with the System are Confidential Information for purposes hereof.

1.7. “Order Form” means an ordering document executed by User and COSM or its parent, subsidiaries, or affiliates, which describes the licensed products and services being provided to User. Order Forms that reference this Agreement shall be deemed a part of this Agreement.

1.8. “Documentation” means information and data regarding the installation, operation and maintenance of the System. Documentation may be in written or electronic medium.

1.9. “COSM Representative” means the individual appointed by COSM herein to act on its behalf for all matters relating to this Agreement, except its amendment, and any replacement representative appointed as provided herein.

1.10. “Price” means the amount to be paid to COSM by the User pursuant to Section 3.1; as such amount may be adjusted as provided herein.

1.11. “Show” means a production of content, which can be displayed using a Digistar 7 or other similar playback equipment. A Show may include, but is not limited to by way of example, pre-rendered objects, backgrounds, audio (narration and music), time-line choreography and movement of the objects within the scene to create a flow of such objects, narration and music into one integrated presentation.

1.12. “Site” means the building, facility, plant, auditorium, theater or other location where the System will be physically installed.

1.13. “Software” means the computer programs, applications, star data files, coordinate grids, and constellation data files owned by COSM and licensed to the User under this Agreement. The Software consists of machine-readable object code and specifically excludes sources or source code.

1.14. “System” means the Evans & Sutherland Digistar 7 planetarium projection system and Show Production System, a previous version of Digistar, CX Engine, or any combination thereof, described herein with any associated equipment, Software, Documentation, and services.


2.1. See Order Form.


3.1. Price. The User shall pay COSM the aggregate sums listed in the Order Form. Such Price is subject to adjustment for change orders, and as otherwise provided herein or in the Order Form.

3.2. Conditions. The Price is exclusive of and the User shall pay all (a) duties, export/import costs, licenses or fees (including building permits) and (b) local, state, federal or foreign sales, use, value-added and the like taxes. To the extent that such taxes or charges have been paid by COSM, User shall reimburse COSM for them.

3.3. Taxes. User shall be responsible for and shall pay all taxes now in effect or hereafter imposed or based upon the exhibition, possession or use by User of the System or Show(s) licensed hereunder, upon the grant of the Sale, License or the exercise thereof, measured by the Price, however determined, paid or payable by User to COSM under this Agreement, or imposed in connection with the importation of the System or Show(s) or media thereof into the jurisdiction where the User is located. The word “tax” as herein used shall include, without limitation, taxes, fees, assessments, charges, imposts, customs duties, levies, excises, whether denominated as sales, gross income, gross receipts, personal property, storage, use, consumption, license, import, compensating, excise or privilege tax. Furthermore, any applicable taxes will be paid by the User and will not reduce the Price due to COSM. Upon User’s failure or refusal to pay any tax or any part thereof, COSM shall have, with respect thereto, all the remedies herein provided for the collection of the Price, as well as all other remedies provided by law

3.4. Tax Exemption. If User claims exemptions from applicable taxes, User must furnish to COSM, at the time this Agreement is signed, a copy of the exemption certificate or other evidence of exemption.


4.1. Timing of Payments. The Price shall be paid in accordance with the schedule in the applicable Order Form:

4.2. Past Due. All payments are due and payable on the date relating to the above-described events and any payment shall be past due thirty (30) calendar days thereafter.

4.3. Billing Address. If User’s billing address differs from the address previously provided by User, then invoices shall be sent to the address listed in the Order Form:

4.4. Payment Method. All payments hereunder shall be made in the lawful currency of the United States and made by check or wire transfer sent via the information listed in the Order Form:

4.5. Late Payment Charges. A late fee of 1.5% per month (18% APR), or the maximum amount permitted by applicable law, whichever is lesser, will be charged on all accounts 30 days past due. In the event it becomes necessary for COSM to place an account for collection, User agrees to pay all expenses, charges and costs relating thereto including reasonable attorney’s fees.

You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Site and have gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).

You will only use the Site for your own internal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Site is prohibited by applicable laws, then you aren’t authorized to use the Site. We can’t and won’t be responsible for your using the Site in a way that breaks the law.


5.1. Delivery is scheduled for the dates as Provided in the Order Form.

5.2. User Representative. The User appoints a representative as outlined in the Order Form to act on its behalf for all business and administrative matters arising under this Agreement. COSM has the right to rely on and the User will be bound by all written acts, decisions and notices from the User Representative. The User may from time to time appoint a substitute User Representative by written notice to COSM. The User Representative may be reached by phone at the phone number listed on the Order Form.

5.3. COSM Representative. COSM appoints Mr. Kirk Johnson, President and COO, to act on its behalf for all business, and administrative matters arising under this Agreement except amendments hereto. User has the right to rely on and COSM will be bound by all written acts, decisions and notices from the COSM Representative. COSM may from time to time appoint a substitute COSM Representative by written notice to the User. The COSM Representative may be reached by phone at +1 (801) 588-7511 and by fax at +1 (801) 588-4520.


6.1. Delivery. The Digistar 7 and any associated equipment will be delivered to the carrier FCA, COSM’ facility, Salt Lake City, Utah on or before the delivery date listed above, with shipping and insurance charges paid by User. All System components and parts shall be prepared by COSM for shipment in a manner consistent with reasonable and adequate protection for normal carrier transportation.

6.2. Transfer of Title and Risk of Loss. Title to and risk of loss of the System shall pass to the User upon delivery of the System by COSM to the carrier.

6.3. System Insurance. The User agrees to insure the System from the time it is delivered to the carrier until all money owing for the System has been paid to COSM.


7.1. Limited System Warranty. COSM warrants that for the period of twelve (12) months (Warranty Period) from the date of shipment of the System, the equipment comprising the System will conform in all material respects to the functional specifications contained in this Agreement and will be free from “material” defects in workmanship and materials.

7.2. Limited Software Warranty. COSM warrants that for the period described in the Order Form (Warranty Period) from the date of shipment of the System, the Software will conform in all material respects to specifications contained in this Agreement and will be free from “material” defects.

7.3. COSM’ Responsibility.

7.3.1. During the Warranty Period COSM will replace any part or component of the System which fails to meet or causes the System to fail to meet the functional specification. Such replacement will be made by exchanging the failed part with a new or repaired part from COSM’ inventory. This warranty excludes any and all consumables such as projector lamps. The cost of shipping failed parts to and from COSM is the responsibility of the User. All failed parts returned by the User to COSM shall become the property of COSM.

7.3.2. The provisions of this section set forth COSM’ entire liability and User’s sole remedies with respect to warranty claims.


8.1. Termination for Cause. If a Party breaches any of the material terms and conditions of this Agreement, the non-breaching Party may terminate this Agreement upon thirty (30) days’ written notice to the breaching Party specifying such breach, unless within the period of such notice, all breaches specified in such notice have been remedied, or unless the breach is one which, by its nature, cannot be fully remedied in thirty (30) days, but the breaching Party has undertaken reasonable, good faith efforts toward remedying the breach within such period, and continues to use reasonable, good faith and diligent efforts to remedy the breach. Neither Party may terminate this Agreement for any reason apart from Breach.


9.1. Except as expressly provided herein, nothing in this Agreement, including the furnishing of any Confidential Information by either Party, shall be construed as granting to the other Party either expressly, by implication, estoppel or otherwise, any right, title or interest in the property of the other Party. COSM or its licensors own and will retain all rights, title, and interests, including but not limited to trademarks, copyrights, patents, patent rights, trade names, trade secrets, and other intellectual property rights, in and to the System, and in algorithms, know-how, ideas, techniques, procedures and concepts embodied therein. User does not obtain any rights, title, or interests, including but not limited to such intellectual property rights, in the System by this Agreement.


10.1. Software: COSM owns certain computer programs that are an integral part of the Digistar 7 (referred to as “Software”) and will license a copy of such Software to the User under the following conditions.

10.1.1. License. Software is licensed, not sold. COSM grants and the User accepts, subject to the terms and conditions of this Agreement including payment of the Price, a perpetual (unless terminated as provided herein) non-transferable and non-exclusive license to use the Software included in the System in object code form. User may (a) copy and use such Software only on the System; (b) copy the Documentation for use with such Software; and (c) make backup and archival copies of such Software. User shall not, unless expressly provided for herein, (a) assign, license or voluntarily transfer, whether by operation of law or otherwise, its rights hereunder; (b) loan, rent, lease, give, license or sublicense the Software to any party; (c) de-compile, disassemble or otherwise reverse engineer the Software; (d) modify, translate or create derivative works of the Software; or (e) remove any copyright or other proprietary designations from the Software.

10.1.2. Right to Merge. The User may merge the Software with other software material to form an updated work. Any portion of the Software included in an updated work is subject to all the terms of this Agreement and shall carry the same COSM copyright notice. However, the User agrees and waives its rights under the Warranty provisions of this Agreement for any period(s) during which the User uses the Software furnished hereunder in a merged form. If, for any reason, this license is terminated, the User agrees to completely remove the Software or any portion of it from any updated work.

10.1.3. User Developed Software. The User may develop separate, additional programs or software, for projection and display by the System. Any software so developed is the property of the User. No warranty is expressed or implied by COSM regarding such User developed software.

10.2. Shows: COSM owns certain Shows that have been produced for use in all-dome projection systems. Under the terms of this Agreement, COSM is licensing one (1) such Show(s) to the User as a perpetual license, or more if identified in the Order Form. The following apply to this license:

10.2.1. Title to and ownership of the Show(s) shall at all times remain with COSM. This ownership includes all rights in the Show(s), including all rights in patents, copyrights, trade secrets and other intellectual property rights applicable to the Show(s), and as such, all rights shall remain vested in COSM.

10.2.2. User agrees to protect COSM’ property rights by not disclosing or making the Show(s) and/or documentation delivered to it available in any form or in any media to any other person, company, institution or organization. Redistribution in any form or manner is strictly prohibited.

10.2.3. User agrees not to: (a) de-compile, disassemble or otherwise reverse engineer the Show(s), (b) modify, translate or create derivative works of the Show(s) or (c) remove any copyright or other proprietary designations from the Show(s), except as specifically provided herein.

10.2.4. The license is non-exclusive and COSM may distribute the Show(s) or portions thereof for exhibition in any media and to any other venue on whatever terms COSM deems acceptable.

10.2.5. User is solely responsible, at its own cost and expense, for maintenance of the Show(s) after they have been installed and shown to be operational.

10.3. Captured Media Usage: The System has the ability to capture high resolution dome originals from real time and video content displayed on the system. User is granted certain rights to use material captured from the System. The following conditions apply:

10.3.1. Copyright Use and Distribution: Evans & Sutherland retains the copyright for features built into Digistar 7. User is granted permission to use captured material in-house at User’s facility. User may also distribute captured material to Digistar 3, Digistar 4, Digistar 5, Digistar 6 and Digistar 7 sites and the DUG Library. Prior written permission from COSM is required to distribute captured material outside of the Digistar community. AMNH Digital Universe data may not be captured; user is responsible for securing permission to use Digital Universe and any other copyrighted third-party material. User indemnifies and holds harmless Evans & Sutherland for any inappropriate use of any copyrighted third-party material.

10.3.2. Credits: When content captured by Digistar appears in a show or presentation, a written credit must be included that acknowledges “Evans & Sutherland Digistar 7” as a production source. Example credits: This show was created on an Evans & Sutherland Digistar 7 system; or Digital starfield was created on an Evans & Sutherland Digistar 7 system.


11.1. Intellectual Property Infringements. If notified promptly of any action brought against User based on a claim that the System, or any portion thereof, which was provided by COSM, infringes any issued patent, registered copyright, registered trademark, or is a misappropriation of a trade secret, COSM will defend such action at its expense and will pay all costs and damages (including, without limitation, reasonable attorneys’ fees) finally awarded in, or in settlement of, any such action, provided that COSM shall have no liability for any settlement or compromise made without its consent. To qualify for such defense and payment, User must allow COSM to control fully the defense of such action and all related settlement negotiations. Additionally, the User shall, upon the request of COSM, reasonably cooperate with COSM in such matters. In the event that a final injunction is obtained against User’s use of the System or any portion thereof by reason of such infringement, or if in COSM’ reasonable opinion, the System or any portion thereof is likely to become the subject of such a claim, COSM will, at its expense and in its sole discretion, either procure for User the right to continue to use the product, replace or modify the product so that it becomes non-infringing.

11.2. COSM General Indemnification. COSM will indemnify and hold harmless User and its officers, employees, agents, representatives, successors, and assigns, from and against any and all claims, demands, losses, costs, damages, liability or expense (including reasonable attorney’s fees and costs) arising out of or in connection with: (a) any claim for unpaid compensation by COSM’ employees or any contractor or subcontractor or supplier furnishing goods and services to COSM with regard to the System; (b) any claim arising from the acts or omis­sions of COSM, and/or its employees, or agents, officers or directors, whether negligent or intentional; and (c) any misrepresentation, breach of war­ranty or failure to comply with any of COSM’ material obliga­tions hereunder.

11.3. User General Indemnification. User will indemnify and hold harmless COSM and its officers, employees, agents, representatives, successors, and assigns from and against any and all claims, demands, losses, costs, damages, liability or expense (including attorney’s fees), arising out of or in connection with: (a) any claim arising from the acts or omissions of User, and/or its employees, or agents, officers or directors, whether negligent or intentional; (b) any misrepresentation, breach of warranty or failure to comply with any of User’s material obligations hereunder; and (c) the construction, operation, use and promo­tion of the System, including, without limitation, any damage caused by materials and equipment in the System which have not been provided by COSM hereunder.

11.4. Notification. In the event either Party is notified or otherwise becomes aware of a third-party claim or action which is or might be the subject of this indemnification, they will promptly notify the other Party in writing.


12.1. Limitation of Liability. In no event will either party be liable for any lost revenues or profits or other special, indirect, consequential, or punitive damages arising out of or related to this agreement or the purchase, installation, use or performance of the system, whether based in contract, tort, or otherwise, even if that party has been advised of the possibility of such damages, and regardless whether any remedy set forth herein fails of its essential purpose. Such excluded damages include, but are not limited to, costs of removal and reinstallation of items, loss of good will, loss of profits, loss of use or interruption of business.

12.2. Commencement of Actions. Claims, however asserted, arising out of this Agreement, shall be commenced within one year of the date the claim accrues. This Section 16.2 shall not, however, apply to actions for breaches of Software license provisions hereunder, or to actions for violations or infringements of COSM’ rights relating to Software licensed thereunder.

12.3. Maximum Aggregate Liability. In no event will COSM’ total liability from all causes of action of any kind related to this agreement, including tort, contract, negligence and strict liability, exceed the total price paid by User to COSM.


13.1. User Protection of COSM Rights. The User hereby agrees to protect COSM’ patents, copyrights and other proprietary information to the same extent the User would protect such rights if owned by the User.


14.1. Negotiation. Prior to the commencement of arbitration proceedings respecting any dispute that the Parties’ representatives are unable to resolve, the dispute will be referred in a timely manner to progressively higher-level management for resolution. The foregoing procedure will not apply to any claim or allegation of a violation of confidentiality obligations hereunder.

14.2. Arbitration. Any unresolved claim, dispute, or controversy arising from this Agreement will be submitted to arbitration under the rules of the American Arbitration Association (the “AAA”) or, by mutual consent, any other internationally recognized arbitration association. The rules of the AAA or other association will apply.


15.1. Entire Agreement. This Agreement, including any Attachments hereto, constitutes the entire agreement between COSM and the User with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, oral or written, between COSM and the User with respect to such matters. Unless otherwise provided herein, this Agreement may not be modified, amended, rescinded, or waived in whole or in part, except by a written instrument signed by the duly authorized representatives of both Parties.

15.2. Excusable Delays. Neither Party will be responsible for delays in performance caused by acts of God, force majeure or governmental authority, strikes or labor disputes, or fires, pandemics or other loss of development facilities, unavailability of goods, or breach of contract by supplier (herein referred to individually or collectively as “Excusable Delay”), provided that the delaying Party promptly gives notice of such delay and provides reasonable documentation or evidence thereof to the other Party. The Party not relying on Excusable Delay may terminate this Agreement upon 10-calendar days’ notice to the delaying Party in the event of Excusable Delays exceeding one hundred twenty (120) calendar days.

15.3. Choice of Law. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Utah, United States of America (except the body of law controlling conflict of laws) and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. The Parties agree that this Agreement is not and shall not be considered for any purpose to be, an agreement of “agency” or “distributorship” within the meaning of applicable law. The Parties further agree that, to the extent this Agreement is construed under the laws of a country other than the United States of America, mandatory provisions of local law which cannot be waived or varied by the Parties will apply, and “standard” or “implied” contractual provisions are waived and will not be considered to the maximum extent permitted by applicable law. This Agreement will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party.

15.4. Assignment. This Agreement is not assignable without the prior written approval of the non-assigning Party, other than to a successor by merger or to a purchaser of substantially all the assets of the assigning Party. Any attempt to assign or transfer any rights, duties or obligations hereunder without such approval shall be void. Any amounts due or which become due under this Agreement may be assigned by COSM, provided that such assignment shall not be binding upon the User unless and until the assignment is received by the User.

15.5. English Language. All Documentation, designs, drawings, diagrams, manuals, instructions, Software, reports, notices and other materials to be provided by COSM or the User under this Agreement shall be in the English language.

15.6. Export/Import Licenses. Where required, COSM shall obtain an export license. The User shall be responsible for obtaining and paying for any import license and complying with all import regulations.

15.7. Attorney’s Fees. If any action at law or equity is brought to enforce or interpret the provisions of the Agreement, the prevailing Party will be entitled to costs and reasonable attorney’s fees in addition to any other relief to which it may be entitled.

15.8. Headings. The headings, titles and caption in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

15.9. Counterparts. The Order Form, which incorporates this Agreement, may be signed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Telecopied or facsimile signatures will have the same effect as original signatures.

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