LAST REVIEWED AND UPDATED APRIL 23, 2021
Cognite and the Reseller entered into this License and Reseller Agreement on the Effective Date. Capitalized terms used in this Agreement shall have the same meaning as set out in the Agreement Form, or as set out in Section 14.
1.1.1 Subject to the terms and conditions of this Agreement and the Reseller's compliance with its obligations herein, Cognite hereby grants to the Reseller for the duration of the Term:
(a) a non-exclusive, payable, non-sublicensable license to resell Subscriptions to CDF to End-Customers within the Territory (the "CDF License");
(b) a non-exclusive, payable, non-sublicensable license to resell Subscriptions to Cognite Applications to End-Customers within the Territory (the "Cognite Application License");
(c) a non-exclusive, payable, non-sublicensable license to use CDF and Cognite Applications for testing CDF and Cognite Applications, and to develop New Joint Products and New Reseller Products utilizing CDF and Cognite Applications (the "User License"); and
(d) a non-exclusive, fully-paid, royalty-free, non-sublicensable license to use the Cognite Trademarks in relation to the CDF License, Cognite Application License, and User License (the "Cognite Trademark License"),
collectively referred to as the "Reseller's License".
1.2.1 Cognite shall provide to the Reseller such services as reasonably required to enable the Reseller to resell Subscriptions and for the Reseller to provide associated services to End-Customers during the Term, pursuant to the Cognite SaaS SLA (available at https://content.cognite.com/cognite-saas-service-level-agreement-sla), as amended from time to time. If the Reseller resells Subscriptions to End-Customers offering Services to the End-Customers identical to the Cognite SaaS SLA, then the Cognite SaaS SLA shall apply mutatis mutandis between Cognite and the Reseller.
1.3.1 The Reseller shall procure that the End-Customers' use of any Subscription shall be restricted to (i) the End-Customers' Normal Business Activities in the Territory and (ii) the End-Customers' own use only (which for the sake of clarity shall not include use by any Person other than the Person identified as the End-Customer).
1.3.2 This Agreement does not grant the Reseller any right or license to the Cognite Technology, other than the Reseller's License. In particular, but without limiting the generality of the foregoing, no right in or license or access to the source code of any Cognite Technology is granted hereunder.
1.3.3 The Reseller shall not, and shall procure that its End-Customers shall not:
(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 any Cognite Technology; or
(b) prepare, or permit any other Person to prepare, any derivative of any Cognite Technology, or reproduce, distribute, sell, or resell any Cognite Technology in any manner or for any purpose except as specifically permitted under this Agreement.
1.3.4 The Reseller shall not and shall procure that its End-Customers shall not, remove any proprietary notices in any of the Cognite Technology or any associated documentation.
1.3.5 The Reseller shall not and shall procure that its End-Customers shall not, use Confidential Information received from Cognite to design, specify, develop, integrate, market, license, distribute, or host any products that are competitive with any of the Cognite Technology.
2.1.1 The Reseller shall use Commercially Reasonable Efforts to Resell CDF and Cognite Applications to End-Customers in the Territory during the Term.
2.1.2 All marketing and sales materials related to CDF or Cognite Applications not provided by Cognite or consisting of content equivalent to such approved material, shall be submitted to Cognite in English for Cognite's review and approval. Such approval by Cognite shall not be unreasonably withheld or delayed.
2.1.3 The Reseller shall act in its own name and for its own account. The Reseller shall not act or purport to act in the name of or on behalf of or as an agent of Cognite.
2.2.1 Unless otherwise explicitly agreed between the Parties in writing, the Reseller shall only Resell access to CDF and Cognite Applications in the form of Subscriptions.
2.2.2 Prior to entering into a Subscription Agreement with an End-Customer for a Subscription, the parties shall execute the order form available here (the "Reseller Order Form").
2.2.3 If the End-Customer as part of its Subscription Agreement with the Reseller shall transfer personal data to an entity in the European Union and/or the European Economic Area for processing, then Cognite's standard Data Processing Agreement shall apply for such data transfer and data processing (available at https://content.cognite.com/data-processing-agreement), as amended from time to time.
2.2.4 For information purposes only, Cognite is willing to grant a license to use CDF and one or more of the Cognite Applications to the Reseller's End-Customers provided that the End-Customer accepts the EULA. The End-Customer shall be required to accept the terms and conditions of the EULA by "click-through" the first time the End-Customer accesses the Subscription Items.
2.2.5 The Reseller shall notify Cognite immediately of any known or suspected breach of any Subscription Agreement or any unauthorized use of the Cognite Technology. The Reseller shall assist Cognite in the enforcement of the terms of the EULA.
2.3.1 As of the Effective Date, the Parties shall establish a joint collaboration committee (the "Committee"). The objective of the Committee is to discuss the best way of utilizing CDF and Cognite Applications to improve the Reseller's solutions for its customers in the Territory, and to explore mutually beneficial market and marketing opportunities through collaboration under this Agreement.
2.3.2 The Committee shall be composed of two (2) representatives from each Party, unless another number is agreed in writing. Each Party shall promptly notify the other Party in writing of any change in its appointed representatives. The Committee shall elect a chairperson.
2.3.3 To accomplish its objective, the Committee shall meet every second quarter, or more often if mutually agreed by the Parties. The Committee may meet in person or by telephone or video conference. Each Party shall bear all expenses of its personnel arising from attending such meetings.
3.1.1 The Reseller shall pay to Cognite the fees and costs set out in the Agreement Form. Cognite reserves the right to update (including to increase or decrease) the fees at its sole discretion at any time, upon ninety (90) days prior written notice to the Reseller.
3.2.1 Cognite shall invoice the Reseller in accordance with the billing cycle and payment terms set out in the Agreement Form.
3.2.2 If the Reseller fails to make payment of any amount within the stipulated time, Cognite may, without prejudice to any other remedies available to Cognite under this Agreement or at law, (i) claim simple interest at the rate of 9.5% per annum in respect of such unpaid amount and (ii) suspend performance of its obligations under this Agreement for as long as the amount remains outstanding.
3.3.1 Unless otherwise explicitly agreed in this Agreement, all fees and payments shall be exclusive of all taxes imposed by any domestic or foreign taxing authority such as applicable value-added, sales, use, excise, customs duties or other taxes, consumption, access, other tax, fees, or surcharges (including, but not limited to regulatory fees or surcharges) (“Taxes”). In the event that payment of any amount from the Reseller to Cognite becomes subject to withholding tax, levy, or similar payment obligation on sums due to Cognite under this Agreement such withholding tax amounts shall be borne and paid for by the Reseller in addition to the fees due to Cognite. The Reseller shall provide Cognite free of charge with the appropriate certificate(s) from the relevant authorities confirming the amount of the withholding taxes, levies, or similar payments borne and paid for by the Reseller.
4.1.1 Each Party is, and shall remain, the sole and exclusive owner of all right, title, and interest in and to its Background IPR, and neither Party shall acquire any rights to the other Party's Background IPR except as explicitly stated in this Agreement.
4.1.2 The Parties' ownership and rights to Improvements and New Products are governed by the following provisions of this Section 4.
4.2.1 If the Reseller identifies potential Improvements which could be made to CDF or Cognite Applications, it shall notify Cognite and the Parties shall in good faith negotiate a Technology Development Agreement in respect of such Improvements.
4.2.2 Unless otherwise explicitly agreed in the relevant Technology Development Agreement entered into pursuant to Section 4.2.1, Cognite shall be, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all Improvements and any IPR relating thereto.
4.2.3 All Improvements to CDF shall be included in the Reseller's CDF License with effect from the date on which such Improvements are released by Cognite. Such Improvements shall from that date constitute part of the CDF, and any IPR relating to such Improvements shall constitute part of Cognite's Background IPR.
4.2.4 All Improvements to Cognite Applications shall be included in the Reseller's Cognite Applications License with effect from the date on which such Improvements are released by Cognite. Such Improvements shall from that date constitute part of the Cognite Applications, and any IPR relating to such Improvements shall constitute part of Cognite's Background IPR.
4.2.5 For the avoidance of doubt, the fees payable in respect of the Reseller's CDF License and the Reseller's Cognite Applications License shall not change as a result of the inclusion of Improvements pursuant to Sections 4.2.3 or Section 4.2.4.
4.3.1 Any development by the Parties of New Joint Products shall be undertaken in accordance with the terms and conditions of a Technology Development Agreement, which shall be entered into between the Parties before the Parties commence such development.
4.3.2 Unless otherwise explicitly agreed in the Technology Development Agreement, any New Joint Products and IPR relating thereto shall be, and shall remain, jointly owned by the Parties with equal ownership interests.
4.3.3 Unless otherwise explicitly agreed in the Technology Development Agreement, Cognite shall have the exclusive right and license to use and commercialize any New Joint Product outside the Territory, and the Reseller shall have the exclusive right and license to use and commercialize such New Joint Product in the Territory. The foregoing exclusive rights and licenses shall be irrevocable and perpetual and neither Party shall have any obligation to make any payment to the other Party for its use or commercialization of such New Joint Products.
4.4.1 The Reseller shall be, and shall remain, the sole and exclusive owner of all right, title, and interest in and to any New Reseller Products and any IPR relating thereto.
4.4.2 The Reseller shall offer Cognite to take a license for use and commercialization of any New Reseller Products, excluding New Reseller Products that are developed by or on behalf of the Reseller for the exclusive use of a third party. This license offer shall be made on commercially reasonable terms and, if applicable, substantially similar to this Agreement.
4.4.3 Cognite shall exercise its option to license each such New Reseller Product by submitting a written notice to the Reseller.
4.4.4 If Cognite exercises its option in accordance with Section 4.4.3, the Reseller shall grant Cognite a license in a separate license and technology agreement to be entered into between the Parties in accordance with Section 4.4.2 last sentence.
4.5.1 Cognite shall take all reasonable steps to prosecute, maintain, enforce, and defend Cognite's Background IPR in the Territory, to the extent necessary to protect the value of the Reseller's License during the Term.
4.5.2 The Parties shall agree on prosecution, maintenance, enforcement, and defense of any IPR related to New Joint Products in the Technology Development Agreement to be entered into as set out in Section 4.3. Unless explicitly agreed in the Technology Development Agreement, Cognite shall have the exclusive right to prosecute, maintain, enforce, and defend IRP relating to New Joint Products outside the Territory and the Reseller shall have the exclusive right to prosecute, maintain, enforce, and defend IRP relating to New Joint Products in the Territory.
4.5.3 The Parties shall in good faith assist and inform each other of any third party claim or other event relevant for either Party's right to prosecute, maintain, enforce, and defend IPR in accordance with this Section 4.5.
4.6.1 Cognite shall procure that Cognite and any employee, consultant, and other Person, and the Reseller shall procure that the Reseller and any employee, consultant, and other Person, that contributes or may contribute or otherwise make any intellectual contribution to the development of any Improvement or New Product, or any IPR associated with either of these, shall assign any and all right, title, and interest in and to such IPR to the relevant Party. In furtherance of the foregoing, and during the Term, each Party shall itself, and undertakes to cause all such employees, consultants, and other Persons to, enter into any written agreements, and sign and execute any documents, necessary to fully effect the assignments contemplated by this Section 4.6.1.
5.1.1 All Confidential Information exchanged or otherwise transferred between the Parties shall be treated as confidential, shall be handled securely and shall be stored in locked files. Electronically stored Confidential Information shall be inaccessible to unauthorized personnel. For the avoidance of doubt but without limitation, each Party shall, except as otherwise set out herein, treat the content of this Agreement (but not its existence), prices, technology, source code, IPR, and technical information as Confidential Information and use or disclose it only in accordance with this Section 5. Each Party shall, if requested, notify the other Party in writing of the names of its personnel authorized to receive Confidential Information. For the avoidance of doubt, Cognite Technology shall be deemed Cognite's Confidential Information, regardless of any contributions from the Reseller.
5.1.2 Confidential Information shall not be disclosed by the receiving Party to any third party without the prior written consent of the disclosing Party or used for any other purpose than for which it was disclosed 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 the default 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 law, governmental, or other public authority regulation or decision, or ordered by a court of law.
5.1.3 Where the circumstances set out in Section 5.1.2(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 Commercially Reasonable Efforts to obtain reasonable assurances that confidential treatment will be accorded such Confidential Information.
5.1.4 Each Party may, however, use or disclose Confidential Information to a third party, to the extent necessary for the performance of that Party's obligations under this Agreement, provided that such Party shall procure that such third party is bound by confidentiality obligations no less onerous than those set out in this Section 5.
5.1.5 At any time, upon the disclosing Party’s reasonable request, the receiving Party shall promptly return to the disclosing Party or destroy, at the disclosing Party’s option, any Confidential Information.
5.1.6 This obligation to observe confidentiality shall continue ten (10) years after the termination of this Agreement.
6.1.1 Each Party hereby makes to the other Party the following representations and warranties as of the Effective Date:
(a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized;
(b) it has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder, and the execution and delivery of this Agreement and the performance thereof have been duly authorized, executed, and delivered by all necessary corporate action;
(c) neither the execution and delivery of this Agreement nor the performance hereof will violate, conflict with, or result in a breach of any applicable law or provision of such Party’s organizational documents or any agreement, document or instrument to which it is subject or by which it or its assets are bound or require the consent or approval (if not already obtained) of any shareholder, partner, equity holder, holder of indebtedness, or other Person or entity, or contravene or result in a breach of or default under or the creation of any lien, charge, or encumbrance upon any property under any constitutive document, indenture, mortgage, loan agreement, lease, or other agreement, document, or instrument to which such Party is a party; and
(d) any authorizations and exemptions required to obtained from any actions or approvals by, and any required notices to or filings with, any governmental authority in connection with the execution and delivery of this Agreement or the performance by the Party of its obligations hereunder have been obtained or made and are in full force and effect, and all conditions of any such authorizations, exemptions, actions, or approvals have been complied with.
6.1.2 Cognite hereby represents and warrants to the Reseller that Cognite as of the Effective Date has full and unencumbered rights, title, and interest to grant to the Reseller the Reseller's License.
7.1.1 Cognite shall indemnify the Reseller, 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, 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 normal use of the Reseller's License infringes such third party's IPR, provided that Cognite is given prompt notice and control of such claim, that the Reseller does not prejudice Cognite's defense of such claim, that the Reseller gives Cognite all reasonable assistance in connection with such claim at Cognite’s expense, and that the claim does not arise as a result of the use of CDF or Cognite Applications otherwise than in accordance with Cognite’s direction or written operating instructions, the terms of this Agreement, or a Subscription Agreement. The foregoing states the entire liability of Cognite to the Reseller of the infringement of IPR of any third party.
7.2.1 The Reseller 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 (including any End-Customer) arising out of or in connection with the Reseller's or any End-Customers' use of CDF, Cognite Applications, and any other part of the Reseller's License, except for claims as set out in Section 7.1.
7.2.2 The Reseller 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 End-Customer directed directly against Cognite in violation of the EULA.
7.3.1 In no event shall any Party be liable under or in connection with this Agreement, whether in tort, contract, or otherwise, for loss of profit, special, indirect, consequential, exemplary, incidental, or punitive damages or losses.
7.3.2 The aggregated and total liability of each Party arising out of or related to this Agreement shall not exceed the total amount paid by the Reseller to Cognite under this 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.
7.3.3 The aggregated and total liability of each Party arising out of or related to a Subscription Agreement shall not exceed 50% of the total amount paid by the Reseller to Cognite related to the Subscription 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.
7.3.4 The limitations of liability set out in Section 7.3.1 through Section 7.3.3 shall not apply in relation to a Party's breach of Section 1.3, Section 4.6, Section 5, Section 6, Section 7.1, Section 7.2, or Section 9.2, or in the case of gross negligence or willful misconduct by the Senior Officer of Cognite or the Reseller.
8.1.1 This Agreement enters into force on the Effective Date and continues until the end of the Term, whereby this Agreement terminates automatically, unless terminated earlier as allowed for under this Agreement.
8.1.2 By written agreement between the Parties, this Agreement may be renewed in its current or renegotiated format.
8.1.3 Cognite shall have no obligation to renew or extend the Term of this Agreement, and no payments, liabilities, or damages shall be due to the Reseller, or shall be imposed upon Cognite, for its decision not to renew this Agreement.
8.2.1 Each Party may terminate this Agreement, including all licenses granted herein, by thirty (30) days’ prior written notice to the other Party in the following circumstances:
(a) the other Party becomes insolvent or enters into insolvency or bankruptcy proceedings; or
(b) upon the material failure of the other Party to observe, keep, or perform any of the covenants, terms, or conditions herein (including the failure to pay sums owed to the other Party when due), if such default continues for sixty (60) days after written notice by the other Party with reference to this Section 8.2.
8.2.2 Notwithstanding Section 8.2.1, Cognite shall have the right to terminate this Agreement immediately upon the material failure of the Reseller 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) Cognite Technology.
8.3.1 Notwithstanding the foregoing provisions in Section 8.2, the termination of this Agreement shall not affect the validity or content of any Subscription Agreements entered into before a notice of termination as set out in Section 8.2.1 has been issued, and the Reseller may on the terms and conditions of this Agreement continue Subscriptions thereunder after the termination of this Agreement, provided however that the Reseller shall terminate any Subscription as soon as permitted under the Subscription Agreement and no later than three (3) years from the notice of termination as set out in Section 8.2.1 has been issued, or transfer the Subscription from the Reseller to Cognite, provided that Cognite and the End-Customer has consented to such transfer.
8.3.2 The Reseller shall not Resell nor extend any Subscription nor in any other way distribute CDF, Cognite Applications, or any other Cognite Technology to existing or potential End-Customers after this Agreement has been terminated, provided however that this is without prejudice to Section 8.3.1.
9.1.1 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 (available at https://f.hubspotusercontent10.net/hubfs/6407318/Code%20Of%20Conduct.pdf) and Supplier Declaration (available at https://content.cognite.com/cognite-supplier-declaration).
9.2.1 The Cognite Technology may be subject to export laws and regulations of the United States and other jurisdictions. Cognite and the Reseller each represents that it is not included on any U.S. government denied-party list. The Reseller will not permit any End-Customer to access or use any Cognite Technology in a United States' embargoed country or region or in violation of any United State export laws or regulations.
9.3.1 Each Party shall comply, and cause its personnel, agents, and subcontractors to comply, during the Term, with applicable anti-bribery and anti-money laundering laws, regulations, rules, or requirements in connection with the performance of this Agreement including the United Kingdom Bribery Act 2011, the relevant legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the US Foreign Corrupt Practices Act 1977 (the “Anti-Corruption Legislation”), and to refrain from engaging in acts or transactions in violation of or inconsistent therewith. Any breach or violation of this Section 9.3.1 shall be deemed a material breach of this Agreement.
9.3.2 Each Party shall not, and shall cause its personnel, agents, and subcontractors not to, during the Term, in connection with this Agreement:
(a) offer, pay, promise to pay, or authorize the giving of money or things of value to a government official (including, but not limited to employees of a governmental oil company), to any officer or employee of a public international organization, to any political party or official thereof, or to any candidate for political office, to any person, while knowing or being aware of a high probability that all or a portion of such money or thing of value will be for the purpose of (i) influencing any act or decision of such official, officer, employee, political party, party official, or candidate in their official capacity, including a decision to fail to perform their official functions or (ii) inducing such official, officer, employee, political party, or candidate to use their influence with the government or instrumentality or organization to affect or influence any act or decision of such government or instrumentality or organization, or to obtain an improper advantage in order to assist either Party in obtaining or retaining business for or with, or directing business to either Party or any other person in relation to this Agreement;
(b) make any contribution, gift, or other incentive, directly or indirectly, to any political party or candidate in connection with any election campaign for any government office, unless such contribution is lawful in the country where it was made and does not contravene the Anti-Corruption Legislation;
(c) make any payment, gift, commission, fee, rebate, or other incentive for the benefit of any supplier, customer, government or public official, or other business associate of either Party which could reasonably be interpreted as being for the purpose of improperly influencing, inducing facilitating a business or administrative decision of such supplier, customer, government or public official, or other business associate; and
(d) pay any commissions, fees, or grant any rebates or incentives to any employee or officer of either Party or of any subcontractor, or favor said persons with gifts, bribes, or entertainment of significant or substantial value, or enter into any business arrangements with employees or officers of either Party other than with authorized representatives of either Party who are acting on behalf of such Party. Each Party shall report in writing to the other Party any solicitation of commissions, fees, or rebates received in connection with this Agreement.
9.3.3 All financial settlements, invoices, and reports rendered to the other Party as provided for in this Agreement shall reflect properly the facts about all activities and transactions handled for the account of the other Party. Such financial settlements, invoices, and reports shall be complete and accurate.
10.1.1 If a Party fails to comply with its obligations pursuant to this Agreement, then such Party is in breach, unless the reason for such Party being in breach is attributed to the other Party.
10.2.1 The Party claiming that the other Party is in breach of any obligation under this Agreement, shall give written notice of the claim without undue delay after the breach has been discovered or should have been discovered. For the avoidance of doubt, both Parties shall be granted reasonable time for communication with the End-Customer, if necessary, prior to giving written notice.
10.3.1 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 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.
10.3.2 Each Party shall keep each other fully informed of the actual and any expected effects of any Force Majeure, of the steps the Party is taking to mitigate the effects of the Force Majeure, and the expected duration of the Force Majeure event.
10.3.3 Where a Force Majeure has occurred, the other Party may only terminate this Agreement (i) with the consent of the affected Party, or (ii) if the Force Majeure lasts or is expected to last for more than ninety (90) calendar days from the date on which the situation arose, and in such case only with fifteen (15) calendar days’ notice. Each of the Parties shall cover their own costs associated with ending this Agreement. Neither Party shall be entitled to bring a claim against the other as a consequence of the termination of this Agreement in accordance with this provision.
10.4.1 On any breach by a Party, the breaching Party shall rectify the error in such a way that the fulfilment of the obligation once again corresponds to the requirements set out in this Agreement. The error shall be rectified within reasonable time.
11.1.1 Any dispute arising out of or in connection with this 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 Agreement with the Reseller.
11.2.1 If at any time a dispute, controversy, or claim arising out of or in connection with this Agreement, 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 Agreement or otherwise (whether in contract, in tort, or based on statute or regulation) shall arise, then either Party may 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 endeavor in good faith to resolve such dispute, controversy, or claim amicably within sixty (60) days from the date of such notice (or such longer period as the Parties may agree).
11.2.2 Disputes, controversies, or claims among the Parties that remain unresolved at the expiration of the period specified in Section 11.2.1 may be referred by either Party to and shall finally and exclusively be settled by arbitration. The seat of arbitration shall follow the Cognite entity that entered into the Agreement with the Reseller in accordance with the table below.
11.2.3 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.
12.1.1 Cognite shall have the right, to the extent legally permissible, to review the Reseller’s books and records, including in relation to compliance matters and the right to audit, examine, or make copies of any documentation or electronic information relating to the operations, records, reports, and supporting documents of the Reseller. Annual audits, if requested by Cognite, will be performed by an independent auditor of international repute, but, unless otherwise agreed by the Parties, the auditor shall not be the external auditor for either Party.
12.1.2 The Reseller shall prepare its financial statements (including its consolidated financial statements if applicable), and procure that these will be reviewed and audited, in accordance with International Financial Reporting Standards (IFRS).
12.1.3 Cognite's audit rights pursuant to this Section 12.1 shall remain for ten (10) years after the termination of this Agreement.
12.2.1 The Cognite entity entering into this Agreement, and the contact details to which the Reseller shall direct notices under this Agreement, are set out in the Agreement Form. All notice under this Agreement shall be made via email and delivered to such contact persons.
12.2.2 Any changes of contact persons or addresses shall be notified to the other Party immediately and at the latest two weeks prior to such change taking place.
12.3.1 This Agreement constitutes the entire agreement and understanding between the Parties in respect of the subject matter contained herein and there are no restrictions, promises, representations, warranties, covenants, or undertakings with respect to the subject matter hereof, other than those expressly set forth or referred to herein. This Agreement supersedes any and all prior agreements and understandings between the Parties with respect to the subject matter hereof.
12.4.1 If and to the extent that any provision of this 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 Agreement but without invalidating any of the remaining provisions of this Agreement. The Parties shall use all reasonable endeavors to replace the inconsistent or invalid or unenforceable provisions with a consistent, valid and enforceable substitute provision, the effect of which is as close as possible to the intended effect of the inconsistent, invalid or unenforceable provision.
12.5.1 No amendment of this Agreement shall be valid unless executed in writing by each Party. Unless expressly agreed, no amendment shall constitute a general waiver of any provisions of this Agreement, nor shall it affect any rights, obligations, or liabilities under or pursuant to this Agreement which have already accrued up to the date of such amendment, and the rights and obligations of the Parties under or pursuant to this Agreement shall remain in full force and effect, except and only to the extent that they are so amended.
12.6.1 To the extent permitted by applicable law, Cognite may assign this Agreement. The Reseller shall not assign this Agreement, unless agreed between the Parties in writing.
12.7.1 It is expressly agreed that it is not the purpose or intention of this Agreement to, and nothing in this 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 liability of the Parties hereunder shall be several and not joint or collective and each Party shall be responsible only for its individual obligations hereunder.
12.8.1 This Agreement is exclusively for the benefit of the Parties and shall not be construed as conferring, either directly or indirectly, any rights or causes of action upon third parties.
12.9.1 This Agreement may be executed in one or more counterparts, each of which shall be an original, but all such counterparts shall together constitute one and the same instrument.
12.10.1 This Agreement and all related documents, instruments, and other materials relating hereto, and all dispute resolution proceedings and documents relating thereto, shall be in the English language.
The terms and conditions of this Agreement are set out in the following documents:
In case of conflict between the documents (a) – (c) above, the documents shall prevail in the order they are listed.
In this Agreement:
"ABC" means anti-bribery and corruption.
"Agreement" means this License and Reseller Agreement, the Agreement Form, any Agreement Form Amendments and executed Reseller Order Form(s).
"Agreement Form" means the document signed by Cognite and the Reseller that confirms that the Parties have entered into a collaboration under which the Reseller shall resell Subscriptions in the Territory.
"Applications" means software which utilizes CDF via the CDF API.
"Background IPR" means any IPR existing, conceived, created, developed, or reduced to practice prior to the Effective Date.
"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 Customer can use to utilize CDF.
"Cognite" has the meaning set out in the Agreement Form.
"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 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.
"Cognite Trademarks" means any registered trademark, logo, or design held by Cognite during the Term, unless otherwise notified by Cognite to the Reseller.
"Commercially Reasonable Efforts" means those efforts, and the application and expenditure of resources, applied and expended in a manner consistent with the exercise of prudent business judgment and business practices, as are customary for similarly situated companies in the software industry with respect to services and products that have commercial potential similar to the Cognite Technology.
"Confidential Information" means all information, whether in a tangible or intangible form, and whether or not designated as proprietary or confidential, of a proprietary or confidential nature disclosed by one Party or its representatives to the other Party in connection with this Agreement, 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. 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" means Cognite's standard data and/or sub-data processing agreement (available at https://content.cognite.com/en/legal/data-processing-agreement), whichever is relevant, as amended from time to time.
"Effective Date" has the meaning set out in the Agreement Form.
"End-Customer" means any Person with its principal business located in the Territory entering into a Subscription Agreement with the Reseller.
"End-Customers' 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 (including resale and sublicensing) of any of the Subscription Items through licenses to third parties or otherwise.
"EULA" means Cognite's standard end-user license agreement (available at https://content.cognite.com/en/legal/end-user-license-agreement-eula), as amended from time to time.
"Extractors" means software made available to the End-Customer in the form of executable code for on-premises installation for use to extract customer data and send customer data to CDF.
"Improvements" means any and all modifications, improvements, or further developments of CDF and Cognite Applications.
"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.
"New Joint Products" means any result of technology development made jointly by Cognite and the Reseller after the Effective Date as set out in Section 4.3, but excluding any Improvements to CDF and Cognite Applications as set out in Section 4.2.
"New Products" means New Joint Products, and New Reseller Products.
"New Reseller Products" means any result of technology development made solely by the Reseller after the Effective Date as set out in Section 4.4.
"Parties"/”Party” has the meaning set out in the Agreement Form.
"Person" means any individual, corporation, joint stock company, limited liability company, partnership, joint venture, association, trust, unincorporated organization, government, governmental agency, authority, institution, or ministry, or other entity.
"Resell" means advertise, make known in the market, promote, demonstrate, and offer for sale to potential End-Customers and End-Customers, and enter into or amend Subscription Agreements for the purpose of establishing or expanding Subscriptions, and “Reselling”, “Resold”, and other cognates shall be construed accordingly.
"Reseller" has the meaning set out in the Agreement Form.
"Senior Officer" means the Chief Executive Officer, the Chief Finance Officer, and the Chief Legal Officer.
"Subscription(s)" means the right to access and use CDF and Cognite Applications as software-as-a-service on subscription basis and in accordance with the terms and conditions of a Subscription Agreement.
"Subscription Agreement" means an agreement between the Reseller and an End-Customer within the Territory for a subscription to CDF and (if applicable) one or more Cognite Applications.
"Subscription Items" means individual components included in a Subscription, which for the avoidance of doubt may include CDF, CDF API, the Extractors, Cognite Development Accelerators, or any Applications and/or Cognite Applications owned by Cognite or its licensors.
"Technology Development Agreement" means one or more agreements entered into in relation to any technology development as set out in Section 4.
"Term" has the meaning set out in the Agreement Form.
"Territory" has the meaning set out in the Agreement Form.
14.2.1 In this Agreement, unless the context otherwise requires:
(a) words importing the singular also include the plural and references to one gender include all genders;
(b) the table of contents and headings in this Agreement are inserted for convenience only and do not affect the construction of this Agreement and shall not be taken into consideration in its interpretation;
(c) all references to the Recitals, Sections, and Schedules are references to the recitals, sections, and schedules of this Agreement and not to those in any other document attached or incorporated by them. In case of any discrepancy or inconsistency between any Sections, the Recitals, and Schedules of this Agreement, the Sections shall prevail;
(d) the Schedules form part of this Agreement and reference to this Agreement shall include such Schedules;
(e) the words “include”, “includes”, and “including” shall be deemed to be followed by the phrase “without limitation”;
(f) the word “or” is not exclusive;
(g) references to any agreement or contract, including this Agreement, shall be interpreted to mean such agreement or contract, as amended, supplemented, restated, or otherwise modified in accordance with its terms from time to time;
(h) if a period of time is specified as from a given day, or from the day of an act or event, it shall be calculated inclusive of that day;
(i) references to years, quarters, months, days, and the passage of time shall be construed in accordance with the Gregorian calendar;
(j) references to any governmental entity or any governmental agency, department, commission, board, bureau, agency, regulatory authority, instrumentality, ministry, or judicial or administrative body, in any jurisdiction, shall include any successor to such entity; and
(k) a reference to a Party or to any other Person includes a reference to its successors and permitted transferees and assigns.
