LAST REVIEWED AND UPDATED JANUARY 29, 2021
This Collaboration Agreement and all referenced documents, including the Data Processing Agreement (as applicable), Code of Conduct and Supplier Declaration, is an integrated part of the Collaboration Order Form entered into between Cognite and the Representative (collectively the “Collaboration Agreement”). Defined terms used in this Collaboration Agreement are either set out in the Collaboration Order Form or in Section 14.
The Parties agree that Representative shall market Cognite and Cognite Technology to future Customers in the Territory. Subscriptions or purchase for Cognite Technology shall be concluded between Cognite and the Customers in Cognite's own name.
The Parties shall cooperate in good faith and collaborate to pursue the purpose of this Collaboration Agreement during the Term.
Cognite hereby grants to Representative a non-exclusive, non-transferrable, royalty free license to market Cognite Technology to any potential new Customers in the Territory during the Term for the sole purpose of providing potential new Customers to Cognite ("License").
The License includes a non-exclusive right to use Cognite’s trademarks, service marks, trade names, the CDF name and other Cognite Technology names, logos, designs and other designations or brands used by Cognite in connection with Cognite Technology (collectively, the "Cognite Marks") solely in connection with promoting and marketing Cognite Technology as permitted by this Collaboration Agreement and to the sole benefit of Cognite. Representative shall not alter Cognite Marks in any way or remove Cognite Marks from any materials provided by Cognite.
Other than the limited and non-exclusive right to use Cognite Marks granted in this Section 2.1, Representative is granted no other right, title or interest in Cognite Marks. Representative acknowledges Cognite’s ownership of and rights in Cognite Marks. Representative shall take no action inconsistent with Cognite’s ownership of Cognite Marks and shall not challenge Cognite’s rights.
This Collaboration Agreement provides a non-exclusive right to Representative to suggest a potential new Customer to Cognite. Without limiting the foregoing, Cognite reserves the right to (i) market and sell Cognite Technology directly or through other authorized representatives and (ii) appoint other third parties to market and promote Cognite Technology.
The Representative’s marketing obligations shall be agreed in the Collaboration Order Form. The Representative shall make no representations or warranties concerning Cognite or the Cognite Technology: (i) on Cognite’s behalf, (ii) that violate any laws or regulations, or (iii) are knowingly false, misleading or inconsistent with materials approved, published or supplied by Cognite.
The Representative shall promptly provide Cognite information on each potential new Customer and relevant commercial conditions relating to the potential Customer by submitting a completed Potential Customer Registration Form (available here) to the email address designated in the form. At Cognite’s request, Representative shall (a) supply any additional information reasonably requested by Cognite, (b) discuss each completed Potential Customer Registration Form in detail with Cognite, and (c) assist Cognite in making contact with the potential Customer by arranging an introduction, meeting, conference call or other means of communication.
Within ten (10) Business Days following the receipt of the completed Potential Customer Registration Form, Cognite shall in writing either (i) approve the potential new Customer or (ii) not approve the potential new Customer, in both situations informing the Representative of Cognite's decision. Cognite shall negotiate the terms and conditions under which it will provide Cognite Technology directly to the Customer and decides to enter into agreements with potential new Customers at its sole discretion. If an approved potential new Customer (an "Approved Customer") enters into a Customer Agreement within three (3) months from the Representative submitting the Potential Customer Registration Form, the Representative shall be entitled to a fee as set out in the Collaboration Order Form. If an Approved Customer does not enter into a Customer Agreement within three (3) months of Representative submitting the Potential Customer Registration Form, it shall no longer be considered an Approved Customer.
Cognite shall provide to the Representative such services and marketing material as reasonably required to enable the Representative to fulfill its obligations set out in Section 2.1, including but not limited to training of the Representative’s personnel. Further, Cognite shall compensate the Representative as agreed in the Collaboration Order Form.
The Parties shall cooperate to create a joint marketing plan for the Territory, that includes focus territory and vertical(s), joint value prop and events planned, and agreed Ignite sponsorship level. The Parties shall cover their own marketing costs from each Parties’ marketing budget.
The marketing plan shall regularly be updated by the Parties. Feedback from Customers on market activities shall be mutually communicated between the Parties regularly.
Cognite may at its own discretion require Representative's personnel to complete certain reasonable training relevant for Representative's marketing services for Cognite Technology, provide by Cognite
Cognite shall compensate the Representative for the services provided under this Collaboration Agreement in accordance with the pricing and payment terms agreed in the Collaboration Order Form. Cognite shall once a year and upon request from the Representative, provide the Representative with the information required for the Representative to invoice Cognite.
If a Party fails to make payment of any amount within the stipulated time, the other Party shall, without prejudice to any other remedies available to the Party under this Collaboration Agreement or at law, (i) claim simple interest at the rate of 5 % per annum in respect of such unpaid amount and (ii) suspend performance of its obligations under this Collaboration Agreement for as long as the amount remains outstanding.
The Parties shall take appropriate measures to address the information security requirements associated with the performance of each Party's obligations pursuant to this Collaboration Agreement, including but not limited to ensure the confidentiality of both Parties' and Customers' data. Both Parties shall take appropriate measures to protect against unintended modification and deletion of data, and against virus and other malware attacks.
If Cognite is to process personal data during the performance of their obligations provided for in this Collaboration Agreement. Cognite's standard Data Processing Agreement shall apply between the Representative (as data controller) and Cognite (as data processor).
For the purpose of the Collaboration Agreement, each Party shall be deemed a separate data controller as defined in GDPR Article 4 no. 7 with regards to processing of data of potential customers. The Parties shall not be deemed joint controllers according to GDPR Article 26. The representative shall at all times comply with GDPR.
Each Party is, and shall remain, the sole and exclusive owner of all right, title, and interest in and to its IPR, and neither Party shall acquire any rights to the other Party's IPR except as explicitly stated in this Collaboration Agreement.
Cognite shall retain the right of ownership of all data that is entrusted to Representative and which is stored or processed with the help of the services provided by Representative under this Collaboration Agreement. Representative shall have access to such data to the extent necessary to enable Representative to fulfil its obligations pursuant to the Collaboration Agreement.
All Confidential Information exchanged or otherwise transferred between Cognite and the Representative shall be treated as confidential, and shall not be disclosed by the receiving Party to any third party, or used by the receiving Party for any other purpose than for which it is disclosed, without the written consent of the disclosing Party, unless such Confidential Information:
(a) is already known by rightful means to the receiving Party at the time the information was received;
(b) is or becomes part of the public domain other than through a fault of the receiving Party;
(c) is received from a third party without an obligation of confidentiality of which the receiving Party was or should have been aware; or
(d) is required by Applicable Laws, governmental or other public authority regulation or decision, or ordered by a court of law.
Where the circumstances set out in Section 6 (d) apply, the receiving Party shall disclose only that portion of the Confidential Information, which it is legally required to disclose and exercise its best efforts to ensure that said Confidential Information shall be treated confidential.
Without prejudice to the foregoing, (i) the receiving Party may disclose Confidential Information to a third party, to the extent necessary for the performance of the Parties' obligations under this Collaboration Agreement, provided that the receiving Party shall procure that such third party shall be bound by such confidentiality obligations at least as onerous as set out in this Section 6.
The receiving Party shall ensure that Confidential Information shall be handled securely and shall be stored in locked files. Electronically stored information shall be inaccessible to unauthorized personnel.
This obligation to observe confidentiality shall continue for ten (10) years after the expiration or termination of this Collaboration Agreement. For the avoidance of doubt, each Party shall, except as otherwise agreed, treat the existence and content of this Collaboration Agreement as Confidential Information.
Each Party represents to the other Party that: (i) it is a business entity duly organized and in good standing as required under all jurisdictions where this Party does business including the Territory; (ii) the Party's execution, delivery and performance of this Collaboration Agreement has been duly authorized by all necessary action on the part of this Party; (iii) this Collaboration Agreement constitutes a legal, valid and binding obligation enforceable against that Party in accordance with its terms; and (iv) the Party will comply with all Applicable Laws and regulations in performing its duties under this Collaboration Agreement.
Representative represents to Cognite that it has the technical skills, knowledge, qualified personnel, and sales facilities to market Cognite Technology and perform its duties hereunder.
Cognite shall indemnify the Representative and its respective directors, officers, employees, and agents, and defend and save each of them harmless, from and against any and all losses, damages, liabilities, costs, and expenses, (including reasonable attorneys’ fees and expenses) (“Losses”) in connection with any and all suits, investigations, claims, or demands from any third party that the use of the License within the scope of Section 2 infringes or misappropriates any copyright, trade secret, patent, or trademark right of such third party, provided that Cognite is given prompt notice and control of such claim, that the Representative does not prejudice Cognite's defense of such claim, that the Representative gives Cognite all reasonable assistance in connection with such claim at Cognite’s expense, and that the claim does not arise from (i) use of Cognite Technology or Cognite Marks in a modified form or in combination with materials not furnished by Cognite, or (ii) any content, information, or data provided by the Representative or other third parties. The foregoing states the entire liability of Cognite to the Representative for infringement of any third party's IPR.
The Representative shall indemnify Cognite, its affiliates and their respective directors, officers, employees, and agents, and defend and save each of them harmless, from and against any and all Losses in connection with any and all suits, investigations, claims, or demands from any third party arising out of or in connection with the (i) Representative's use of the License, except for claims as set out in Section 8.1, and (ii) Representative's provision of any warranty for Cognite Technology to any Customer greater than the potential warranty provided by Cognite in the Customer Agreement.
In no event shall any Party be liable under or in connection with this Collaboration Agreement, whether in tort, contract, or otherwise, for loss of profit, special, indirect, consequential, exemplary, incidental, or punitive damages or losses. The aggregated and total liability of each Party arising out of or related to this Collaboration Agreement shall not exceed the total amount paid by Cognite to the Representative under this Collaboration Agreement in the twelve (12) month period immediately preceding the event giving rise to the liability. For the avoidance of doubt, this limitation of liability shall be cumulative and not per incident.
The limitations of liability set out in Section 8.3 shall not apply in relation to a Party's breach of Section 6, Section 7, Section 8.1, Section 8.2, or Section 10, or in the case of gross negligence or wilful misconduct by the Senior Officer of Cognite or the Representative.
This Collaboration Agreement enters into force on the Effective Date and continues until the end of the Term, whereby this Collaboration Agreement terminates automatically, unless terminated earlier as allowed for under this Collaboration Agreement.
Each Party may terminate this Collaboration Agreement, including all licenses granted herein, by thirty (30) days’ prior written notice to the other Party. Notwithstanding the foregoing, Cognite shall have the right to terminate this Collaboration Agreement immediately upon the material failure of the Representative to observe, keep, or perform any of the covenants, terms, or conditions herein related to (i) the use or disclosure of Confidential Information or (ii) the License (iii) breach of Section 10.
Each Party shall comply, and cause its personnel, agents, and subcontractors to comply, during the Term, with all Applicable Laws, rules, regulations, orders, codes, and charters, including competition, sanctions, environmental, labor and ethics rules, and Cognite's Code of Conduct. The Representative shall also comply with Cognite’s Supplier Declaration.
The Cognite Technology may be subject to export laws and regulations of the United States and other jurisdictions. Cognite and the Representative each represents that it is not included on any U.S. government denied-party list. The Representative will not violate any United State export laws or regulations.
Any dispute arising out of or in connection with this Collaboration Agreement shall be exclusively governed by and construed in accordance with the governing law as set out in the table below. The governing law is dependent on the Cognite entity that has entered into the Collaboration Agreement with the Representative.
Any dispute, controversy, or claim arising out of or in connection with this Collaboration Agreement, its interpretation, construction or performance, or the breach or enforcement thereof (whether in contract, in tort, or based on statute or regulation) shall be referred to, and finally and exclusively be settled by arbitration conducted in accordance with the table below, dependent on the Cognite entity that has entered into the Collaboration Agreement with the Representative.
The language of the arbitration shall be English. The arbitral proceedings and the arbitral award, including all information disclosed in the course of the proceedings, shall be considered as Confidential Information.
The Cognite entity entering into this Collaboration Agreement, and the contact details to which the Representative shall direct notices under this Collaboration Agreement, are set out in the Collaboration Form.
If an extraordinary situation should arise which is outside the control of the Parties, and which makes it impossible for a Party to fulfil its obligations under this Collaboration Agreement (“Force Majeure”), the affected Party shall notify the other Party of this as soon as reasonably practicable. Force Majeure shall include war, strike, lockout, riot, epidemic, pandemic, and natural catastrophes such as flood, earthquake, hurricane, volcanic eruption, and sandstorm. The obligations of the affected Party shall be suspended for as long as the Force Majeure prevails. The corresponding obligations of the other Party shall be suspended for the same period.
This Collaboration Agreement constitutes the entire agreement between the Parties in respect of the subject matter contained herein and supersedes any and all prior agreements and understandings between the Parties with respect to the subject matter hereof.
If and to the extent that any provision of this Collaboration Agreement is held to be inconsistent with any applicable law or regulation, invalid, or unenforceable, then such provision shall (to the extent of such inconsistency, invalidity or unenforceability) be of no effect and shall be deemed not to be included in this Collaboration Agreement but without invalidating any of the remaining provisions of this Collaboration Agreement.
No amendment of this Collaboration Agreement shall be valid unless executed in writing by both Parties. Unless expressly agreed, no amendment shall constitute a general waiver of any provisions of this Collaboration Agreement, nor shall it affect any rights, obligations, or liabilities under or pursuant to this Collaboration Agreement which have already accrued up to the date of such amendment.
To the extent permitted by Applicable Laws, Cognite may assign this Collaboration Agreement. The Representative may not assign this Collaboration Agreement, unless agreed between the Parties in writing.
Nothing in this Collaboration Agreement shall be construed to create the relationship between the Parties of partnership, principal and agent, or fiduciary and beneficiary. Neither Party shall have the right or authority to enter into any contract, commitment, or agreement in the name or on behalf of the other Party. The Parties are independent contractors and principals for their own accounts.
The terms and conditions of this Collaboration Agreement are set out in the following documents:
In case of conflict between the documents (i) – (iii) above, the documents shall prevail in the order they are listed.
"Applicable Laws" mean all applicable laws, regulations, requirements or orders, which are issued by any governmental body with legal authority to exercise legislative, judicial, regulatory or administrative functions.
"Approved Customer" means as defined in Section 2.1.
"Business Day" means all Gregorian calendar days others than Saturdays, Sundays and public holidays in Norway.
"CDF" means as defined in the Collaboration Order Form.
"Code of Conduct" Cognite's Code of Conduct available at https://f.hubspotusercontent10.net/hubfs/6407318/Code%20Of%20Conduct.pdf.
"Cognite" means the Cognite entity entering into this Collaboration Agreement as set out in the Collaboration Order Form.
"Cognite Marks" means as defined in Section 2.1.
"Cognite Technology" means CDF, software which utilizes the underlying CDF via application programming interface to make data available, and all underlying intellectual property rights.
"Collaboration Agreement" means this Collaboration Agreement, including the Data Processing Agreement, Code of Conduct and Supplier Declaration, Collaboration Order Form, and any Amendment Order Forms.
"Confidential Information" means any information concerning a Party or its business, which may reasonably be considered as proprietary or confidential, whether in a tangible or intangible form, and whether or not designated by a Party as proprietary or confidential.
"Customer" means any customer entering into Cognite's Master Subscription Agreement.
"Customer Agreements" means the Master Subscription Agreements entered into between Cognite and Approved Customers for CDF and any Cognite applications.
"Data Processing Agreement" means Cognite's Data Processing Agreement available at https://content.cognite.com/data-processing-agreement.
"Effective Date" has the meaning set out in the Collaboration Order Form.
"GDPR" REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
"IPR" means intellectual property rights of any kind existing now or in the future anywhere in the world, whether registered or not, and all applications, renewals, extensions of, and rights to apply for the same, including without limitation, patents, trademarks, design rights, copyright, publishing rights, moral rights, database rights, service marks, logos, business names, domain names, trade names, and other rights in goodwill, know-how, trade secrets, and other protected material, each in any form or format, including without limitation any and all intellectual property rights in and to any inventions, new technology, reports, data, data structures, databases, calculations, documents, drawings, sketches, specifications, equipment, algorithms, heuristics, computer programs, and source codes for software, and including without limitation the right to sue for passing off or unfair competition, rights to use, and to protect the confidentiality of, Confidential Information, and all other intellectual property rights, and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection.
"License" means as defined in Section 2.1.
"Party"/"Parties" has the meaning given in the Collaboration Order Form.
"Potential Customer Registration Form" has the meaning set out in Section 1.1.
"Representative" means you, the legal entity who has entered into a Collaboration Agreement by signing and accepting the Collaboration Order Form.
"Supplier Declaration" Means Cognite's Supplier Declaration available at https://content.cognite.com/cognite-supplier-declaration.
"Term" has the meaning set out in the Collaboration Form.
"Territory" means the geographically restricted area set out in the Collaboration Order Form.
