End User License Agreement ("EULA")

LAST REVIEWED AND UPDATED JUNE 16, 2022

You (also referred to as the “End-Customer”) have entered into an agreement for the direct or indirect access to or use of certain Cognite Technology (the “Subscription”), with a reseller, partner or other third party offering such access and use in accordance with a license from Cognite (the “Reseller”). All access and use of Cognite Technology are subject to the terms and conditions set out in this EULA, in addition to the terms and conditions of the separate agreement between the End-Customer and the Reseller (the “Subscription Agreement”).

By accessing the Cognite Technology, you agree to the terms and conditions of the EULA. If you do not accept all the terms and conditions of this EULA, you are not entitled to use any of the Cognite Technology. This EULA constitutes a legally enforceable agreement between you and Cognite.

Defined terms used in this EULA are set out in Section 16.

1. GRANT AND USE

1.1 License to use Cognite Technology

The End-Customer’s right to access and/or use certain Cognite Technology is set out in the Subscription Agreement with the Reseller. Such right to access or use the Cognite Technology shall in any event be non-exclusive, time-limited and revocable.

Notwithstanding anything to the contrary herein, this EULA shall not be construed to extend the licenses granted to End-Customer pursuant to the Subscription Agreement with the Reseller.

1.2 Restrictions

The End-Customer's use of the Cognite Technology shall be restricted to 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, except for End-Customer’s service providers’ access and use on the terms herein and solely for their provision of services to the End-Customer).  End-Customer remains liable for its’ service providers’ acts and omissions as for its own.

The End-Customer shall not, directly or indirectly, sublicense or transfer its rights to access and use the Cognite Technology. The End-Customer shall not make access to the Cognite Technology 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 Cognite Technology, 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:

  1. modify, alter, adapt, translate, reverse-engineer, decompile, disassemble or attempt to discover the source code, underlying ideas, algorithms, file formats or programming interfaces of any Cognite Technology in any way;
  2. prepare any derivative works of the Cognite Technology, or reproduce, distribute, sell, or resell any Cognite Technology in any manner or for any purpose
  3. directly or indirectly, use the Cognite Technology or such information disclosed by Cognite or the Reseller, or gained by the End-Customer from the Cognite Technology to design, specify, develop, integrate, market, license, distribute, train, improve or host any competing products or services to the Cognite Technology, or disclose any such information to any third party. 

In addition to any other available remedies, Cognite may immediately suspend End-Customer's access to the Cognite Technology based on any suspected violation of Section 1.2c), and such violation shall be deemed a violation of Cognite’s IPR. End-Customer shall provide Cognite with any assistance reasonably requested by Cognite to confirm compliance with Section 1.2 c).

1.3 Open source software and Cognite Development Accelerators

The Cognite Technology 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 can be provided to End-Customer by Reseller on request.

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 other webpage Cognite may publish and make available to the Customer). Cognite shall not be liable for any Cognite Development Accelerators.

2. ACCEPTABLE USE

The End-Customer shall be responsible for its conduct, End-Customer Data, and communications with others while using the Cognite Technology. The End-Customer shall comply with the following requirements when using the Cognite Technology:

  1. The End-Customer shall use the Cognite Technology in compliance with, and only as permitted by, Applicable Laws , and shall under no circumstances use the Cognite Technology to violate human rights law.
  2. The End-Customer shall not misuse the Cognite Technology 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.
  3. The End-Customer shall not circumvent or attempt to circumvent any limitations that Cognite or the Reseller imposes on the End-Customer's account.
  4. Unless authorized by Cognite in writing via the Reseller, the End-Customer shall not probe, scan, or test the vulnerability of the Cognite Technology or any other system, network, or component used for providing the Cognite Technology.
  5. The End-Customer shall not engage in abusive usage of the Cognite Technology, which involves improper or illegal use that may cause harm to the Cognite Technology or third parties. The End-Customer shall not engage in usage in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Cognite Technology for other users. Cognite will via the Reseller endeavor to notify and assist the End-Customer to remedy such abusive or excessive usage.
  6. Should the Cognite Technology run on Google Cloud Platform or Microsoft Azure, use of the Cognite Technology shall at all times be subject to the most current Google Cloud Platform Acceptable Use Policy (available here) or most current Microsoft Terms of Use (available here), as applicable. 

3. EXTRACTORS AND ACCOUNT MANAGEMENT

If the Reseller makes 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.

If End-Customer as part of receiving the Cognite Technology, has access to an admin console and an account used to administer the Cognite Technology, 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.

4. MODIFICATION OF THE COGNITE TECHNOLOGY

For the avoidance of doubt, Cognite is entitled to make commercially reasonable changes to the Cognite Technology from time to time.

5. SUPPORT

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/en/legal/cognite-saas-service-level-agreement-sla?hsLang=en, as amended from time to time).

The Cognite SaaS SLA shall not apply to Extractors and Cognite Development Accelerators.

6. IPR, IMPROVEMENTS, AND END-CUSTOMER DATA

6.1 Ownership of the Cognite Technology

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 Cognite Technology.

6.2 Background IPR

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 are acquired under this EULA, unless expressly stated. For the avoidance of doubt and without limiting the generality of the foregoing, the Cognite Technology 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 its wholly-owned subsidiaries, and that the ultimate owner of such Background IPR is Cognite AS or its third party licensors.

6.3 Improvements

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.

6.4 Retained ownership to end-customer data

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 the Cognite 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 Cognite Technology (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.

6.5 Handling end-customer data

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, via the Reseller, 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.

6.6 Personal data

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/en/legal/data-processing-agreement?hsLang=en (as amended from time to time).

6.7 Backup

The End-Customer shall be responsible for maintaining, protecting, and making backups of all End-Customer Data sent to Cognite, directly or via the Reseller, including but not limited to CDF via any Extractors.

6.8 Infringements

If the Cognite Technology 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 Cognite Technology in question unavailable to the End-Customer.

7. CONFIDENTIALITY

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:

  1. is already known by rightful means to the receiving Party at the time the information was received;
  2. is or becomes part of the public domain other than through a fault of the receiving Party;
  3. is received from a third party without an obligation of confidentiality of which the receiving Party was or should have been aware;
  4. 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 Cognite Technology, 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 Cognite Technology 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 duly handle and protect the Confidential Information from unauthorized disclosure using at least a commercially reasonable degree of care.

This obligation to observe confidentiality shall continue for ten (10) years after the expiry or termination of the Subscription Agreement and this EULA.

8. NO WARRANTIES, LIABILITIES, OR REMEDIES OFFERED BY COGNITE

Any warranties, liability for damages, and remedies related to the Cognite Technology, 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 Cognite Technology 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 Cognite Technology and/or this EULA.

9. THE END-CUSTOMER'S LIABILITY TOWARD COGNITE FOR BREACH

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.

10. NO CONSEQUENTIAL LOSSES

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 Cognite Technology, whether in tort, contract, or otherwise for:

  1. special, indirect, consequential, exemplary, incidental, or punitive damages or losses; or
  2. 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.

11. TERM AND TERMINATION

11.1 Term

This EULA enters into force on the Effective Date and shall remain in force until the expiry or termination of the Subscription under the Subscription Agreement, unless terminated earlier in accordance with this EULA (the "Term").

11.2 Suspension and termination for breach

Cognite is entitled to suspend access to the Cognite Technology and/or terminate this EULA 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 suspend access to the Cognite Technology and/or terminate the EULA with immediate effect.

For the avoidance of doubt, any suspension of access to the Cognite Technology and termination of the EULA, is without liability to Cognite, and such suspension or termination do not release the End-Customer from any payment obligation under the Subscription Agreement with the Reseller, nor does it entitle the End-Customer to any refund.

11.4 Effect of termination

If the Subscription terminates or expires pursuant to this EULA or the Subscription Agreement with the Reseller, for whichever reason, End-Customer’s access to the Cognite Technology is suspended simultaneously.

12. COMPLIANCE WITH APPLICABLE LAWS

12.1 General

The End-Customer shall comply with any Applicable Laws of any authority having jurisdiction in general and in connection with this EULA and the Cognite Technology.

12.2 Health, security and environment, and anti-bribery

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 Cognite Technology, the End-Customer shall not for itself or anyone else, directly or indirectly:

  1. 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;
  2. request, receive, or accept an offer for an improper advantage in connection with the performance of a post, office, or commission;
  3. give or offer any improper advantage with the purpose of influencing the performance of a post, office, or commission; or
  4. request, receive, or accept an offer for an improper advantage with the purpose of influencing the performance of a post, office, or commission.

13. GOVERNING LAW AND DISPUTES

13.1 Governing law

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.

13.2 Dispute resolution

If at any time a dispute or claim arise out of or in connection with this EULA (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 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 or claim amicably.

Disputes 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 EULA, 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.

14. MISCELLANEOUS

14.1 Assignment prohibition

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.

14.2 Updates to the EULA

Cognite shall be entitled to update this EULA to reflect changes in Applicable Laws, modifications to the Cognite Technology, or for any other legitimate and reasonable reason.

15. STRUCTURE

The terms and conditions of the End User License Agreement are set out in the following documents:

  1. This EULA
  2. If applicable, the Cognite SaaS SLA
  3. If applicable, the Data Processing Agreement

In case of conflict between the documents referred to above, the documents shall prevail in the order they are listed.

16. DEFINITIONS

"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. 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, 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/en/legal/cognite-saas-service-level-agreement-sla, as amended from time to time.

"Cognite Technology" means CDF, Extractors, Cognite Development Accelerators, 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 Cognite Technology. The Confidential Information may be labelled as "confidential", "proprietary", or similar without this being an explicit requirement for protection as Confidential Information.

"Data Processing Agreement" has the meaning set out in Section 6.6.

"Effective Date" has the meaning set out in the Subscription Agreement with the Reseller.

"End-Customer" means you, the legal entity who has entered into a Subscription Agreement with a Reseller for a Subscription of certain Cognite Technology.

"End-Customer Data" means data received by Cognite from the End-Customer, or from a third party on behalf of End-Customer 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), and personal data, 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 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.

Party/Parties” mean the End-Customer and Cognite.

"Reseller" has the meaning set out in the introduction of this EULA.

"Subscription" means the right to access and use certain Cognite Technology pursuant to and in accordance with the terms and conditions of a 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.

"Term" has the meaning set out in Section 11.1