LAST REVIEWED AND UPDATED JUNE, 16, 2022
This Professional Services Agreement and the referenced Data Processing Agreement (the “PSA”) are an integrated part of the Service Order Form entered into between Cognite and the Customer (collectively referred to as the “Service Agreement”). Capitalized terms used in this PSA shall have the meaning as set out in the Service Order Form and in Section 14 below.
The Service Agreement is limited to professional services performed under each Service Order Form and does not convey any right to access and use any subscription or online services made available by Cognite, which are governed by one or more separate agreements.
1. DELIVERY, SIGNOFF, AND CHANGES
1.1 Delivery of the Professional Services
Cognite will provide the Professional Services in accordance with this PSA and the applicable Service Order Form and any Service Order Form Amendment.
Upon completion of each Solution and/or Consultancy Service in accordance with the Service Agreement, Cognite shall, as applicable: (i) provide the Customer with a copy of each delivered Solution; and (ii) upon Customer’s request, demonstrate its functionality to Customer.
1.2 Signoff of Solution and Consultancy Services
If the Parties, in the Service Order Form, have agreed that the Customer shall provide Cognite with a formal notice that a Solution and/or Consultancy Services have been provided to the Customer in accordance with the requirements set out in the Service Order Form ("Signoff"), the Customer shall provide Cognite with the Signoff in accordance with this Section 1.2 prior to the expiry of the corresponding Solution Period and/or Consultancy Services Period.
Customer shall provide Cognite with a Signoff for each Solution or Consultancy Services that are subject to Signoff. If Customer, in its reasonable and good faith judgment, determines that any provided Solution or Consultancy Services do not meet the requirements set out in the Service Order Form, Customer must notify Cognite in writing within 10 business days after Cognite's provision of the Solution or Consultancy Services, specifying the deficiencies in detail.
Cognite shall use commercially reasonable efforts to correct such deficiencies and redeliver the Solution or Consultancy Services to Customer as soon as practicable. Customer must promptly review and re-test the Solution or Consultancy Services against the requirements set out in the Service Order Form and detail any deficiencies to Cognite in writing within 10 business days after redelivery of the Solution or Consultancy Services. Failure to reject or accept a Solution or Consultancy Services, as set forth above, within 10 business days after the provision of the Solution or Consultancy Services to the Customer, shall be deemed as a Signoff.
If a Solution or any Consultancy Services fails to meet the requirements specified in the applicable Service Order Form after its second redelivery to Customer, and such failure is not attributable to Customer’s delay in or failure to comply with its obligations under the Service Agreement, the Customer may either, as its sole and exclusive remedy: (i) reject the Solution or Consultancy Services and return it to Cognite for further correction and redelivery in accordance with the process described above or (ii) terminate the relevant Solution or Consultancy Services in accordance with Section 9.2, as such failure shall be considered a material breach.
1.3 No Effect on Warranty Remedies
Signoff of a Solution or Consultancy Services shall not affect Customer’s rights or remedies under Section 8 below.
1.4 Changes to the Professional Services
If at any time during the Term the Customer wishes to change or extend the Professional Services beyond the scope defined in the Service Agreement and Cognite accepts such changes, such changes shall be defined in a Service Order Form Amendment, signed by an authorized representative of both Cognite and the Customer.
The Customer agrees that any change or extension of the Professional Services might result in changes of the estimated fee and/or require additional resources from Cognite subject to similar or different rates than agreed on in the Service Order Form.
Cognite shall cooperate with the Customer in good faith during the Term of the Service Agreement.
Cognite shall give priority to the Professional Services and shall allocate such resources as reasonably required to perform the Professional Services in a professional and prudent manner.
Cognite shall give notice to the Customer regarding circumstances that may affect the performance of the Professional Services, included but not limited to expected delays.
Cognite shall ensure that the employment of personnel performing the Professional Services is in accordance with Applicable Laws.
Cognite shall obtain and maintain, in due time, such approvals and permits as are necessary for the performance of the Professional Services.
Cognite shall ensure that all software and storage media used in the performance of the Professional Services is free of any malicious software.
3. CUSTOMER COOPERATION
The Customer shall contribute as set out in the Service Order Form or a Service Order Form Amendment, and otherwise as reasonably necessary and in good faith to enable Cognite to perform the Professional Services.
The Customer shall notify Cognite regarding circumstances the Customer ought to understand may affect the ability of Cognite to perform the Professional Services.
The Customer acknowledges that Cognite’s ability to perform the Professional Services depends on the Customer satisfactorily complying with its obligations under the Service Agreement. Should the Customer fail to perform its obligations in a timely manner, Cognite shall not be liable for any delay, loss or damage, cost increase or other consequences arising from such failure.
4. FEES AND PAYMENT
4.1 Fees for the Professional Services
For Professional Services performed under the Service Agreement, Customer shall pay fees to Cognite in accordance with the pricing and payment terms agreed in the Service Order Form. If no rates are specified in the Service Order Form, Cognite's standard rates in effect at the time the Service Order Form was issued, shall apply.
4.2 Fee basis
Cognite shall provide the Professional Services either (i) on basis of time (subject to either hourly or daily rates) and materials or (ii) on a fixed fee, in each case as specified for the Professional Services in the Service Order Form or a Service Order Form Amendment.
Any total amount set forth on the basis of time and materials shall be regarded as a good faith estimate only and shall not guarantee completion of the Professional Services at such amount. Upon request by the Customer, Cognite shall update the Customer on the fees accrued under the Service Agreement.
The Customer shall reimburse Cognite for travel and subsistence costs incurred in connection with the performance of the Professional Services, unless otherwise has been agreed in the Service Order Form.
Travel time shall be invoiced at 50% of the ordinary hourly rate. Estimates provided regarding travel and subsistence cost shall not be exceeded, unless accepted by the Customer in writing or if due to changes or extensions in the Professional Services ordered by the Customer.
4.4 Late payment interest
If the Customer fails to make any payment when due, then, without limiting Cognite’s remedies under Section 4.5 and Section 9, Cognite shall from the first day of delayed payment be entitled to interest on any overdue amount at 9,5% per annum in respect of such unpaid amount. Cognite shall not exercise its right under this Section 4.4 if the Customer is disputing the applicable payment obligation reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.5 Payment default
If overdue fees, with the addition of late payment interest, has not been paid within sixty (60) calendar days of the due date, Cognite may send the Customer a written notice stating that the Service Agreement shall terminate as a result of the Customer's breach, unless settlement has taken place within sixty (60) calendar days of receipt of the notice.
Such termination shall not take place if the Customer settles the overdue fee, with the addition of late payment interest, prior to the expiry of the sixty (60) days period.
4.6 Price increase
Cognite shall be entitled to adjust its rates each calendar year. In case of such price increase, the increase shall not exceed the increase in the Consumer Price Index from January of the previous year to January of the present year. The increase shall be applied on a cumulative, year-over-year basis beginning twelve (12) months after the Effective Date.
5. PERSONAL DATA
If Cognite processes personal data on behalf of the Customer in the performance of the Professional Services, the Customer acknowledges that Cognite's Data Processing Agreement shall apply for such data processing (available at: content.cognite.com/en/legal/data-processing-agreement, as amended from time to time).
For more information about how we process personal data, please read our Customer and Partner Privacy Notice (available at https://www.cognite.com/en/policy).
6. PROPRIETARY RIGHTS AND LICENSE
6.1 Background IPR
Each Party retains all right, title, and interest in and to its Background IPR, and neither Party shall acquire any rights or licenses in or to the other Party's Background IPR unless otherwise explicitly set forth in the Service Agreement.
6.2 License Grant to Cognite
The Customer accepts to, and does hereby, grant to Cognite a license to use the Customer´s Background IPR as may be required for Cognite to perform the Professional Services under the Service Agreement.
Subject to Section 9.2 and 9.4 and payment of fees due under the Service Agreement, the Results, except for any results of further development of CDF, shall be owned by the Customer, and the Customer accepts to, and does hereby, grant to Cognite a fully-paid, royalty-free, perpetual, non-exclusive, sub-licensable, and assignable license to use, modify, and commercialize freely such Results, provided however that source code to such Results shall be handled by both Parties as Confidential Information, cf. Section 7, unless otherwise agreed in writing.
For the avoidance of doubt, Cognite shall be the sole owner, and retain all right, title, and interest in any result of further development of Cognite Data Fusion.
All Confidential Information exchanged or otherwise transferred between Cognite and the 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 or as otherwise agreed in the Service Agreement, without the written consent of the disclosing Party, unless such Confidential Information
- is already known by rightful means to the receiving Party at the time the information was received;
- is or becomes part of the public domain other than through a fault of the receiving Party;
- is received from a third Party without an obligation of confidentiality of which the receiving Party was or should have been aware;
- is required to be disclosed 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 Professional Services, 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 Customer as a user of the Professional Services for reference purposes in its marketing efforts, and may strictly for the purpose thereof reproduce the Customer's trademarks 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 Service Agreement.
8. WARRANTIES, INDEMNIFICATION AND LIMITATIONS OF LIABILITY
Cognite warrants that it shall provide the Professional Services with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the Professional Services.
Unless specifically stated in the Services Order Form, Cognite does not make warranties of any kind, express, implied, or statutory with regard to specific Results being achievable, fit for the intended purpose (or for any purpose) or free from defects or errors.
In the event of breach of warranty that is not attributable to Customer’s delay or failure to comply with its obligations under the Service Agreement, the Customer may require that Cognite (i) re-performs the Professional Services, and/or (ii) replaces personnel, who failed to perform the Professional Services in a satisfactory manner.
The remedies set out in this Section 8.2 shall be the Customer's exclusive remedies for breach of the warranty. If Cognite is unable to re-perform the Professional Services as warranted, the Customer shall be entitled to recover the fees paid to Cognite for the deficient Professional Services. The Customer must set forth any claims with regard to the breach of warranties for the Professional Services performed under the Service Agreement, within thirty (30) days of performance of such Professional Services.
8.3 Mutual Indemnification
Cognite shall indemnify the Customer from and against any claim concerning (i) personal injury, disease or loss of life of any employee of Cognite; and (ii) loss of or inability to recover or damage to property of Cognite, arising out of or in connection with the Service Agreement. This shall apply regardless of cause, whether through negligence and/or breach of duty (statutory or otherwise) of any of the Customer's affiliates that arises out of or in connection with the Service Agreement.
The Customer shall indemnify Cognite from and against any claim concerning (i) personal injury, disease, or loss of life of any employee of the Customer; (ii) loss of or inability to recover or damage to property of the Customer; and (iii) damage to the environment arising out of or in connection with the Service Agreement. This shall apply regardless of cause, whether through negligence and/or breach of duty (statutory or otherwise) of any of Cognite's affiliates that arises out of or in connection with the Service Agreement.
8.4 IPR indemnification
Cognite shall indemnify the Customer against any claim from any third party that use of the Results in the Customer’s usual course of business infringes such third party's IPR, provided that Cognite is given immediate and complete control of such claim, that the Customer does not prejudice Cognite's defense of such claim, that the Customer gives Cognite all reasonable assistance in connection with such claim, and that the claim does not arise as a result of the use otherwise than in accordance with the terms of the Service Agreement.
The foregoing indemnification obligation shall not apply to claims caused by or arising as a result of the use or combination of the Results or any part thereof with software, hardware, data, or processes not provided by Cognite, if the Results or use thereof would not cause the claims without such combination.
If the Results infringe any third party's IPR, Cognite shall apply commercially reasonable efforts to cure the infringement without undue delay. Until any infringement is resolved, Cognite shall be entitled to make the part of the Results in question unavailable to the Customer.
The foregoing states the entire liability of Cognite to the Customer of the infringement of IPR of any third party. This Section 8.4 regarding infringement applies correspondingly should any delivery of the Customer, infringe any third party's IPR.
8.5 Indemnification conduct
A Party shall promptly notify the other Party if it receives a claim that the other Party shall be obliged to indemnify. Whenever possible, the other Party shall take over the defence of the claim. The Parties shall promptly give each other information and other assistance needed for handling the claim. The indemnified Party shall not compromise or settle or otherwise dispose of a claim, in whole or in part, without the written consent of the other Party.
8.6 Limitation of damages
In no event shall a Party be liable towards the other Party under or in connection with this Service Agreement or the subject matter contemplated hereunder, including, without limitation, the Professional Services, 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 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 aggregate liability of each Party for loss arising out of or in connection with the Professional Services and the Service Agreement shall not exceed 50% of the fees paid by the Customer for the Professional Services during the six (6) months prior to the event giving rise to the liability, less value added tax. For the avoidance of doubt this limitation of liability shall be cumulative and not per incident.
The limitations set out in this Section 8.6 shall not apply in relation to a Party's breach of Section 7, or in the case of gross negligence or wilful misconduct by Cognite or the Customer, nor apply in relation to the indemnification provisions set out in Section 8.3.
9. TERM AND TERMINATION
The Service Agreement enters into force on the Effective Date and shall remain in force until the Service Period expires as further specified in the Service Order Form or a Service Order Form Amendment, unless terminated earlier in accordance with the Service Agreement (the "Term").
9.2 Termination for breach
A Party is entitled to terminate the Service Agreement, by written notice to the other Party, if the other Party is in material breach of the Services Agreement, and fails to remedy the breach within thirty (30) days following written notice of breach from the other Party.
If the material breach from the Customer is not possible to remedy, Customer’s rights as set out in Section 6.3 shall lapse with immediate effect and be transferred to Cognite.
For the avoidance of doubt, any termination done by Cognite because of material breach by the Customer is without liability to Cognite, and such termination does not release the Customer from any payment obligation, nor does it entitle the Customer to any refund.
9.3 Termination for insolvency
A Party is entitled to terminate the Service Agreement by written notice to the other Party if:
- an order is made or a resolution is passed for the winding up or insolvency of the other Party, or the other Party 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 other Party suspends payment of its debts or is unable to pay its debts as they become due; or
- the other Party files for bankruptcy, becomes insolvent, or makes a general compromise or arrangement with its creditors.
9.4 Effect of termination
If the Service Agreement terminates, for reasons other than as the completion and acceptance of the Professional Services in accordance with Section 1.2, the Customer’s rights as set out in Section 6.3 lapses simultaneously and automatically transfers to Cognite.
10. COMPLIANCE WITH APPLICABLE LAWS
The Parties shall comply with any Applicable Laws of any authority having jurisdiction in general and in connection with this Service Agreement and the Professional Services, and shall under no circumstances use the Results to violate human rights law.
10.2 Export Compliance
The Professional Services may be subject to export laws and regulations of the United States and other jurisdictions. Cognite and the Customer each represent that they are not included on any U.S. government denied-party list. The Customer shall not permit any user to access or use any Professional Services in a United States' embargoed country or region or in violation of any United States' export laws or regulations.
10.3 Health, security and environment, and anti-bribery
The Customer shall (i) give priority to safety in order to protect life, health, the environment, and property; and (ii) ensure that tax payments and other payments are made in accordance with Applicable Laws.
Without limiting the generality of this Section 10 and in recognition of the Applicable Laws relating to anti-bribery and corruption of any country in which Cognite delivers the Professional Services, the Customer shall not for itself or anyone else, directly or indirectly:
- 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;
- request, receive, or accept an offer for an improper advantage in connection with the performance of a post, office, or commission;
- give or offer any improper advantage with the purpose of influencing the performance of a post, office, or commission; or
- request, receive, or accept an offer for an improper advantage with the purpose of influencing the performance of a post, office, or commission.
11. GOVERNING LAW AND DISPUTES
11.1 Cognite contracting entity and notices
The Cognite entity entering into this Service Agreement, and the customer contact details to which the Customer shall direct notices under this Service Agreement, are set out in the Service Order Form.
11.2 Governing law
Any dispute arising out of or in connection with this Service 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 Service Agreement with the Customer.
11.3 Dispute resolution
If at any time a dispute or claim arise out of or in connection with this Service Agreement (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 11.3 may be referred by either Party to and shall finally and exclusively be settled by arbitration conducted in accordance with the table below.
The language of the arbitration shall be English. If the Cognite entity entering into this Service Agreement is Cognite K.K., the language of arbitration shall be Japanese. 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 Service Agreement, or ten (10) years after the case is finally settled by an arbitral award, whichever is the latest.
12.1 Assignment prohibition
To the extent permitted by Applicable Laws, Cognite may assign this Service Agreement. The Customer shall not assign this Service Agreement, unless agreed between the Parties in writing.
12.2 Updates to the PSA
Cognite shall be entitled to update this PSA to reflect changes in Applicable Laws or to correct grammatical errors.
Cognite shall be entitled to subcontract any of its obligations under the Service Agreement, but shall remain liable for all subcontracted obligations and its subcontractors’ acts or omissions as for its own.
12.4 Force majeure
If an extraordinary situation should arise which is outside the control of the Parties, and which makes it impossible for the Parties to fulfil its obligations under this Service Agreement (“Force Majeure”), the affected Party shall notify the other Party of this as soon as reasonably practicable. Force Majeure shall include, but not be limited to, 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.
Each Party shall keep each other fully informed of the actual and any expected effects of any Force Majeure, of the steps the affected Party is taking to mitigate the effects of the Force Majeure, and its expected duration.
Where Force Majeure has occurred, the other Party may only terminate this Service Agreement in writing with fifteen (15) calendar days’ notice only 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. Each of the Parties shall cover their own costs associated with such termination of this Service Agreement. Neither Party shall be entitled to bring a claim against the other as a consequence of the termination of this Service Agreement in accordance with this provision.
12.5 Entire agreement
The Service Agreement and any additional terms agreed in writing between Cognite and the Customer and specifically stated to be additional terms to the Service Agreement constitute the entire agreement between Cognite and the Customer on the subject matter hereof, and this Service Agreement supersedes any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by the Customer shall not override or form a part of this Service Agreement, and shall be void.
The terms and conditions of the Service Agreement are set out in the following documents:
- The Service Order Form and any Service Order Form Amendment(s)
- The PSA
In case of conflict between the documents referred to above, the documents referred to in item a) shall prevail over the one in item b), Service Order Form Amendment(s) shall prevail over the Service Order Form, and the Service Order Form Amendment with the latest effective date shall prevail over other, conflicting Service Order Form Amendment(s).
The terms and conditions of the PSA are set out in the following documents:
- This Professional Services Agreement
- The Data Processing Agreement
In case of conflict between the documents referred to in item a) and b) above, the documents shall prevail in the order they are listed.
"Applicable Laws" mean all applicable laws, regulations, requirements or orders, which are issued by any governmental body with legal authority to exercise legislative, judicial, regulatory or administrative functions.
"Background IPR" means any IPR conceived, designed, created, developed, reduced to practice, or otherwise acquired or controlled by Cognite or the Customer prior to the Effective Date of the Service Agreement, or otherwise outside the scope of the Professional Services contemplated under the Service Agreement.
"Cognite" means the Cognite entity entering into this Service Agreement as set out in the Service Order Form.
"Confidential Information" means any information concerning Cognite and the 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 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.
"Consultancy Services" has the meaning set out in the Service Order Form.
"Consultancy Services Period" means the period specified in the Service Order Form.
"Consumer Price Index" means the price index measuring the consumer prices for goods and services purchased by private households in Norway, reported each February by Statistics Norway, the national statistical institute of Norway and the main producer of official statistics (https://www.ssb.no/en).
"Customer" means the legal entity that has entered into a Service Agreement for certain Professional Services, as specified in the Service Order Form.
"Customer Cooperation" means the activities described in Section 3 including all the Customer activities specified in the Service Order Form or a Service Order Form Amendment.
"Data Processing Agreement" means the data processing agreement set out in the document available here: content.cognite.com/en/legal/data-processing-agreement, as amended from time to time.
"Effective Date" has the meaning set out in the Service Order Form.
"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 form such rights, and all similar or equivalent rights or forms of protection.
"Professional Services" means the individual service, including the timing, fees, and other terms and conditions applicable, as stated in the Service Order Form.
"Results" means any results arising out of the performance of the Professional Services including and not limited 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, as well as any IPR related thereto.
"Service Agreement" means the Service Order Form, with the SoW, any Service Order Form Amendment, and this PSA, including the Data Processing Agreement.
"Service Order Form" means the individual order form executed between Cognite and the Customer that provides and confirms which Professional Services are ordered and the terms and conditions to apply thereto, including SoW(s).
"Service Order Form Amendment" means a written order form executed between Cognite and the Customer that changes the Professional Services or the terms and conditions thereto.
"Service Period" means the period specified in the Service Order Form.
"Solution" has the meaning specified in the Service Order Form.
"Solution Period" means the period specified in the Service Order Form.
“SoW” means a statement of work describing Professional Services to be provided hereunder, that is incorporated into the Service Order Form or a Service Order Form Amendment.
"Term" has the meaning set out in Section 9.1.