Master Subscription and Professional Services Agreement

LAST REVIEWED AND UPDATED ON JANUARY 31, 2025

This Master Subscription and Professional Services Agreement and the referenced Cognite SaaS SLA and Data Processing Agreement are an integrated part of the Order Form entered into between Cognite and the Customer (collectively referred to as the “Agreement”). Capitalized terms used herein shall have the meaning as set out in the applicable Order Form and in Section 16 below.

Sections 1, 2, 3.1, 3.3, 7.1, 10.2 and 10.5 shall only apply when Customer purchases Subscription Items from Cognite.

Sections 4, 6.2, 8.2, 10.3 and 10.4(b) shall only apply when Customer purchases Professional Services from Cognite.

1. Subscription Items - grant and use

1.1 User rights 

Cognite hereby grants to the Customer, subject to the terms and conditions of the 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 Subscription Items are delivered as software-as-a-service on a subscription basis as further described in the Online Documentation. 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.

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 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 the Agreement, Cognite 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 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 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 of the Subscription Items. 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 related functions;
5. The Customer shall not modify, alter, adapt, translate, reverse-engineer, decompile or disassemble any Subscription Items, related API’s or 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. Customer shall not use any information gained from Subscription Items or Confidential Information to develop, sell, contribute to, or design a competing product; and
8. Use of the Subscription Items (including any AI features) 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, https://learn.microsoft.com/en-us/legal/cognitive-services/openai/code-of-conduct and here: https://aws.amazon.com/aup/, https://aws.amazon.com/service-terms), depending on whether the Subscription Items run on Google Cloud Platform, Microsoft Azure or AWS and which AI features (if any) are included in the Subscription Items.

Without prejudice to other remedies available under the 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. Use of tools, Artificial Intelligence and software

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 elect to include open-source code license(s) from Cognite's third-party licensors in the Subscription Items.

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. Customer remains entirely responsible for all activity occurring in the Customer’s account, as well as ensuring credentials are safeguarded and not shared with unauthorized parties.

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.

2.6 Artificial Intelligence

The Customer shall comply with the following terms and conditions when using Subscription Items that incorporate Artificial Intelligence:

1. Customer acknowledges that use of the Subscription Items which include AI is optional, Output that is generated by AI may be incorrect and should be verified for accuracy by Customer prior to use and that Customer is solely responsible for any liability arising from the use or reliance on AI-generated Outputs;
2. The Customer accepts and acknowledges that the Customer Inputs into Subscription Items which include AI may be processed by AI Subprocessors at their data centre(s) and that the location of the data centre(s) may be different to the cloud infrastructure location listed in the Order Form. Cognite disclaims any and all liability for data residency regarding Customer Data that the Customer Inputs into AI. At Customer’s request, Cognite will use reasonable commercial efforts to restrict data residency to locations approved by Customer;
3. Customer will ensure that Customer’s use of Subscription Items including AI does not violate any Applicable Laws and will indemnify Cognite against any Losses caused by Customer’s breach of Applicable Laws; and
4. Customer warrants that Customer has all rights, licenses, and permissions necessary to provide the Input to Cognite.

2.7 Beta Software

Cognite may offer the Customer the right to use Beta Software as part of its Subscription. The Customer agrees that use of Beta Software is optional and that Beta Software may contain bugs, errors, and other issues that could potentially cause data loss or damage. The Customer assumes all risks associated with the use of the Beta Software and in no event shall Cognite be liable to the Customer for Losses caused by Beta Software. Beta Software is not subject to section 7.1.

2.8 AI Bootcamps and Training

Cognite may offer the Customer the opportunity to participate in AI bootcamps or AI training to evaluate Cognite Technology and AI (“AI Bootcamp”). Customer acknowledges that participation is optional and that the AI Bootcamps may include use of Beta Software. Customer confirms it shall not use AI Bootcamp results for live production in CDF.

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, Artificial Intelligence, Beta Software, 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 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 Agreement shall apply to the Solution Support: Sections 3.2 (Solution Support), 5.2 (Personal data), 6 (Fees and payment), 7.1 (Changes to the Customer's Subscription), 7.2(Revising of fees), 8.1 (Background IPR), 8.3 (Customer Data), 9 (Confidentiality), 10.7 (Limitation of liability), and Sections 11-16.

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 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 does not include other Subscription Items, Professional Services, software services or any other sort of consulting services that would provide for any IPR ownership rights or works made for hire. Any such services must be agreed and performed pursuant to a separate Order Form pertaining to Professional Services. 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. Professional Services - Delivery, Signoff and Suspension

4.1  Acceptance Criteria – Professional Services  – Delivery

Upon completion of each Solution and/or Consultancy Service in accordance with the Agreement, Cognite shall, as applicable: (i) provide the Customer with a copy of each delivered Solution; and (ii) upon the Customer's request, demonstrate its functionality to Customer.

4.2 Signoff of Solution and Consultancy Services

If the Parties, in the 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 Order Form ("Signoff"), the Customer shall provide Cognite with the Signoff in accordance with this Section 4.2 prior to the expiry of the corresponding Solution Period and/or Consultancy Services Period.

The 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 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 the Customer as soon as practicable. The Customer must promptly review and re-test the Solution or Consultancy Services against the requirements set out in the 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 Order Form after its second redelivery to the Customer, and such failure is not attributable to the Customer's delay in or failure to comply with its obligations under the 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 11.3, as such failure shall be considered a material breach.    

4.3 Suspension

The Customer shall not be entitled to suspend Cognite’s delivery of Professional Services in accordance with the Order Form. Any unapproved suspension due to the Customer’s acts or omissions shall not alter Customer’s payment obligations under the Agreement. 

4.4 Limited user right

Customer grants Cognite a limited, royalty-free, sublicensable right to use the Customer Data for developing such improvements and/or new products, provided that Cognite shall not use the Customer Data for other purposes than explicitly permitted under the Agreement. Cognite shall not make changes that would materially affect the core features of Subscription Services or materially decrease the security of the Subscription Items. As set out in Section 8.3, the Customer shall remain the owner of the Customer Data.

5. Protection and use of Customer Data

5.1 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 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 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.

5.2 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 Agreement.

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

5.3 Backup

The Customer shall remain responsible for maintaining, protecting, and making backups of all Customer Data provided to Cognite.

6. Fees and payment

6.1 Fees

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

Fees and charges payable under the Agreement shall be paid in the currency stated in the applicable Order Form. 

Fees paid by the Customer are non-refundable, except in case the Customer terminates the Agreement for breach in accordance with Section 11.3, in which case Cognite shall refund fees paid in advance, pro-rated with reference to the effective date of the termination.

6.2  Professional Services – Fee Basis

Cognite shall invoice either (i) on the basis of time (subject to either hourly or daily rates) and materials or (ii) a fixed fee, in each case as specified for the Professional Services in the Order Form.

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 provide updates on the fees accrued under the Agreement for non-fixed fee engagements.

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 Order Form.

6.3 Late payment interest

If the Customer fails to make any payment when due, then, without limiting Cognite's remedies under Section 6.4, 6.5 and Section 11, 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 6.3 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.

6.4 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 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.

6.5 Taxes

The Customer and Cognite shall each be responsible for their own Taxes in connection with the Agreement, except as set out below or elsewhere in the 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 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 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 Agreement, the 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 Agreement outside the jurisdiction where Cognite is resident for tax purposes unless such taxes are covered by the preceding paragraphs of this Section 6.5. 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 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 6.5. 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.

6.6 External marketplaces and invoicing systems

Should the Customer wish to complete payment of 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 Agreement.

The Parties explicitly agree that Section 6.1 above shall apply and have priority regardless of any arrangements between Cognite and Customer regarding the use of invoicing system. The 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.

7. Changes and updates

7.1 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 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.

7.2 Revising of fees and rates

Cognite shall be entitled to adjust the fees and rates for Subscription Items and Professional Services each calendar year. Such an 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.

7.3 Amendments
If the Parties wish to make any modification to any existing Order Form, it shall be done so by mutual agreement. Such changes shall be defined in an Order Form Amendment, signed by an authorized representative of both Cognite and the Customer.

7.4 Customer Cooperation
The Customer must act in good faith and cooperate with Cognite to enable timely provision of the Subscription Items and/or Professional Services. Should the Customer fail to perform its obligations as set out in this Agreement ,or mutually agreed upon and set out in the applicable Order Form, in a timely manner, Cognite shall not be liable for any delay, loss or damage, cost increase, or other consequences arising from such failure.  Customer shall remain liable for its payment obligations to Cognite regardless of such delays, damages, Losses, cost increases or other such consequences arising out of the Customer’s failure under this section 7.4.

8. IPR ownership

8.1 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 Agreement does not affect such ownership. No rights to the other Party's Background IPR are acquired under the Agreement unless expressly stated.  Cognite, or its related subsidiary, shall remain the sole and exclusive owner of all right, title, and interest in and to any Cognite Technology. 

8.2  Professional Services – Results

Subject to compliance of this Agreement and proper payment of fees due under this Agreement, the Results, except for any results of further development of Cognite Technology, 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, unless otherwise agreed in writing.

8.3 Customer Data

The Customer shall retain ownership of its Customer Data.

9. Confidentiality

Except as explicitly stated in the Agreement, 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 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; or
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 9(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 9, 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 Agreement.

10. Warranties, indemnification, and limitation of liability

10.1 Warranties

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

Except as expressly provided in the 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 Agreement.

With regards to Professional Services, Cognite does not make warranties of any kind, express, implied, or statutory regarding specific Results being achievable, fit for the intended purpose (or for any purpose) or free from defects or errors. Cognite is not responsible for any failure of the telecommunications network or other communications links utilized to gain access to and utilise the Professional Services.

The remedies set out in Section 10.2 and 10.3 shall be the Customer's exclusive remedies for breach of the warranty. 

10.2 Remedies for breach - Subscription Items

In the event of a breach of warranty relating to the Subscription Items, 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 Agreement in accordance with the procedure in Section 11 if the breach is material.

10.3 Remedies for breach - Professional Services

In the event of a breach of warranty relating to the Professional Services that is not attributable to Customer's delay or failure to comply with its obligations under an applicable SOW for Professional Services, the Customer may require that Cognite (i) re-performs the Professional Services affected by such breach, and/or (ii) replaces personnel who failed to perform the Professional Services in a satisfactory manner. 

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 this Agreement, within thirty (30) days of performance of such Professional Services.

10.4 General Indemnities

1. 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 any and all 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 the Customer’s unlawful use of Cognite Technology.
2. Each Party shall indemnify the other Party against any and all Losses resulting from claims concerning (i) personal injury, disease, or loss of life of any employee of a Party; and (ii) loss of or inability to recover or damage to tangible real property of a Party, arising out of or in connection with a Service Order Form executed pursuant to the Agreement, regardless of cause, whether through negligence and/or breach of duty (statutory or otherwise) of any of a Party's affiliates that arises out of or in connection with the Agreement.

10.5 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 Agreement.

The foregoing indemnification obligation shall not apply to claims caused by or arising as a result of Customer Data, Output generated by AI, 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 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 10.5 regarding infringement applies correspondingly should any delivery of the Customer, for instance Customer Data, infringe any third party's IPR.

10.6 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.

10.7 Limitation of liability

In no event shall a Party be liable towards the other Party under or in connection with the 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.

Limitation of Liability - Subscription Items: THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR IN CONNECTION WITH THE SUBSCRIPTION ITEMS OR OTHER SUBSCRIPTION SOFTWARE PROVIDED BY COGNITE 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.  

Limitation of Liability - Professional Services: THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR IN CONNECTION WITH THE PROFESSIONAL SERVICES UNDER THIS AGREEMENT SHALL NOT EXCEED 50% OF THE FEES PAID BY THE CUSTOMER FOR THE PROFESSIONAL SERVICES DURING THE TWELVE 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 10.7 shall not apply in relation to a Party's breach of Section 1 (Grant and Use), Section 9 (Confidentiality), the indemnities offered in Section 10.4 (General Indemnity) and 10.5 (IPR Indemnity), or in the case of gross negligence or willful misconduct by the Senior Officers of Cognite or the Customer.

11. Term and termination

11.1 Term

The Agreement enters into force on the Effective Date and shall remain in force unless terminated by either Party in accordance with the provisions of this Section 11.

11.2 Termination without Cause

Either Party can terminate this Agreement with ninety (90) days prior written notice so long as there are no active or ongoing Order Forms. Order Forms are non-cancellable and may not be terminated during the Subscription Period or Service Period without cause.

11.3 Termination for breach

A Party is entitled to terminate the Agreement by written notice to the other Party if the other Party is in material breach of the 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 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 Agreement.

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

11.4 Termination for insolvency

A Party is entitled to terminate the 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.

11.5 Effect of termination

If the Subscription terminates or expires, for whichever reason, the user right set out in Section 1.1 terminates simultaneously.

12. Compliance with applicable laws

12.1 General

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

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

12.2 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 Export Administration Regulations (“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.

12.3 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 12 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.

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

13.1 Contracting entities and notices

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

13.2 Governing law

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

13.3 Dispute resolution

If at any time a dispute or claim arises out of or in connection with the 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 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 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 9. For the avoidance of doubt, this confidentiality obligation shall cover all information disclosed in the course of such arbitral proceedings.

14. Miscellaneous

14.1 Assignment prohibition

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

14.2 Updates to the Agreement

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

14.3 Subcontracting

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

14.4 Force majeure

Cognite shall not be liable under the 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 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 Agreement. Neither Party shall be entitled to bring a claim against the other as a consequence of the termination of the Agreement in accordance with this provision.

14.5 Entire agreement

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

14.6 Survival

The following of the provisions herein shall survive termination or expiration of the Agreement: Section 5 (Fees and payment), Section 9 (Confidentiality), Section 10.4 (General Indemnity), Section 10.5 (IPR indemnity), Section 10.6 (Indemnification conduct), Section 10.7(Limitation of liability), Section 13.2 (Governing Law), and Section 13.3 (Dispute Resolution).

15. Structure

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

1. The Order Form and any Amendment Order Form(s);  
2. This Master Subscription and Professional Services Agreement;
3. The Cognite SaaS SLA; and
4. The Data Processing Agreement.

In case of conflict between the documents referred to above, the documents shall prevail in the order they are listed, however such that Amendment Order Form(s) shall prevail over the Order Form, and the Amendment Order Form with the latest effective date shall prevail over other, conflicting Amendment Order Form(s).

16. Definitions

“AI Sub-processors” means third party AI providers that Cognite leverages to provide the AI products.

"Amendment Order Form" means a written order form executed between Cognite and the Customer that changes the Customer's Subscription, Professional Services or applicable terms and conditions.

"Applicable Laws" means all applicable laws, regulations, requirements, or orders, which are issued by any governmental body with legal authority to exercise legislative, judicial, regulatory, or administrative functions.

"Applications" means software that utilizes CDF via the CDF API.

“Artifical Intelligence or AI” means Cognite Atlas AI and/or any other artificial intelligence product or features that Cognite provides as part of a Subscription Item.

"Authorized Users" means those individual Customer employees or service providers authorized by Customer to use the Subscription Items on Customer's behalf, on the terms and conditions of the Agreement, and solely for their provision of services to the Customer.

"Background IPR" means any IPR conceived, designed, created, developed, reduced to practice, or otherwise acquired or controlled by Cognite or the Customer prior to, or otherwise outside of and unrelated to the scope of the Agreement.

“Beta Software” means pre-release software provided by Cognite to the Customer for the purpose of testing and obtaining feedback. The Beta Software is not at the level of performance and compatibility of a final, generally available product offering.

"Billing Cycle" has the meaning given in the Order Form.

"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, as further described in the Online Documentation. The term "CDF" shall include CDF API.

"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" means the Cognite entity entering into this Agreement as set out in the Order Form.

"Cognite Applications" means Applications owned or licensed by Cognite, excluding Applications developed by or on behalf of Cognite for the exclusive use of a third party.

"Cognite Development Accelerators" means application development tools and software development kits, which Cognite from time to time may make available.

"Cognite SaaS SLA" means Cognite's standard SaaS service level agreement (available here: https://content.cognite.com/en/legal/cognite-saas-service-level-agreement-sla) as amended from time to time.

"Cognite Technology" means CDF, Cognite Applications, Extractors, and any other technologies owned or licensed by Cognite, and all underlying IPR therein and thereto, including Improvements.

"Confidential Information" means any information concerning either Party that may reasonably be considered as proprietary or confidential, whether in a tangible or intangible form, and whether or not designated by a Party as proprietary or confidential, including, without limitation, procedures, documentation, marketing data, trade secrets, know-how, technical data, software, source codes, valuations, costs, rates, and prices and any other information of a proprietary or confidential nature relating to the disclosing Party or its business, as well as any information created or derived from any such information, irrespective of disclosing medium and storage. Without limiting the generality of the foregoing, Confidential Information includes any information regarding or gained from a Subscription Item. The Confidential Information may be labeled as "confidential", "proprietary", or similar without this being an explicit requirement for protection as Confidential Information.

"Customer" means the legal entity that has entered into the Agreement as specified in the Order Form.

"Customer Data" means data received by Cognite from the Customer, from Input or Output, or from a third party on behalf of Customer, including raw data, processed data i.e. in the form raw data appears after it has been processed by Cognite, and personal data, but shall exclude, for the avoidance of doubt, CDF and any parts thereof and any feedback or suggestions regarding the functionality of the Subscription Items.

"Consumer Price Index" means the official price index measuring the consumer prices for goods and services purchased by private households in the United States of America as reported here: https://www.bls.gov/news.release/cpi.toc.htm. 

"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 Order Form.

"Extractors" means software made available to the Customer in the form of executable code for on-premises installation for use to extract Customer Data and send Customer Data to CDF.

"Field of Allowed Use" has the meaning set out in the Order Form.

"Improvements" means any and all modifications, improvements, or further developments of CDF, Cognite Applications, and Cognite Technology.

“Input” means prompts, information or data submitted by Customer to Cognite through AI.

"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.

"Losses" means any and all losses, liabilities, damages, fines, penalties, costs, and expenses (including reasonable legal fees) finally awarded by a court of final appeal or reached through a negotiated settlement.

"Online Documentation" shall mean the description of CDF that is maintained at https://docs.cognite.com/cdf/ or on such other webpage Cognite may publish and make available to the Customer.

“Output” means responses generated by AI in response to Customer’s use of the AI or Customer’s Input.

"Professional Services" means the individual service, including the timing, fees, and other terms and conditions applicable, as described in the 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.

"Senior Officer" means the Chief Executive Officer, the Chief Finance Officer, and the Chief Legal Officer.

"Service Period" means the period specified in the Order Form.

"Solution" has the meaning specified in the Order Form.

"Solution Period" means the period specified in the Order Form.

"SoW" means a statement of work describing Professional Services to be performed under the Agreement, that is incorporated into the Order Form or an Order Form Amendment. 

"Subscription" means the right to access and use the Subscription Items set out in the Order Form and any Amendment Order Forms as further specified in Section 1 in this Master Subscription and Professional Services Agreement.

"Agreement" means the Order Form, any Amendment Order Forms, this Master Subscription and Professional Services Agreement, the Cognite SaaS SLA, the Data Processing Agreement, and, if applicable, the Solution Support SLA.

"Subscription Item" means individual components included in the Subscription, which may be for the avoidance of doubt include CDF, CDF API, Cognite Development Accelerators, or any Applications and/or Cognite Applications owned by Cognite or its licensors, but only to the extent included in the Subscription.

"Order Form" means the individual Subscription and/or Professional Services order form executed between Cognite and the Customer which confirms the specifics of a Subscription and/or the Professional Services being ordered by the Customer.

"Taxes" means all compulsory charges imposed pursuant to the authority of a country, or political subdivision thereof, to levy taxes or fees on an entity or activity. Such taxes or fees include but are not limited to any and all direct and indirect taxes, duties, and levies of whatever nature, including without limitation income taxes, corporate taxes, financial activities taxes, capital gains taxes, payroll taxes, sales and use taxes, social security contributions, value added taxes, goods and services taxes, withholding taxes, advance taxes, franchise taxes, industry and commerce taxes, property, ad valorem and excise taxes, import/export customs duties or fees, digital services taxes, and stamp duties and real estate taxes, howsoever denominated, having the character of taxation, including any auxiliary obligations, interest, penalties, surcharges, levies, costs and other additions to such taxes.

"Territory" means the geographically restricted area set out in the Order Form, and if not so specified in the Order Form, the country in which the Customer's legal entity is registered.

"Term" has the meaning set out in Section 11.1.