LAST REVIEWED AND UPDATED NOVEMBER 10, 2020
This EULA is an agreement between you (also called the "End-Customer") and Cognite (each a "Party" and collectively the "Parties"), whereby Cognite, as licensor, hereby grants to the End-Customer on the terms and conditions set out herein a non-exclusive right to use CDF, Cognite Applications or other Cognite Technology, delivered as software-as-a service on a subscription basis.
You have entered into a Subscription Agreement for the Subscription to CDF, Cognite Applications or other Cognite Technology, with a reseller or another party offering such Subscriptions in accordance with a license from Cognite (the "Reseller").
You have accepted and hereby accept the terms and conditions of this EULA by click-through the first time you access the Subscription Items. Cognite is willing to license the Subscription Items to the End-Customer, provided that the terms of this EULA governs the use of such Subscription Items. If you do not accept all the terms and conditions in this EULA, you are not entitled to use any of the Subscription Items.
This EULA constitutes a legally enforceable agreement between you and Cognite.
Defined terms used in this EULA are set out in Section 16.
The End-Customer shall have a non-exclusive, payable, non-sublicensable, non-transferrable user right to the Subscription Items covered by the Subscription, during the Term.
The End-Customer's use of the Subscription Items shall be restricted to
(i) the End-Customer's Normal Business Activities in the Territory; and
(ii) the End-Customer's own use only (which for the sake of clarity shall not include access or use by any other than the legal entity identified as the End-Customer).
The End-Customer shall not, directly or indirectly, sublicense or transfer the rights granted to it under this EULA. The End-Customer shall not make access to the Subscription Items available to any third parties.
Except as explicitly stated in this EULA, this EULA shall not grant the End-Customer any right or license to the Subscription Items, or any other IPR or property of Cognite, and no license or other rights shall be created by implication or estoppel. In particular, but without limiting the generality of the foregoing, no right or license in or access to source code to CDF, is granted hereunder.
The End-Customer shall not itself and shall not permit any others to:
a) modify, alter, adapt, translate, reverse-engineer, decompile, disassemble or attempt to discover the source code, underlying ideas, algorithms, file formats or programming interfaces of CDF or any other Subscription Items, or any other Cognite Technology in any way; or
b) prepare any derivative works of the Subscription Items, or reproduce, distribute, sell, or resell CDF, other Subscription Items, or any other Cognite Technology in any manner or for any purpose.
The End-Customer shall not, directly or indirectly, use such information disclosed by Cognite or the Reseller, or gained by the End-Customer from the Subscription Items to design, specify, develop, integrate, market, license, distribute, or host any Subscription Items that are competitive with any of the Subscription Items, or disclose any such information to any third party.
The Reseller may make Extractors available for the End-Customer. The End-Customer shall be solely and fully responsible for testing, installation, operation, updates, and any other use or function of Extractors. Upon termination of the Subscription, the End-Customer shall delete the Extractors from its IT-infrastructure. Cognite shall not be liable for any Extractors.
The Subscription Items may be based upon open source code or source code licensed from Cognite's third party licensors and subcontractors. Relevant open source licenses and third party licenses may be published on: https://docs.cognite.com/dev/ (or on such other webpage as the Cognite or the Reseller may notify to the End-Customer).
Cognite may from time to time make available as open source certain application development tools and software development kits, jointly referred to as Cognite Development Accelerators. These shall be referred to on: https://docs.cognite.com/dev/ (or on such other webpage as Cognite or the Reseller may notify to the End-Customer). Cognite shall not be liable for any Cognite Development Accelerators.
The End-Customer shall be responsible for its conduct, End-Customer Data, and communications with others while using the Subscription Items. The End-Customer shall comply with the following requirements when using the Subscription Items:
a) The End-Customer shall use the Subscription Items in compliance with, and only as permitted by, Applicable Laws.
b) The End-Customer shall not misuse the Subscription Items by interfering with their normal use, or attempting to access them using a method other than through the interfaces and instructions that is provided to the End-Customer.
c) The End-Customer shall not circumvent or attempt to circumvent any limitations that Cognite imposes on the End-Customer's account.
d) Unless authorized by Cognite in writing via the Reseller, the End-Customer shall not probe, scan, or test the vulnerability of CDF or any other Subscription Items or system, network, or component used for providing the Subscription Items.
e) If the End-Customer engages in abnormal usage of the Subscription Items, which adversely affects the speed, responsiveness, stability, availability, or functionality of the Subscription Items for other users, Cognite will via the Reseller endeavour to notify and assist the End-Customer to remedy such usage to a level not affecting the Subscription Items for other users.
As part of receiving the Subscription Items, if agreed between the Reseller and the End-Customer, the End-Customer shall have access to an admin console and an account, which the End-Customer shall use to administer the Subscription Items.
The End-Customer shall be responsible for safeguarding the End-Customer's password and any other credentials used to access its account. Credentials shall not be shared with third parties. The End-Customer shall be responsible for any activity occurring on the End-Customer's account.
If at any time the End-Customer wishes to change or extend its Subscription beyond the scope defined in the Subscription Agreement and Cognite accepts, such changes shall be defined in an amendment to the Subscription Agreement, signed by the Reseller and the End-Customer, and this EULA shall apply to any such changes to the End-Customer's Subscription. In such case, the latest dated and signed amendment to the Subscription Agreement shall constitute the scope of the Subscription.
Cognite shall be entitled to make commercially reasonable changes to the Subscription Items from time to time. Such modifications may include introduction of new subcontractors.
Cognite shall announce if it intends to (i) discontinue, or (ii) make backwards incompatible changes to, the functionality of the Subscription Items, and such changes may be announced in the admin console made available to the End-Customer or in the description of CDF that is maintained at https://docs.cognite.com/cdf/ (or on such other webpage as Cognite or the Reseller may notify to the End-Customer). Cognite shall use commercially reasonable efforts to continue to operate the Subscription Items' functionality and features without these changes for at least twelve (12) months after that announcement, unless:
(i) required by Applicable Laws; or
ii) doing so creates a security risk.
Provided that Cognite and the Reseller have agreed that Cognite shall provide support to the End-Customer on behalf of the Reseller, then such support shall be provided by Cognite pursuant to the Cognite SaaS SLA (available at https://content.cognite.com/cognite-saas-service-level-agreement-sla, as amended from time to time).
The Cognite SaaS SLA shall not apply to Extractors and Cognite Development Accelerators.
Each of Cognite and its third party licensors (which for the avoidance of doubt excludes the Reseller and the End-Customer) is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Subscription Items and the Cognite Technology.
Cognite and the End-Customer are and shall remain the sole and exclusive owner of all right, title, and interest in and to its own Background IPR and this EULA does not affect such ownership. No rights to the other Party's Background IPR is acquired under this EULA, unless expressly stated. For the avoidance of doubt and without limiting the generality of the foregoing, the Subscription Items and Improvements shall be considered Cognite's Background IPR. This does not alter the fact that such Background IPR is licensed from Cognite AS to Cognite K.K. and Cognite Inc., and that the ultimate owner of such Background IPR is Cognite AS or its third party licensors.
Cognite shall be the sole and exclusive owner of all Improvements and any and all IPR related thereto, and shall have the right to use and commercialize any Improvements at its discretion without any restrictions whatsoever.
The End-Customer shall, except if otherwise agreed between the Reseller and the End-Customer, retain ownership to End-Customer Data.
In order for Cognite to continue the development of CDF, Applications, and other new software technologies for the benefit of end-customers, the End-Customer hereby grants to Cognite a limited, sublicensable right to use anonymized End-Customer Data that is processed in CDF, CDF Applications or CDF Technology, for the duration of the Term. Cognite shall only use the anonymized End-Customer Data for the purpose set out in this Section 6.4.
Cognite shall not use End-Customer Data for any purpose other than for the delivery of the Subscription Items (in the capacity of being the Reseller's subcontractor) or as otherwise explicitly permitted herein, and Cognite shall, upon being notified by the Reseller that the Subscription has expired or otherwise upon the End-Customer’s request, delete or destroy all copies of End-Customer Data stored on any computer or other device or which are otherwise in Cognite’s possession or control, except to the extent Cognite is required to retain such End-Customer Data by Applicable Laws.
Cognite shall maintain administrative, physical, and technical safety measures for protection of the security and confidentiality of End-Customer Data, including but not limited to measures to prevent access, use, modification, or disclosure of End-Customer Data, except as expressly permitted by the End-Customer in accordance with this EULA and with Applicable Laws.
Cognite shall promptly inform the End-Customer of any known or reasonably suspected security breach or unauthorized disclosure of End-Customer Data, personal data, or Confidential Information (“Security Event”). If there is a Security Event, Cognite shall (i) take all steps to mitigate any potential damages; and (ii) promptly respond to security-related inquiries from the End-Customer and take all steps to identify, investigate, and resolve applicable security issues on a timely manner.
If End-Customer includes any personal data in End-Customer Data, the End-Customer acknowledges that Cognite's standard Data Processing Agreement shall apply between the End-Customer (as data controller) and Cognite (as data processor). In case the Reseller has access to personal data included in the End-Customer Data, the End-Customer acknowledges that Cognite's standard Data Processing Agreement shall apply between End-Customer (as data controller), Reseller (as data processor) and Cognite (as sub-processor). Cognite's standard Data Processing Agreement is available at https://content.cognite.com/data-processing-agreement (as amended from time to time).
The End-Customer shall be responsible for maintaining, protecting, and making backups of all End-Customer Data sent to Cognite, including but not limited to CDF via any Extractors.
If the Subscription Items infringe any third party's IPR, then any claim from such third party shall be referred to the Reseller. For the avoidance of doubt, Cognite has no obligation to indemnify the End-Customer for such claim.
Until any infringement is resolved, Cognite via the Reseller shall be entitled to make the Subscription Items in question unavailable to the End-Customer.
All Confidential Information exchanged or otherwise transferred between Cognite and the End-Customer 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;
(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 7 (d) apply, the receiving Party shall disclose only that portion of the Confidential Information which it is legally required to disclose. The receiving Party shall exercise its best efforts to obtain reasonable assurances that confidential treatment shall be accorded such Confidential Information.
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 Subscription Items, 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 7, and (ii) Cognite shall be entitled to name the End-Customer as a user of the Subscription Items for reference purposes in its marketing efforts, and may strictly for the purpose thereof reproduce the End-Customer's tradenames and logos.
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 expiry or termination of the Subscription Agreement and this EULA.
Any warranties, liability for damages, and remedies related to the Subscription Items, or the subject matter of this EULA, are provided to the End-Customer solely by the Reseller, and is not provided by Cognite. For the avoidance of doubt, this means that any claim the End-Customer may have related to the Subscription Items and/or the Subscription Agreement, shall be directed towards the Reseller only. The End-Customer shall indemnify and keep the Reseller harmless from any loss suffered by the Reseller with reference to any claim the End-Customer makes against Cognite in violation of the foregoing.
Any direct claim against Cognite shall constitute material breach by the End-Customer of this EULA.
Cognite shall under no circumstance be liable, or responsible for the Reseller, or any actions or omissions performed by the Reseller.
If the End-Customer despite the preceding has any basis for claiming damages from Cognite, then the aggregate liability for damages shall not exceed USD 10,000. For the avoidance of doubt, this limitation of liability shall be cumulative and not per incident. This applies regardless of cause, whether through the negligence and/or breach of duty (statutory or otherwise) of Cognite or anyone Cognite is responsible for, or otherwise, that arises out of or in connection with the Subscription Items and/or this EULA.
The End-Customer shall be responsible and liable for its own actions. Cognite shall have the right to hold the End-Customer liable for any breach of this EULA.
This liability is an addition to any liability the End-Customer has agreed with the Reseller in the Subscription Agreement.
In no event shall Cognite be liable towards the End-Customer under or in connection with this EULA or the subject matter contemplated hereunder, including, without limitation, the Subscription Items, whether in tort, contract, or otherwise for:
a) special, indirect, consequential, exemplary, incidental, or punitive damages or losses; or
b) loss of production, lost earnings or revenues of any kind, loss of anticipated cost savings, loss or corruption of End-Customer Data and consequences hereof, loss related to third party claims, or loss of profit or anticipated profit, in each case whether indirect or not.
The limitations set out in this Section 10 shall not apply in the relationship between the End-Customer and the Reseller, if the Reseller and the End-Customer has agreed other or no limitations.
This EULA enters into force on the Effective Date and shall remain in force until the expiry of the Subscription Period, unless terminated earlier in accordance with this EULA (the "Term").
If the Subscription Agreement is terminated (for any reason), this EULA shall terminate at the end of the then current Subscription Period.
Cognite is entitled to terminate this EULA or the license grant set out in Section 1 and any applicable Cognite SaaS SLA, if the End-Customer is in material breach of this EULA, and fails to remedy the breach within thirty (30) days following written notice of breach from Cognite. If the material breach is not possible to remedy, Cognite may terminate the license grant with immediate effect.
For the avoidance of doubt, any termination of the license grant as set out in this EULA, is without liability to Cognite, and such termination do not release the End-Customer from any payment obligation under its agreement with the Reseller, nor does it entitle the End-Customer to any refund.
Cognite may immediately terminate this EULA or the license grant set out in Section 1 and any applicable Cognite SaaS SLA by written notice to the End-Customer if:
(a) an order is made or a resolution is passed for the winding up or insolvency of the End-Customer, or the End-Customer makes an assignment for benefit of creditors generally, or a receiver or administrator is appointed to its assets or any similar process is put into effect or the End-Customer suspends payment of its debts or is unable to pay its debts as they become due; or
(b) the End-Customer files for bankruptcy, becomes insolvent, or makes a general compromise or arrangement with its creditors.
If the Subscription pursuant to Section 11 terminates or expires, for whichever reason, the license grant set out in Section 1 terminates simultaneously.
The End-Customer shall comply with any Applicable Laws of any authority having jurisdiction in general and in connection with this EULA and the Subscription Items.
The End-Customer shall (i) give priority to safety in order to protect life, health, the environment, and property; and (ii) ensure that tax deductions and other payments are made in accordance with Applicable Laws.
Without limiting the generality of this Section 12 and in recognition of the Applicable Laws relating to anti-bribery and corruption of any country in which Cognite delivers the Subscription Items, the End-Customer and the Reseller shall not for itself or anyone else, directly or indirectly:
(a) give or offer any improper advantage to anyone as a consequence of their holding or in connection with the performance of a post, office, or commission;
(b) request, receive, or accept an offer for an improper advantage in connection with the performance of a post, office, or commission;
(c) give or offer any improper advantage with the purpose of influencing the performance of a post, office, or commission; or
(d) request, receive, or accept an offer for an improper advantage with the purpose of influencing the performance of a post, office, or commission.
This EULA 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 location of the headquarter of the End-Customer.
If at any time a dispute, controversy, or claim arising out of or in connection with this EULA, its interpretation, construction or performance, or the breach or enforcement thereof, or any claims or disputes that in any way concern the conduct of any Party in connection with this EULA or otherwise (whether in contract, in tort, or based on statute or regulation) shall arise, then any Party shall give notice to the other Party in writing of the existence of such dispute, controversy, or claim, specifying its nature and the point of issue. The Parties shall have sixty (60) days from the date of such notice, or such later period as may be agreed, to resolve such dispute, controversy, or claim amicably.
Disputes, controversies, or claims among the Parties that remain unresolved at the expiration of the period specified in Section 13.2 may be referred by either Party to and shall be finally and exclusively settled by arbitration. The seat of arbitration shall follow the location of the headquarter of the End-Customer in accordance with the table below.
The arbitral proceedings and the arbitral award shall be kept strictly confidential. This confidentiality obligation shall cover all information disclosed in the course of such arbitral proceedings. This obligation to observe confidentiality shall continue ten (10) years after the termination of this Agreement, or ten (10) years after the case is finally settled by an arbitral award, whichever is the latest. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings.
To the extent permitted by Applicable Laws, Cognite may assign this EULA. The End-Customer shall not assign this EULA, unless agreed between the Parties in writing.
Cognite shall be entitled to update this EULA to reflect changes in Applicable Laws, modifications to the Subscription Items, or for any other legitimate and reasonable reason.
The terms and conditions of the End User License Agreement are set out in the following documents:
In case of conflict between the documents referred to above, document (a) shall prevail over the other documents.
"Applicable Laws" means 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.
"Applications" means software which utilizes CDF via the CDF API.
"Background IPR" means any IPR conceived, designed, created, developed, reduced to practice, or otherwise acquired or controlled by Cognite or the End-Customer prior to, or otherwise outside of and unrelated to the scope of this EULA.
"CDF" means Cognite Data Fusion, a software system made and implemented by or on behalf of Cognite, the core functionality of which is to collect, process, and store data and to make such data available for consumption. The term "CDF" shall include CDF API and Extractors. A further description of CDF shall be maintained at https://docs.cognite.com/cdf/ (or on such other webpage as Cognite may notify to the Customer).
"CDF API" means one or more application programming interfaces made available as software-as-a-service, which the Applications and Cognite Applications may use to utilize CDF.
"Cognite" means Cognite AS, a Norwegian limited liability company with company registration number 918274758, with corporate seat in Norway.
"Cognite Applications" means Applications owned or licensed by Cognite and existing at the Effective Date, excluding Applications developed by or on behalf of Cognite for the exclusive use of a third party.
"Cognite Development Accelerators" means application development tools and software development kits, which Cognite from time to time may make available as open source.
"Cognite SaaS SLA" means Cognite's standard service level agreement (available at https://content.cognite.com/cognite-saas-service-level-agreement-sla), as amended from time to time.
"Cognite Technology" means CDF, Cognite Applications, any other technologies owned or licensed by Cognite, and all underlying IPR therein and thereto, including Improvements.
"Confidential Information" means any information concerning Cognite, the Reseller, and the End-Customer that 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, including, without limitation, procedures, documentation, marketing data, trade secrets, know-how, technical data, software, source codes, valuations, costs, rates, and prices and any other information of a proprietary or confidential nature relating to the disclosing Party or its business, as well as any information created or derived from any such information, irrespective of disclosing medium and storage. Without limiting the generality of the foregoing, Confidential Information include any information regarding or gained from CDF and any other Subscription Item. The Confidential Information may be labelled as "confidential", "proprietary", or similar without this being an explicit requirement for protection as Confidential Information.
"Data Processor Agreement" has the meaning set out in Section 6.6.
"Effective Date" has the meaning set out in the Subscription Agreement.
"End-Customer" means you, the legal entity who has entered into a Subscription Agreement with a Reseller for a Subscription of certain Subscription Items.
"End-Customer Data" means data received by Cognite from the End-Customer, or from a third party on behalf of End-Customer, including any personal data, for use as basis for the Subscription. The term "End-Customer Data" shall include raw data, data that has been derived from raw data, and processed data, i.e. in the form raw data appears after it has been processed by Cognite (in Cognite's capacity of being a subcontractor to the Reseller), but shall exclude, for the avoidance of doubt, CDF and any parts thereof.
"Extractors" means software made available to the End-Customer in the form of executable code for use to extract End-Customer Data and send End-Customer Data to CDF.
"Improvements" means any and all modifications, improvements, or further developments of CDF, Cognite Applications, and Cognite Technology.
"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.
"Normal Business Activities" means all activities that are presently, or may reasonably become, part of the business of the End-Customer, excluding, for the avoidance of doubt, any commercialization of any of the Subscription Items through licenses to third parties or otherwise."Parties"/”Party” has the meaning set out in the introduction.
"Reseller" has the meaning set out in the introduction of this EULA.
"Subscription" means the right to access and use CDF, Cognite Applications, or other Cognite Technology as software-as-a-service on subscription basis and in accordance with the terms and conditions of the Subscription Agreement.
"Subscription Agreement" means an agreement made between the Reseller and an End-Customer setting out the terms and conditions of the End-Customer's Subscription (which shall include information about this EULA), including any amendments.
"Subscription Item" means individual components included in the Subscription, which may be for the avoidance of doubt include CDF, CDF API, Extractors, Cognite Development Accelerators, any Applications and/or Cognite Applications owned by Cognite or its licensors, or other Cognite Technology, but only to the extent included in the Subscription.
"Subscription Period" means the period set out in the Subscription Agreement.
"Territory" means the geographically restricted area set out in the Subscription Agreement.
"Term" has the meaning set out in Section 11.1