Master Subscription Agreement

LAST REVIEWED AND UPDATED ON JULY 3, 2024

This Master Subscription Agreement (the “MSA”) and the referenced Cognite SaaS SLA and Data Processing Agreement are an integrated part of the Subscription Order Form entered into between Cognite and the Customer (collectively referred to as the “Subscription Agreement”). Capitalized terms used herein shall have the meaning as set out in the Subscription Order Form and in Section 15 below.

The Subscription Items are delivered as software-as-a-service on a subscription basis as further described in the Online Documentation (except for Solution Support and Success Track). Cognite is and shall remain the sole and proprietary owner of the Subscription Items, and Cognite has the right to grant and revoke access to Subscription Items.

1. Grant and use

1.1 User right to Subscription Items

Cognite hereby grants to the Customer, subject to the terms and conditions of the Subscription Agreement, a limited, non-exclusive, payable, non-sublicensable, non-transferable, and revocable right to use the Subscription Items during the Subscription Period, solely within the Field of Allowed Use in the Territory.

The Customer’s use of the Subscription Items shall be limited to its own use only, which for the sake of clarity shall not include access or use by any entity or person other than the legal entity identified as the Customer and its Authorized Users. Customer warrants that all Authorized Users shall be bound by the terms and conditions of the Subscription Agreement and that the Customer shall be liable for its Authorized Users’ acts and omissions as for its own.

1.2 Restrictions

Except as explicitly stated in this MSA, the Subscription Agreement shall not grant the Customer any right or license to the Subscription Items, or any other IPR or property of Cognite, and no license or other rights shall be created by implication or estoppel. In particular, but without limiting the generality of the foregoing, no right or license in or access to source code to CDF is granted hereunder.

The Customer shall not, directly or indirectly, sublicense or transfer the rights granted to it under the Subscription Agreement, and shall under no circumstances commercialize or resell any of the Subscription Items in any way to third parties, including but not limited to by allowing third parties access to separate software utilizing the Subscription Items via an API, or otherwise.

1.3 Acceptable use

The Customer shall be responsible for its conduct and Customer Data while using the Subscription Items and the networks, infrastructure and access credentials used to access the Subscription Items. The Customer shall comply with the following requirements when using the Subscription Items:

1. The Customer shall use the Subscription Items in compliance with, and only as permitted by, Applicable Laws, and shall under no circumstances use the Subscription Items to violate human rights law or other Applicable Laws, or in a manner or for any purpose that infringes any IPR or other right of any third party;
2. The Customer shall not misuse the Subscription Items by interfering with their normal use, attempt to access the Subscription Items using a method other than through the interfaces and instructions that are provided to the Customer by Cognite, or circumvent or attempt to circumvent any limitations that Cognite imposes on the Customer's account;
3. The Customer shall not engage in abusive use of the Subscription Items, which involves improper, illegal, unauthorised, or fraudulent use that may cause harm to the Subscription Items, Cognite, or third parties. The Customer shall not engage in usage in excess of average usage patterns that may adversely affect the speed, responsiveness, stability, availability, or functionality of the Subscription Items for other users. Cognite shall endeavor to notify the Customer of any said abuse or excessive usage to provide the Customer with an opportunity to remedy such breach;
4. Unless authorized by Cognite in writing, the Customer shall not probe, scan, exploit, or test the vulnerability or the security of CDF or any other Subscription Items or system, network, or component used for providing the Subscription Items;
5. The Customer shall not modify, alter, adapt, translate, reverse-engineer, decompile, disassemble, or attempt to discover the source code, underlying ideas, algorithms, file formats, or internal APIs of CDF or any other Subscription Items, or any other Cognite Technology in any way;
6. The Customer shall not prepare any derivative works of the Subscription Items, or reproduce, distribute, sell, or resell any Cognite Technology in any manner or for any purpose;
7. The Customer shall not, directly or indirectly, use the Subscription Items or Confidential Information disclosed by Cognite, or information gained by the Customer from the Subscription Items to design, specify, develop, integrate, market, license, distribute, train, learn, improve, or host any competing products or services to the Subscription Items, or disclose any such information to any third party;
8. Use of the Subscription Items shall at all times be subject to the most current Google Cloud Platform Acceptable Use Policy, Microsoft Terms of Use, or AWS Acceptable Use Policy (available here: http://cloud.google.com/terms,  here: https://www.microsoft.com/licensing/terms/productoffering/MicrosoftAzure/MCA, and here: https://aws.amazon.com/aup/), depending on whether the Subscription Items run on Google Cloud Platform, Microsoft Azure, or AWS.

Without prejudice to other remedies available under the Subscription Agreement, Cognite may immediately suspend Customer’s access to the Subscription Items: a) in case of a violation by Customer or its Authorized Users of Section 1, provided Cognite reasonably deems it necessary to prevent or reduce harm to the Subscription Items, Cognite or third parties; b) if Cognite receives a judicial or other governmental demand or order, subpoena, or law enforcement request or similar requiring Cognite to do so; or c) if Cognite reasonably believes that Customer or any Authorized User has been, or is likely to be, involved in any fraudulent, misleading, or unlawful activities.

For the avoidance of doubt, any suspension as set out above is without liability to Cognite and shall not release the Customer from any payment obligation or entitle the Customer to any refund.

2. Tools, open-source and account management

2.1 Extractors and Cognite Development Accelerators

Cognite may make Extractors and/or Cognite Development Accelerators available for the Customer. The Customer shall be solely and fully responsible for testing, installation, operation, updates, and/or any other use or function of Extractors and Cognite Development Accelerators. Upon termination of the Subscription, the Customer shall, if applicable, delete the Extractors and Cognite Development Accelerators permanently from its IT infrastructure, and provide a written notice to Cognite confirming such deletion. Cognite shall not be liable for any Extractors or Cognite Development Accelerators.

2.2 Open-source software

Cognite may at its own discretion include in the Subscription Items open-source code license from Cognite's third-party licensors. An overview of the relevant open-source licenses and third-party licenses that interact with the Customer’s systems through Extractors or CDF can be provided to the Customer upon request.

2.3 Account management

As part of receiving the Subscription Items, the Customer shall have access to an account which the Customer shall use to administer the Subscription Items.

The Customer shall be responsible for safeguarding the Customer's password and any other credentials used to access its account. Credentials shall not be shared with third parties. The Customer shall be responsible for any activity occurring in the Customer's account, other than activities that Cognite is responsible for under the Subscription Agreement.

2.4 Cognite Hub & Academy

Cognite Hub and Cognite Academy are online communities provided by Cognite as a place for discussion and education on Cognite Technology. The Customer and its Authorized Users can choose to sign up for Cognite Hub and Cognite Academy at https://hub.cognite.com/. For the avoidance of doubt, the Subscription Agreement does not apply to Cognite Hub, Cognite Academy, or any access and use thereof, which is governed exclusively by the Cognite Hub and Academy Terms and Conditions available here: https://www.cognite.com/en/legal/generalterms.

Notwithstanding the foregoing, the Parties agree that the Data Processing Agreement shall apply in connection with any processing of personal data about Authorized Users in Cognite Academy by Cognite on behalf of Customer, such as course progression in Cognite Academy, grades, and completion of modules.

2.5 Software usage analytics

Nothing in this Subscription Agreement shall limit Cognite from tracking, analyzing, presenting, and visualizing data on the use of and interaction with the Subscription Items to understand, secure, optimize, and improve the Subscription Items and use thereof, including the adoption and usage of features, user engagement, and user experience. Notwithstanding the foregoing, Cognite shall never disclose such data to third parties.

3. Support

3.1 SaaS SLA 

Cognite shall support the Subscription Items in accordance with the Cognite SaaS SLA (available at https://content.cognite.com/en/legal/cognite-saas-service-level-agreement-sla), as amended from time to time).

The Cognite SaaS SLA shall not apply to Extractors, Cognite Development Accelerators, Cognite Hub or Cognite Academy, Customer’s Solution Support Subscription or Success Track Subscription (if any).

3.2 Solution Support

Solution Support is a subscription for support and maintenance of a software solution owned by the Customer. If the Customer has purchased Solution Support (as specified in the Subscription Order Form), Cognite shall support and maintain the solution subject to the Solution Support in accordance with the service level set out in the Cognite Solutions Service Level Agreement available here: https://www.cognite.com/en/legal/generalterms, as amended from time to time.

Due to the nature of the Solution Support, only the following provisions in the MSA shall apply to the Solution Support: Sections 3.2 (Solution Support), 4.2 (Personal data), 5 (Fees and payment), 6.1 (Changes to the Customer's Subscription), 6.3 (Revising of fees), 7.1 (Background IPR), 7.3 (Customer Data), 8 (Confidentiality), 9.5 (Limitation of liability), and Sections 10-15.

For the avoidance of doubt, the Cognite SaaS Service Level Agreement does not apply to Solution Support, and the Cognite Solutions Service Level Agreement does not apply to any other Subscription Items.

3.3 Success Track

Success Track is delivered as an add-on service to the Customer’s CDF Subscription and is provided to facilitate accelerated adoption of the Customer’s CDF deployment (“Success Track”). 

Success Track is available 8 hours per business day, 5 business days per week (excluding public holidays) to handle the type of requests from the Customer that is included as specified in the Subscription Order Form. The Success Track support team will handle requests from the Customer subject to the following service level:

1. Initial response time upon ticket submission: A target of 6 business hours
2. Resolution time: To be agreed between the support team and the Customer depending on what is required  for resolving the request in question.

The Parties will meet once per quarter, or at other mutually accepted cadence, to discuss Customer´s usage of the Success Track Subscription, expected future usage, and mutually establish usage limitations to prevent excessive use of Success Track by Customer to ensure Success Track usage does not exceed Cognite’s capacity to satisfactorily provide Success Track. 

The Customer shall reimburse Cognite for all documented and reasonable travel and subsistence costs incurred in connection with the performance of the Success Track Subscription, provided the travel was approved by the Customer. 

Success Track  is not intended to involve any sort of consulting services that would provide for any IPR ownership rights or works made for hire.  Success Track does not include other Subscription Items, software services, professional services or consulting services. Any such professional or consulting services must be agreed and performed pursuant to a separate professional services agreement. Neither the Cognite SaaS SLA, the Cognite Solution Support SLA or other SLAs shall apply to the Success Track Subscription other than the service level set out above in Section 3.3.

4. Protection and use of Customer Data

4.1 Handling Customer Data

The Customer is solely responsible for the lawfulness, reliability, integrity, and accuracy of Customer Data provided to Cognite.

Cognite shall maintain technical and organizational measures for the protection of the security and confidentiality of Customer Data, including but not limited to measures that seek to prevent access, use, modification, or disclosure of Customer Data, except as expressly permitted by the Customer in accordance with the Subscription Agreement and with Applicable Laws.

Cognite shall, upon the Customer's request, at any time during the Term, make commercially reasonable efforts to make all Customer Data available to the Customer in a structured, commonly used, and machine-readable format. Upon the expiration or termination of the Subscription and upon the Customer’s request, Cognite shall delete or destroy all copies of 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 Customer Data by Applicable Laws. Cognite may retain Customer Data in backups, archives, and disaster recovery systems until deleted in the ordinary course of business, provided that such retained Customer Data shall remain subject to the requirements on confidentiality and security under the Subscription Agreement.

Cognite shall promptly inform the Customer of any known or reasonably suspected security breach or unauthorized disclosure of Customer Data, personal data, or Confidential Information (“Security Event”).

In case of a Security Event, Cognite shall (i) take all reasonable steps to mitigate any potential damages; and (ii) promptly respond to security-related inquiries from the Customer and take all reasonable steps to identify, investigate, and resolve applicable security issues in a timely manner.

4.2 Personal data

Cognite's Data Processing Agreement (available at https://content.cognite.com/en/legal/data-processing-agreement) as amended from time to time, shall apply to any processing of personal data by Cognite on behalf of the Customer in the performance of the Subscription Agreement.

For more information about Cognite’s processing of personal data, please read Cognite’s Customer and Partner Privacy Notice (available here: https://www.cognite.com/en/policy).

4.3 Backup

Cognite shall use commercially reasonable efforts to run back-ups as further described in the Cognite SaaS SLA. The Customer shall remain responsible for maintaining, protecting, and making backups of all Customer Data provided to Cognite.

4.4 Limited user right

Cognite may use Customer Data to provide, secure, and improve Cognite Technology and is granted a limited, royalty-free, sublicensable right to use the Customer Data for such purposes, provided that Cognite shall not use the Customer Data for other purposes than explicitly permitted under the Subscription Agreement and not use the Customer Data in a way that compromises the confidentiality of the Customer Data. As set out in Section 7.3, the Customer shall remain the owner of the Customer Data.

5. Fees and payment

5.1 Subscription fees

The Customer shall pay to Cognite the fees in accordance with the pricing and payment terms agreed in the Subscription Order Form and this MSA. All fees are provided exclusive of Taxes. Unless otherwise set out in the Subscription Order Form, payments are due thirty calendar (30) days after receipt of correct invoice.

The Customer acknowledges and agrees that all fees and charges payable under the Subscription Agreement shall be paid in the currency stated in the Subscription Order Form. The Customer shall bear full responsibility for any currency exchange costs, fees, or fluctuations related to the conversion of their local currency to the currency stated in the Subscription Order Form for the purpose of making payments under this Subscription Agreement.

Fees paid by the Customer are non-refundable, except in case the Customer terminates the Subscription Agreement for breach in accordance with Section 10, in which case Cognite shall refund fees paid in advance, pro-rated with reference to the effective date of the termination.

5.2 Partial billing cycles

The Customer shall only be invoiced for such part of the Billing Cycle during which the Subscription Agreement is in force unless the Subscription Agreement is terminated by Cognite as a result of the Customer’s breach.

5.3 Late payment interest

If the Customer fails to make any payment when due, then, without limiting Cognite’s remedies under Section 5.4 and Section 10, Cognite shall from the first day of delayed payment be entitled to interest on any overdue amount at 9,5% per annum, or if lower, the highest rate permitted under Applicable Laws, in respect of such unpaid amount. Cognite shall not exercise its right under this Section 5.3 insofar and as long as the Customer is disputing the applicable payment obligation reasonably and in good faith and is cooperating diligently to resolve the dispute, but this shall not affect the accrual of late payment interest on the overdue amount while the Parties work to resolve the dispute.

5.4 Payment default

If overdue fees, with the addition of late payment interest, have not been paid within the due date, Cognite may send the Customer a written notice stating that the Subscription Agreement shall terminate or Subscription be suspended as a result of the Customer's breach, unless settlement has taken place within fourteen (14) calendar days of receipt of the notice. Cognite shall not incur any liability to Customer due to such termination or suspension, nor shall Customer be entitled to any service credits under the Cognite SaaS SLA or Cognite Solutions SLA.

Such termination or suspension shall not take place if the Customer settles the overdue fee, with the addition of late payment interest, prior to the expiry of the deadline.

5.5 Taxes

The Customer and Cognite shall each be responsible for their own Taxes in connection with the Subscription Agreement, except as set out below or elsewhere in the Subscription Agreement.

If value-added taxes, sales taxes, goods and services taxes, or similar indirect taxes are applicable under Applicable Laws to any invoiced amounts under the Subscription Agreement, Cognite shall add such taxes to the invoiced amounts at the rate required by Applicable Laws and present such taxes appropriately on the invoice.

All payments under the Subscription Agreement shall be made without deduction or withholding of any Taxes unless such deduction or withholding is required by Applicable Laws. If the Customer is required by Applicable Laws to deduct or withhold Taxes on payments under the Subscription Agreement, the Subscription fees shall be increased (grossed up) so that the Customer pays to Cognite the same amount that would have been paid had such deduction or withholding not been required.

The Customer shall defend, hold harmless and indemnify Cognite from liability to any competent authority resulting from the failure by the Customer to deduct, withhold or remit Taxes where required by Applicable Laws.

The Customer undertakes to provide Cognite with original receipts and other relevant documentation to evidence the deduction, withholding, and remittance of Taxes on behalf of Cognite.

The Customer shall be liable for any Taxes levied on Cognite in connection with the Subscription Agreement outside the jurisdiction where Cognite is resident for tax purposes unless such taxes are covered by the preceding paragraphs of this Section 5.5. Such taxes shall be paid by the Customer directly to the relevant tax authority where permissible under Applicable Laws or otherwise reimbursed by the Customer to Cognite where Cognite is required to pay such taxes.

The Customer shall be liable for any new or increased Taxes levied on Cognite in connection with the Subscription Agreement outside the jurisdiction where Cognite is resident for tax purposes. If such new or increased taxes relate to a deduction or withholding requirement, the Subscription fees shall be grossed up in accordance with the third paragraph of this Section 5.5. Otherwise, such new or increased taxes shall be paid by the Customer directly to the relevant tax authority where permissible under Applicable Laws or otherwise reimbursed by the Customer to Cognite where Cognite is required to pay such taxes.

5.6 External marketplaces and invoicing systems

Should the Customer wish to complete payment of Subscription fees through Microsoft Marketplace,  Google Marketplace, or similar marketplace, and Cognite accepts this in writing, the Customer acknowledges that such transactions are subject to the applicable terms and conditions of Microsoft, Google, or other third-party, as applicable, and that the Customer shall be responsible for any costs incurred in connection with such transactions, including any local taxes, such as any value-added tax (VAT), goods and services tax (GST), sales tax, and foreign exchange fees. In addition, all payments to Cognite completed through a third party marketplace are subject to an administrative fee of 5%. 

Should Cognite agree in writing to utilize Customer’s preferred invoicing system, Customer shall reimburse Cognite for any costs incurred in connection with accessing and using such invoicing system for the purpose of invoicing Customer in accordance with the Subscription Agreement.

The Parties explicitly agree that Section 5.1 above shall apply and have priority regardless of any arrangements between Cognite and Customer regarding the use of invoicing system. The Subscription Agreement shall prevail over any terms and conditions associated with a) transactions in Google Marketplace, Microsoft Marketplace, or other third-party marketplace, and b) any third-party invoicing systems.

6. Changes and updates

6.1 Changes to the Customer's Subscription

If at any time the Customer wishes to change or extend its Subscription beyond the scope defined in the Subscription Order Form and Cognite accepts such changes, such changes shall be defined in an Amendment Order Form to be signed by an authorized representative of both Cognite and the Customer.

6.2 Modification to the Subscription Items

The Customer acknowledges that Cognite’s ability to continuously develop and enhance the Subscription Items is an integral part of the software-as-a-service delivery model and decisive to ensure continuously improved user experience and the relevance and competitiveness of the Subscription Items. Cognite, therefore, reserves the right to enhance, modify, and add and remove features and functionality of the Subscription Items from time to time. Such modifications may include the introduction of new subcontractors.

Cognite shall in the release updates available at https://docs.cognite.com/cdf/whatsnew/ announce if it intends to discontinue or make backward-incompatible changes to the functionality of the Subscription Items. Such changes shall also be described in the Online Documentation. The Customer may choose to provide notice of non-renewal prior to the next renewal date of the Subscription as further set out in the Subscription Order Form should Customer not want to renew the Subscription due to the announced changes. Cognite shall use commercially reasonable efforts to continue to operate the Subscription Items' functionality and features without said changes for at least twelve (12) months after the announcement, unless:

1. Otherwise required by Applicable Laws; or
2. Doing so could create a security risk or substantial economic or material technical burden.

6.3 Revising of fees

Cognite shall be entitled to adjust the Subscription fees each calendar year. In case of an increase in the Subscription fee, such 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.

7. IPR ownership

7.1 Background IPR

Each Party is and shall remain the sole and exclusive owner of all right, title, and interest in and to its own Background IPR and the Subscription Agreement does not affect such ownership. No rights to the other Party's Background IPR are acquired under the Subscription Agreement unless expressly stated.

7.2 Subscription Items and Improvements

For the avoidance of doubt and without limiting the generality of Section 7.1, Cognite and its third-party licensors (which exclude the Customer) is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Subscription Items, the Cognite Technology, and any Improvements, which shall be considered Cognite's Background IPR. Cognite shall have the right to use and commercialize any Improvements at its discretion without any restrictions whatsoever.

This shall not alter the fact that such Background IPR is licensed by Cognite K.K or Cognite LLC from Cognite AS or its third-party licensors. 

7.3 Customer Data

The Customer shall retain ownership of its Customer Data.

8. Confidentiality

Except as explicitly stated in the MSA, all Confidential Information exchanged or otherwise transferred between Cognite and the Customer shall be treated as confidential. The receiving Party shall duly handle and protect the Confidential Information from unauthorized disclosure using the same level of care the receiving Party uses to protect its own Confidential Information, but at least a commercially reasonable level of care. Confidential Information 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 Subscription Agreement, 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 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 8 (d) apply, the receiving Party shall disclose only that portion of the Confidential Information which it is legally required to disclose. The receiving Party shall exercise its best efforts to obtain reasonable assurances that confidential treatment shall be accorded such Confidential Information.

Without prejudice to the foregoing, (i) the receiving Party may disclose Confidential Information to a third party, to the extent necessary for the performance of the Subscription, provided that the receiving Party shall procure that such third party shall be bound by confidentiality obligations at least as onerous as set out in this Section 8, and (ii) Cognite shall be entitled to name the Customer as a user of the Subscription Items for reference purposes in its marketing efforts, and may strictly for the purpose thereof reproduce the Customer's trademarks and logos.

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

9. Warranties, indemnification, and limitation of liability

9.1 Warranties

Cognite warrants that it shall provide the Subscription Items with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the Subscription Items.

In the event of a breach of warranty, the Customer shall notify Cognite of the breach in writing and Cognite shall attempt to remedy the breach without undue delay. If Cognite fails to do so, the Customer may terminate the Subscription Agreement in accordance with the procedure in Section 10 if the breach is material.

Except as expressly provided in the Subscription Agreement and to the extent permitted by Applicable Laws, the Subscription Items shall be provided “as is” and Cognite does not make warranties of any kind, express, implied, or statutory, including those of merchantability, fitness for a particular purpose, or any warranty regarding the availability, reliability or accuracy of the Subscription Items except as explicitly set out in the Subscription Agreement.

9.2 General indemnity

To the extent allowed by Applicable Laws, Customer shall indemnify Cognite, its affiliates, and their respective directors, officers, employees, and agents, and defend and save each of them harmless, from and against Losses resulting from any and all suits, investigations, claims, or demands from any third party (including actions by government authorities) arising out of or relating to Customer’s unlawful use of Cognite Technology. The Customer shall be given immediate and complete control of such claims. Cognite shall not prejudice Customer's defense of such claim and provide Customer all reasonable assistance in connection with such claim.

9.3 IPR indemnity

Cognite shall indemnify the Customer against Losses resulting from any claim from any third party alleging that the permitted use of the Subscription Items 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 of Subscription Items otherwise than in accordance with the terms of the Subscription Agreement.

The foregoing indemnification obligation shall not apply to claims caused by or arising as a result of Customer Data, or the use or combination of the Subscription Items or any part thereof with software, hardware, data, or processes not provided by Cognite, if the Subscription Items or use thereof would not cause the claims without such combination.

To avoid and cure infringements, Cognite may, at its option:

1. procure the right to use the Subscription Items as before, without infringing any third-party rights;
2. replace or change the Subscription Items or provide materially corresponding Subscription Items that do not infringe any third-party rights; or
3. terminate the Subscription Agreement with immediate effect by written notice to Customer.

Until any infringement is resolved, Cognite shall be entitled to make the Subscription Items in question unavailable to the Customer. Customer shall be entitled to a pro-rata refund of Subscription fees pertaining to the periods during which Cognite has made the Subscription Items unavailable as set out in the foregoing, and Cognite shall not incur any other liability for exercising this right.

The foregoing states the entire liability of Cognite to the Customer for the infringement of IPR of any third party. This Section 9.3 regarding infringement applies correspondingly should any delivery of the Customer, for instance Customer Data, infringe any third party's IPR.

9.4 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 defense 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.

9.5 Limitation of liability

In no event shall a Party be liable towards the other Party under or in connection with the Subscription Agreement or the subject matter contemplated hereunder, including, without limitation, the Subscription Items, 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 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 aggregate liability of each Party arising out of or in connection with the Subscription Items and the Subscription Agreement shall not exceed 50% of the Subscription fees paid by the Customer for the Subscription during the twelve (12) 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 9.5 shall not apply in relation to a Party's breach of Section 1 (Grant and Use), Section 8 (Confidentiality), the indemnities offered in Section 9.2 (General Indemnity) and 9.3 (IPR Indemnity), or in the case of gross negligence or wilful misconduct by the Senior Officers of Cognite or the Customer.

10. Term and termination

10.1 Term

The Subscription Agreement enters into force on the Effective Date and shall remain in force until the expiry of the Subscription Period (including any Renewal Subscription Period) as further specified in the Subscription Order Form or an Amendment Order Form unless terminated earlier in accordance with the Subscription Agreement (the "Term").

10.2 Termination

With effect from the expiry of the then-current Subscription Period, either Party may terminate individual Subscription Items by written notice to the other Party no later than three (3) months prior to the end of the current Subscription Period unless otherwise is set out in the Subscription Order Form or an Amendment Order Form. 

10.3 Termination for breach

A Party is entitled to terminate the Subscription Agreement by written notice to the other Party if the other Party is in material breach of the Subscription Agreement and fails to remedy the breach within thirty (30) days following written notice of breach.

Such written notice shall specify the alleged material breach and the grounds for termination. If Customer’s notice results in a termination of the Subscription Agreement, the grounds for termination and material breach identified in the notice constitute the final frame and grounds that shall determine whether the Customer had the right to terminate the Subscription Agreement.

If a material breach from the Customer is not possible to remedy, Cognite may terminate the Subscription Agreement with immediate effect. For the avoidance of doubt, any termination by Cognite as set out in the Subscription Agreement is without liability to Cognite, and shall not release the Customer from any payment obligation or entitle the Customer to any refund.

10.4 Termination for insolvency

A Party is entitled to terminate the Subscription Agreement with immediate effect by written notice to the other Party if:

1. 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 the 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
2. the other Party files for bankruptcy, becomes insolvent, or makes a general compromise or arrangement with its creditors.

10.5 Effect of termination

If the Subscription terminates or expires, for whichever reason, the user right set out in Section 1 terminates simultaneously.

11. Compliance with applicable laws

11.1 General

The Customer shall comply with any Applicable Laws of any authority having jurisdiction in general and in connection with the Subscription Agreement and the Subscription Items.

Cognite shall have the right to terminate the Subscription Agreement with immediate effect if Customer becomes subject to the Norwegian, EU, UK, or US sanctions.

11.2 Export compliance

The Cognite Technology may be subject to export laws and regulations of the United States of America (“U.S. or United States”) and other jurisdictions. Cognite and the Customer each represent that it is not included on any U.S. government denied-party list. The Customer shall comply with all applicable export and re-export control laws and regulations, including without limitation the EAR, and any applicable laws and regulations of the country or jurisdiction in which the Customer is located or from which the Customer accesses or uses Cognite Technology.  The Customer shall not permit any user to access or use any Cognite Technology in a United States-embargoed country or region or in violation of any United States' export laws or regulations. The Customer acknowledges that Cognite Technology is currently classified as EAR99 under the EAR, which generally allows for export or re-export to most countries, subject to certain restrictions and prohibitions.

11.3 Health, security, environment, and anti-bribery

Each Party 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 11 and in recognition of the Applicable Laws relating to anti-bribery and corruption of any country in which Cognite delivers the Subscription Items, neither Party shall 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.

12. Contracting entities, notices, governing law, and dispute resolution

12.1 Contracting entities and notices

The Cognite and Customer entities entering into the Subscription Agreement, and the contact details to which notices shall be directed under the Subscription Agreement, are set out in the Subscription Order Form. A copy of all notices to Cognite under the Subscription Agreement shall be sent to legal@cognite.com.

12.2 Governing law

Any dispute arising out of or in connection with the Subscription 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 Subscription Agreement with the Customer.

12.3 Dispute resolution

If at any time a dispute or claim arises out of or in connection with the Subscription Agreement (whether in contract, in tort, or based on statute or regulation), then any Party shall provide written notice to the other Party specifying the nature of the dispute or claim 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 the dispute or claim amicably.

Disputes or claims that remain unresolved at the expiration of such period 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 Subscription Order Form with the Customer in accordance with the table below.

The language of the arbitration shall be English. If the Cognite entity entering into this Subscription Agreement is Cognite K.K., the language of the arbitration shall be Japanese. The arbitral proceedings and the arbitral award shall be treated as Confidential Information in accordance with Section 8, however such that this obligation to observe confidentiality shall continue ten (10) years after the termination of this Subscription Agreement, or ten (10) years after the case is finally settled by an arbitral award, whichever is the latest. For the avoidance of doubt, this confidentiality obligation shall cover all information disclosed in the course of such arbitral proceedings.

13. Miscellaneous

13.1 Assignment prohibition

To the extent permitted by Applicable Laws, Cognite may assign the Subscription Agreement. The Customer shall not assign the Subscription Agreement unless agreed between the Parties in writing.

13.2 Updates to the MSA

Cognite shall be entitled to update this MSA to reflect changes in Applicable Laws or correct grammatical errors.

13.3 Subcontracting

Cognite shall be entitled to subcontract any of its obligations under the Subscription Agreement and shall remain liable for all subcontracted obligations and its subcontractors’ acts or omissions as for its own.

13.4 Force majeure

Cognite shall not be liable under the Subscription Agreement if prevented from or delayed in performing its obligations by acts or events beyond its reasonable control, including war, strike, lockout, riot, epidemic, pandemic, and natural catastrophes such as flood, fire, earthquake, hurricane, volcanic eruption, and sandstorm; utility, network or device failure external to Cognite or its cloud service providers; and third-party attacks, including but not limited to distributed denial of service, directed attacks targeting Cognite, or impacting the Subscription Items (“Force Majeure”).

The Customer may terminate the Subscription Agreement in writing with fifteen (15) calendar days’ notice if the Force Majeure lasts or is expected to last for more than ninety (90) calendar days from the date on which the Force Majeure arose. Each of the Parties shall cover their own costs associated with such termination of the Subscription Agreement. Neither Party shall be entitled to bring a claim against the other as a consequence of the termination of the Subscription Agreement in accordance with this provision.

13.5 Entire agreement

The Subscription Agreement, and any additional terms agreed in writing between Cognite and the Customer and specifically stated to be additional terms to the Subscription Agreement, constitute the entire agreement between Cognite and the Customer on the subject matter hereof, and the Subscription 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 the Subscription Agreement and shall be void.

13.6 Survival

The following of the provisions herein shall survive termination or expiration of the Subscription Agreement: Section 5 (Fees and payment), Section 8 (Confidentiality), Section 9.2 (General Indemnity), Section 9.3 (IPR indemnity), Section 9.4 (Indemnification conduct), Section 9.5 (Limitation of liability), Section 12.2 (Governing Law), and Section 12.3 (Dispute Resolution).

14. Structure

15. Definitions