OEM License Addendum
This OEM license addendum (the “OEM Addendum”) shall supplement and constitute an integral part of the Agreement entered into between the OEM and Cognite. Capitalized terms used and not defined herein shall have the meaning as set out in the MSPSA. References to the “Customer” in the MSPSA shall be construed as references to the OEM, and vice versa.
1. INTRODUCTION
The OEM wishes to develop and offer for sale to End-Customers certain OEM Products in which the Subscription Items are utilized. The Parties agree that this OEM Addendum shall govern the development and sale of OEM Products in addition to the MSPSA. In case of conflict between the MSPSA and this OEM Addendum, the latter shall prevail for the purpose of the OEM License.
2. LICENSE GRANT AND RESTRICTIONS
a. Subject to the terms and conditions of the Agreement and the OEM's compliance thereto, Cognite hereby grants to the OEM for the duration of the Term:
(i) a non-exclusive, payable, non-sublicensable, non-transferrable license to use the Subscription Items (identified in the Subscription Order Form) to develop OEM Products (the "Development License");
(ii) a non-exclusive, payable, non-sublicensable, non-transferrable license to sell OEM Products to End-Customers in the Territory as further set out in Section 3(a) (the "Production License");
(iii) a non-exclusive, fully-paid, royalty-free, non-sublicensable, non-transferrable license to use the Cognite Trademarks in relation to the licenses granted in a)-b) above (the "Cognite Trademark License"),
collectively referred to as the "OEM License". The OEM License shall be deemed to replace and supersede the user rights in the MSPSA Section 1.1.
b. For the avoidance of doubt, OEM is excluded from Reselling the Subscription Items and subscriptions thereto to End-Customers.
2.1 Restrictions
a. The OEM shall procure that i) use of any End-Customer Subscriptions to an OEM Product shall be restricted to the End-Customers' own use only, which for the sake of clarity shall not include use by any Person other than the Person identified as the End-Customer, and ii) no End-Customers shall be allowed to commercialize (including by resale or sublicensing) any Cognite Technology through licenses to third parties or otherwise.
b. This OEM Addendum does not grant the OEM any right or license to the Cognite Technology, other than the OEM License. In particular, but without limiting the generality of the foregoing, no right in or license or access to the source code of any Cognite Technology is granted hereunder.
c. Except as otherwise explicitly set out in Section 3(a) below, End-Customers shall only have indirect access to the Subscription Items through the use of OEM Products and OEM shall never make directly available to any End-Customers or other third parties the Subscription Items or any other Cognite Technology, including any APIs owned by Cognite.
d. The OEM shall not and shall procure that its End-Customers shall not, remove any proprietary notices in any of the Cognite Technology or any associated documentation.
e. The OEM shall not and shall procure that its End-Customers shall not, directly or indirectly, use Cognite Technology or such information disclosed by Cognite via the OEM or gained by the End-Customer from the Cognite Technology to design, specify, develop, integrate, market, license, distribute, train, learn, improve or host any competing products or services to the Cognite Technology, or disclose any such information to any third party, unless specifically allowed for under this OEM Addendum.
2.2 Acceptable Use
a. For the avoidance of doubt, the OEM shall comply with the acceptable use clauses of the MSPSA Section 1.3. The OEM 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.
b. The OEM shall not modify, alter, adapt, translate, reverse-engineer, decompile or disassemble any Subscription Items, related API's or Cognite Technology in any way.
c. Without prejudice to other remedies available under the OEM Addendum and MSPSA, Cognite may immediately suspend OEM's access to the Subscription Items: i) in case of a violation by OEM or its Authorized Users of Section 2 or 3, provided Cognite reasonably deems it necessary to prevent or reduce harm to the Subscription Items, Cognite or third parties; ii) if Cognite receives a judicial or other governmental demand or order, subpoena, or law enforcement request or similar requiring Cognite to do so; or iii) if Cognite reasonably believes that OEM or any Authorized User has been, or is likely to be, involved in any fraudulent, misleading, or unlawful activities.
d. For the avoidance of doubt, any suspension as set out above is without liability to Cognite and shall not release the OEM from any payment obligation under the Agreement or entitle the OEM to any refund.
3. SALES AND MARKETING
a. Unless otherwise explicitly agreed between the Parties in writing, the OEM shall only sell OEM Products in the form of End-Customer Subscriptions to OEM Product(s). The OEM shall not provide direct or indirect access to the Subscription Items to third-parties by any other means, or in any way make the Subscription Items directly available to End-Customers or other third parties.
b. Cognite will grant the OEM's License provided that the End-Customers accept the EULA prior to accessing any OEM Products or Cognite Technology as set out in Section 3(a)The OEM represents and warrants that all End-Customers shall be required to accept the terms and conditions of the EULA prior to the first time the End-Customer accesses, directly or indirectly, an OEM Product or Cognite Technology.
c. The OEM shall notify Cognite immediately of any known or suspected breach of any End-Customer Agreement or the EULA, or any unauthorized use of the Cognite Technology. The OEM shall assist Cognite in the enforcement of the terms of the EULA.
d. If Cognite shall process personal data on behalf of the End-Customer, then Cognite's standard Data Processing Agreement shall apply for such data processing (available at https://www.cognite.com/en/company/legal/data-processing-agreement), as amended from time to time.
e. The OEM shall use the Cognite Trademarks solely in accordance with Cognite's trademark usage guidelines as communicated by Cognite from time to time. The OEM shall not use the Cognite Trademarks in any manner that may diminish, tarnish, or otherwise damage the goodwill associated therewith. All goodwill arising from the OEM's use of the Cognite Trademarks shall inure to the benefit of Cognite. Cognite reserves the right to review and approve the OEM's use of the Cognite Trademarks, and the OEM shall promptly cease any use that Cognite reasonably objects to.
f. All marketing and sales materials related to Cognite Technology not provided by Cognite or consisting of content substantially equivalent to such approved material, shall be submitted to Cognite in English for Cognite's review and approval. Such approval by Cognite shall not be unreasonably withheld or delayed.
g. The OEM shall act in its own name and for its own account. The OEM shall not act or purport to act in the name of or on behalf of or as an agent of Cognite. Any warranties, liability for damages, and remedies related to Cognite Technology shall be provided to the End-Customer solely by the OEM, and not by Cognite. This means that any claim the End-Customer may have related to the Cognite Technology and/or the End-Customer Agreement shall be directed toward the OEM only, and in case of a breach of the EULA by Cognite, the breach can only be invoked towards Cognite by the OEM.
h. The OEM shall use commercially reasonable efforts to sell OEM Products to End-Customers during the Term.
i. To the extent any OEM Product incorporates or utilizes Artificial Intelligence features of the Subscription Items, the OEM shall ensure that (i) End-Customers are informed that AI-generated Output may be incorrect and must be verified for accuracy prior to use, (ii) End-Customers' use of such AI features complies with all Applicable Laws, and (iii) the applicable terms and conditions relating to Artificial Intelligence as set out in the MSPSA are flowed down to End-Customers.
j. The OEM shall ensure all new End-Customers pass trade compliance checks prior to entering into the End-Customer Agreement.
k. The Parties shall mutually agree on a press release regarding the purpose and scope of the collaboration contemplated by this OEM Addendum. Neither Party shall issue any public announcement or press release relating to this OEM Addendum without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed.
4. OEM PRODUCT SUPPORT
Cognite shall provide to OEM such support as reasonably required to enable OEM to sell OEM Products and for OEM to provide first-line support and maintenance services to End-Customers during the Term, pursuant to the Cognite One Support SLA. For the avoidance of doubt, the Cognite One Support SLA (or any other SLA) shall not apply to Cognite Atlas AI or the generative AI features of a Subscription Item.
5. FEES and PAYMENT
Fees and payment for the OEM License is set out in the Subscription Order Form. Unless otherwise specified in the Subscription Order Form, the payment terms set out in the Master Subscription and Professional Services shall apply.
6. IPR
6.1 Background IPR and Foreground IPR
For the avoidance of doubt, the definitions of and provisions relating to Background IPR and Foreground IPR in the MSPSA apply.
6.2 OEM Products
The OEM shall be, and shall remain, the sole and exclusive owner of all right, title, and interest in and to any OEM Products and any IPR relating thereto, excluding for the avoidance of doubt the Cognite Technology and its Improvements.
6.3 Freedom to Operate License
This OEM Addendum shall not be construed as limiting Cognite’s right to further develop, commercialize, market, or otherwise exploit in any way, the Cognite Technology. The OEM grants to Cognite a non-exclusive, royalty-free, worldwide, perpetual, and irrevocable license to use any ideas, concepts, techniques, know-how, and general learnings derived from or arising in connection with the OEM Products, solely to the extent necessary to enable Cognite to develop, improve, and commercialize the Cognite Technology. For the avoidance of doubt, this license does not extend to the OEM Products themselves, nor to any specific IPR embodied in the OEM Products, and Cognite shall not reproduce, distribute, sublicense, or otherwise exploit any OEM Product or any part thereof.
7. INDEMNITIES AND LIMITATION OF LIABILITY
7.1 OEM indemnities
a. The OEM 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, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and expenses) (“Losses”) in connection with any and all suits, investigations, claims, or demands from any third party (including any End-Customer) arising out of or in connection with the OEM's or any End-Customers' use of Cognite Technology, and any other part of the OEM License, except for claims covered under the IPR indemnity in the MSPSA.
b. With reference to Section 3(b) (EULA), the OEM shall indemnify Cognite, its affiliates and their respective directors, officers, employees, and agents, and defend and save each of them harmless, from and against any and all Losses in connection with any and all suits, investigations, claims, or demands from any End-Customer directed directly against Cognite in violation of the EULA and Section 3(b) above. For the avoidance of doubt, Cognite shall be liable toward the OEM for Cognite’s breach of this OEM Addendum subject to Section 7.2 (Limitation of Liability), such that the OEM’s obligations set out in this Section 7.1(b) shall apply to the Losses that would not have been incurred had the claim been directed to Cognite by OEM in accordance with this OEM Addendum, rather than by End-Customer in violation of the EULA.
7.2 Limitation of liability
a. For the avoidance of doubt, the limitations of liability for Subscription Items under the MSPSA Section 10.7 (Limitation of liability) shall apply to any claims arising out of or related to this OEM Addendum.
b. The limitations of liability under the MSPSA Section 10.7 (Limitation of liability) and in Section 7.2(a) above shall not apply in relation to a Party's breach of Section 2.1 (Restrictions), Section 2.2 (Acceptable Use), Section 3(b)(EULA), or the indemnification obligations under Section 7, or in the cases listed in the MSPSA Section 10.7 (Limitation of liability) last paragraph.
8. TERM AND TERMINATION
8.1 Term
This OEM Addendum enters into force on the Effective Date and continues until the expiry of the Term, unless terminated earlier in accordance with this OEM Addendum. For the avoidance of doubt, this OEM Addendum shall automatically terminate upon the termination or expiry of the Agreement for whatever reason.
8.2 Termination
Each Party may terminate this OEM Addendum, including all licenses granted herein, by thirty (30) calendar days’ prior written notice to the other Party in the following circumstances:
a. the other Party becomes insolvent or enters into insolvency or bankruptcy proceedings; or
b. the other Party is in material breach of the OEM Addendum and fails to remedy the breach within sixty (60) days following written notice of breach.
c. In case of a violation by OEM of Section 2.1 (Restrictions) or Section 2.2 (Acceptable Use), Cognite may suspend OEM’s access to the Subscription Items if deemed necessary by Cognite to prevent or reduce harm to the Subscription Items, Cognite, or third parties. For the avoidance of doubt, any termination or suspension by Cognite as set out in the OEM Addendum, is without liability to Cognite, and such termination/suspension does not release OEM from any payment obligation, nor does it entitle OEM to any refund.
d. Notwithstanding Section 8.2(b), Cognite shall have the right to terminate this OEM Addendum with immediate effect upon a material breach by the OEM that is not possible to remedy within the stated sixty (60) calendar days, and upon a material breach by the OEM of agreed terms or conditions related to the use or disclosure of Confidential Information or Cognite Technology.
8.3 Effects of termination
a. If the OEM Addendum terminates or expires, for whichever reason, the license grant set out in Section 2 terminates simultaneously.
b. Notwithstanding Section 8.1 and 8.2, the termination of this OEM Addendum shall not affect the validity or content of any End-Customer Subscriptions to an OEM Product entered into before a notice of termination has been issued, and the OEM may on the terms and conditions of the Agreement continue such End-Customer Subscriptions after the termination of this OEM Addendum, provided however that the OEM shall terminate any End-Customer Subscription as soon as permitted under the applicable agreement with the End-Customer and no later than two (2) years from either i) the notice of termination has been issued, or ii) the expiry of the Agreement due to non-renewal as set out in the Subscription Order Form, as applicable. For the duration of any such continued End-Customer Subscriptions, the OEM shall remain obligated to pay Cognite the applicable fees in accordance with the Subscription Order Form.
c. The OEM shall not sell OEM Products, extend any End-Customer Subscription nor in any other way distribute the Subscription Items, or allow direct or indirect access thereto, to existing or potential End-Customers, after this OEM Addendum has been terminated, provided however that this is without prejudice to Section 8.3(b).
9. COMPLIANCE WITH LAW
9.1 Compliance with law
a. Each Party shall comply, and cause its personnel, agents, and subcontractors to comply, during the Term, with all Applicable Laws, and applicable rules, regulations, orders, codes, and charters, including competition, sanctions, environmental, labor and ethics rules, and Cognite's Code of Conduct (available here: https://www.cognite.com/en/company/corporate-ethics) and Supplier Declaration (available here: https://www.cognite.com/en/company/legal/cognite-supplier-declaration )
b. In particular, and without limiting the generality of the foregoing, the OEM shall ensure that the sale of End-Customer Subscriptions and entering into End-Customer Agreements do not violate Applicable Laws and ensure that its End-Customers are not subject to the Norwegian, EU, UK, or US sanctions. Any breach of this obligation by the OEM shall entitle Cognite to terminate the OEM Addendum with immediate effect.
c. The governing law and dispute resolution provisions set out in the MSPSA Sections 13.2 (Governing law) and 13.3 (Dispute resolution) shall apply to this OEM Addendum.
9.2 Export compliance
a. The Cognite Technology may be subject to export laws and regulations of the United States of America (“US or United States”) and other jurisdictions. Cognite and the OEM each represent that it is not included on any U.S. government denied-party list. The OEM 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 End-Customer is located or from which the End-Customer accesses or uses Cognite Technology. The OEM shall not permit any End-Customer to access or use any Cognite Technology in a United States-embargoed country or region or in violation of any United States export laws or regulations.
b. The OEM 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.
10. MISCELLANEOUS
a. Cognite shall have the right, to the extent legally permissible, to review the OEM’s books and records, including in relation to compliance matters and the right to audit, examine, or make copies of any documentation or electronic information relating to the operations, records, reports, and supporting documents of the OEM, including to verify whether OEM is in compliance with its obligations under Sections 2, 3 and 5. Annual audits, if requested by Cognite, will be performed by an independent auditor of international repute, but, unless otherwise agreed by the Parties, the auditor shall not be the external auditor for either Party.
b. Cognite's audit rights pursuant to this Section 10(a) shall remain for ten (10) years after the termination of this OEM Addendum.
c. It is expressly agreed that it is not the purpose or intention of this OEM Addendum to, and nothing in this OEM Addendum shall be construed to, create the relationship between the Parties of partnership, principal and agent, or fiduciary and beneficiary. Neither Party shall have the right or authority to enter into any contract, commitment, or agreement in the name or on behalf of the other Party. The liability of the Parties hereunder shall be several and not joint or collective and each Party shall be responsible only for its individual obligations hereunder.
d. This OEM Addendum is exclusively for the benefit of the Parties and shall not be construed as conferring, either directly or indirectly, any rights or causes of action upon third parties.
e. The following provisions of this OEM Addendum shall survive termination or expiration of this OEM Addendum: Section 2.1 (Restrictions), Section 6 (IPR), Section 7 (Indemnities and Limitation of Liability), Section 8.3 (Effects of termination), Section 9 (Compliance with Law), and Section 10 (Miscellaneous). The confidentiality obligations set out in the MSPSA Section 9 (Confidentiality) shall continue to apply in accordance with their terms.
11. DEFINITIONS
In this OEM Addendum:
“Agreement” shall have the meaning ascribed to the term in the Subscription Order Form.
"Cognite One Support SLA" means Cognite's service level agreement available at https://www.cognite.com/en/company/legal/cognite-core-support-sla, as amended from time to time.
"Cognite Trademarks" means any registered trademark, logo, or design held by Cognite during the Term, unless otherwise notified by Cognite to the OEM.
"Data Processing Agreement" means Cognite's standard data processing agreement (available at https://content.cognite.com/en/legal/data-processing-agreement), as amended from time to time.
"End-Customer" means any Person entering into an End-Customer Agreement with OEM.
"End-Customer Agreement" means an agreement between the OEM and an End-Customer for an End-Customer Subscription to an OEM Product.
"End-Customer Subscription(s)" means the time-limited, non-exclusive, non-sublicensable, non-transferrable, revocable right to access and use an OEM Product in accordance with the terms and conditions of an End-Customer Agreement.
"EULA" means Cognite's standard end-user license agreement (available at https://content.cognite.com/en/legal/end-user-license-agreement-eula), as amended from time to time.
“MSPSA” shall have the meaning ascribed to the term in the Subscription Order Form.
“OEM” means the legal entity identified as such (or as the “Customer”) in the Subscription Order Form.
"OEM Products" means any result of technology development made solely by the OEM which utilizes, embeds and/or is based on the Subscription Items, but excluding any Improvements.
"Person" means any individual, corporation, joint stock company, limited liability company, partnership, joint venture, association, trust, unincorporated organization, government, governmental agency, authority, institution, or ministry, or other entity.
“Subscription Order Form” means the Subscription Order Form signed by Cognite and the OEM.
"Resell" means advertise, make known in the market, promote, demonstrate, and offer for sale, or enter into agreements to sell, and “Resale”, “Reselling”, “Resold”, and other cognates shall be construed accordingly.
"Term” means the time period defined as the Subscription Period (including any Initial and Renewal Subscription Period) in the Subscription Order Form.
"Territory" means worldwide.