Consultancy Services Frame Agreement

CONSULTANCY SERVICES FRAME AGREEMENT

This Consultancy Services Frame Agreement is entered into by and between:

i) Consultant, which shall be indicated in the accompanying Consultancy Order Form, (“Consultant”); and

ii) Cognite AS (company registration number 918 274 758), a company incorporated and existing under the laws of Norway, having its registered domicile in Oksenøyveien 10, 1366 Lysaker, Norwayand it’s affiliates (“Cognite”).

This Consultancy Services Frame Agreement and all referenced documents, including the Code of Conduct and Supplier Declaration (the “CSA”), set out the terms and conditions for Consultant’s provision of Consultancy Services to Cognite during the Term agreed under an executed Consultancy Order Form.

This CSA and the Consultancy Order Form(s) constitute the “Consultancy Agreement” between Cognite and the Consultant. Defined terms used in the Consultancy Agreement are either set out in the Consultancy Order Form or in Section 14 below.

1. GENERAL PROVISIONS

1.1 Scope of the Consultancy Services

The Consultant shall perform work as set out and further described in the Consultancy Order Form and its Appendix A (together referred to as the "Consultancy Services").

The Consultant shall not have authority or claim to have authority to bind Cognite unless the Consultant is specifically authorized to do so by Cognite in writing.

1.2 Obligations on the Consultant

The Consultant shall comply with the following obligations:

i. cooperate with and attend to the interests of Cognite in good faith;

ii. give priority to the Consultancy Services and proffer and allocate such resources as reasonably required to perform the Consultancy Services in a professional and prudent manner;

iii. perform the Consultancy Services in accordance with the requirements in this Consultancy Agreement, including the Consultancy Order Form, to the good professional standard;

iv. warrant that the Consultant’s personnel have the competencies as stated in the CV(s) as presented to Cognite;

v. ensure that the employment of personnel performing the Consultancy Services is in accordance with Applicable Laws;

vi. obtain and maintain, in due time, such approvals and permits as are necessary for the performance of the Consultancy Services;

vii. ensure that all software and storage media used in the performance of the Consultancy Services is free of any malicious software, excluding the ones provided by Cognite;

viii. keep records of all Consultancy Services and provide information related to the Consultancy Services in accordance with Applicable Law and as Cognite may reasonably require;

ix. without delay inform Cognite in writing regarding changes pertaining to the personnel, including but not limited to terminations, vacation and planned leave of absence;

x. without undue delay, give notice to Cognite regarding circumstances that that the Consultant understands, or ought to understand, may be of relevance to the performance of the Consultancy Services, included but not limited to expected delays.

Cognite shall be entitled to check and verify work performed by the Consultant.

1.3 Cognite's cooperation

Cognite shall cooperate with the Consultant for the performance of the Consultancy Services and provide all reasonable assistance in relation thereto. Further, Cognite shall give notice to the Consultant regarding circumstances that Cognite understands, or ought to understand, may be of relevance to the performance of the Consultancy Services, included but not limited to expected delays.

1.4 Personnel

Prior to performance of the Consultancy Services, the Consultant shall conduct thorough background checks of the personnel that will perform the Consultancy Services on behalf of the Consultant, to verify that the personnel have the required expertise and experience. Should it later turn out that the personnel do not have the required expertise and experience as set forth in the CV, the Consultant shall immediately upon notice from Cognite, and at no additional cost for Cognite, offer a replacement of personnel with the required expertise and experience.

2. FEES AND PAYMENT

2.1 Consideration for the Consultancy Service

Cognite shall pay fees to the Consultant in accordance with the pricing and payment terms agreed in the Consultancy Order Form.

2.2 Fee basis

The Consultant shall provide the Consultancy Services on the basis of time (subject to the hourly rates specified in Annex 1) and materials, in each case as specified in the Consultancy Order Form.

2.3 Expenses

Cognite shall not reimburse Consultant for travel, travel time or subsistence costs incurred in connection with the performance of the Consultancy Services, unless otherwise has been agreed in the Consultancy Order Form

2.4 Invoicing

The Consultant shall specify invoices in such a manner that is set out in the Consultancy Order Form. All invoices relating to hours spent on an ongoing basis, shall be accompanied by a detailed specification of the hours accrued. Disbursements and other expenses shall be specified separately.

2.5 Late payment interest

If Cognite fails to make payment by the agreed time, the Consultant shall be entitled to claim simple interest at the rate of 5 % per annum in respect of such unpaid amount.

2.6 Price adjustment

The price may be adjusted as per January 1st of every calendar year, with an amount that shall not exceed the increase in the Norwegian consumption price index. Price adjustments can only be made for agreements entered into prior to February 1st the previous year.

3. INSURANCE, TAXES, ETC.

3.1 Insurance

The Consultant is responsible for subscription and coverage of all costs in connection with all necessary insurances pursuant to this Consultancy Agreement and the Consultant’s business activities. The Consultant shall maintain insurance policies that are sufficient to meet such claims from Cognite as may arise on the basis of the risks and responsibilities assumed by the Consultant pursuant to this Consultancy Agreement, within the limits defined by ordinary insurance terms and conditions.

3.2 Tax

The Consultant is solely responsible for accounting, deducting and payment of all income taxes, social security fees, corporation tax and any other taxes, tariffs, fines or charges levied against the Consultant in connection with the services under this Consultancy Agreement.

Cognite shall have no liability for the payment of salaries, insurances, per diem allowances, holiday allowance, personal taxes and/or social security payments to the Consultant.

4. WARRANTIES

The Consultant hereby makes the following representations and warranties as of the Effective Date:

• that the Consultancy Services will be performed in accordance with Section 1.2 (ii), (iii), (iv) and (vii);
• it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized;
• it has all requisite power and authority to enter into this Consultancy Agreement and to perform its obligations hereunder, and the execution and delivery of this Consultancy Agreement and the performance thereof have been duly authorized, executed, and delivered by all necessary corporate action; and
• that the personnel have the competencies as stated in the CV(s) as presented to Cognite, and as updated from time to time.

5. RESULTS AND IPR

5.1 Background IPR

Each Party retains all right, title, and interest in and to its Background IPR, and neither Party shall acquire any rights or licenses in or to the other Party's Background IPR unless otherwise explicitly set forth in the Consultancy Order Form.

5.2 Results:

Cognite shall be the sole and exclusive owner of all right, title and interest in and to all IPR developed under this Consultancy Agreement. The Consultant shall obtain necessary agreements and documentation to transfer legal and beneficial ownership in the IPR to Cognite in accordance with this Consultancy Agreement.

6. CONFIDENTIALITY

All Confidential Information exchanged or otherwise transferred between Cognite and the Consultant shall be treated as confidential and shall not be disclosed by the receiving Party to any third party, or used by the receiving Party for any other purpose than for which it is disclosed, without the written consent of the disclosing Party, unless such Confidential Information:

a) is already known by rightful means to the receiving Party at the time the information was received;

b) is or becomes part of the public domain other than through a fault of the receiving Party;

c) is received from a third Party without an obligation of confidentiality of which the receiving Party was or should have been aware;

d) is required 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 6 (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.

Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its directors, officers, employees, advisors and its affiliates ("Permitted Recipients") with a strict need to know such Confidential Information in connection with the performance of the Consultancy Agreement. The receiving Party shall procure that all Permitted Recipients who receive Confidential Information are subject to restrictions on use and non-disclosure obligations no less strict than those set forth in this clause. The receiving Party shall be liable for any breach of this Agreement by the Permitted Recipients.

Without prejudice to the foregoing, the receiving Party may disclose Confidential Information to a third party, to the extent necessary for the performance of the Consultancy Services, 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 6.

The receiving Party shall ensure that Confidential Information is handled securely. Electronically stored information shall be inaccessible to unauthorized personnel.

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

7. INFORMATION SECURITY, PERSONAL DATA PROTECTION AND AUDIT RIGHT

7.1 Information security

The Parties shall take appropriate measures to address the information security requirements associated with the performance of each Party's obligations pursuant to this Consultancy Agreement, including but not limited to ensure the confidentiality of both Parties' and Customers' data. Both Parties shall take appropriate measures to protect against unintended modification and deletion of data, and against virus and other malware attacks.

7.2 Personal data protection

If applicable, the Data Processing Agreement shall apply for any data processing on behalf of Cognite.

7.3 Audit right

Cognite may, upon prior written notice, perform an inspection of the Consultant's facilities to verify whether the Consultant is in compliance with Section 6 (Confidentiality), Code of Conduct and Supplier Declaration. If required by the Consultant, such inspection shall be performed by a third party vendor, who shall be bound by confidentiality obligations at least as onerous as set out in Section 6 and shall only be permitted to share information with Cognite to the extent required to verify whether Consultant is in compliance with this clause. If the inspection shows that Consultant is not in compliance therewith, the Consultant shall cover the costs of the inspection. Otherwise, the Parties shall cover its own costs accrued in connection with the inspection.

8. REMEDIES, INDEMNIFICATION AND LIMITATION OF LIABILITY

8.1 Remedies

In the event of breach of this Consultancy Agreement, Cognite may:

i. require that the Consultant re-performs the Consultancy Services; and/or

ii. require that the Consultant replaces personnel who failed to perform the Consultancy Services as mentioned in the Consultancy Order Form.

If the Consultant has not succeeded in remedying a breach, despite repeated attempts, Cognite may claim a proportional reduction in the contract price. The price reduction shall compensate for the reduced value of what has been delivered and shall be independent of any damages.

In the event of a material breach of this Consultancy Agreement, Cognite may terminate the Consultancy Agreement in accordance with clause 9.4.

8.2 Indemnification

The Consultant shall indemnify Cognite from and against any claim concerning (i) personal injury, disease or loss of life of any employee of the Consultant; and (ii) loss of or inability to recover or damage to property of the Consultant, arising out of or in connection with the Consultancy Agreement. This shall apply regardless of cause, whether through negligence and/or breach of duty (statutory or otherwise) of any of Cognite's affiliates that arises out of or in connection with the Consultancy Agreement.

Cognite shall indemnify the Consultant from and against any claim concerning (i) personal injury, disease, or loss of life of any employee of Cognite; (ii) loss of or inability to recover or damage to property of Cognite, arising out of or in connection with the Consultancy Agreement. This shall apply regardless of cause, whether through negligence and/or breach of duty (statutory or otherwise) of any of the Consultant’s affiliates that arises out of or in connection with the Consultancy Agreement.

8.3 IPR Indemnification

The Consultant shall indemnify Cognite against any claim from any third party that the normal use of the Results infringes such third party's IPR.

8.4 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.

8.5 Limitation of liability

In no event shall a Party be liable towards the other Party under or in connection with this Consultancy Agreement, whether in tort, contract, or otherwise for:

a) Special, indirect consequential, exemplary, incidental, or punitive damages or losses; or

b) Loss of production, lost earnings or revenue of any kind, loss of anticipated cost savings, loss related to third party claims or loss of profit or anticipated profit, in each case whether indirect or not.

The aggregate liability of each Party for loss arising out of or in connection with the Consultancy Agreement shall not exceed the amounts agreed to be paid by Cognite in the relevant Order Form, excluding value added tax.

The limitations set out in this Section 8.5 shall not apply in case of breach of Section 6 – Confidentiality (to the extent such breach is not related to personal data obligations and/or data protection legislation) or in the event of gross negligence or willful misconduct of the defaulting Party or anyone for whom it is responsible.

9. DURATION, SUSPENSION, CANCELLATION

9.1 Duration

The CSA enters into force upon signature of the first executed Consultancy Order Form and shall remain in force until terminated by the Parties. The Parties may agree to extend this CSA. Such agreement shall be in place 30 days prior to the expiry date.

Consultancy Order Forms signed prior to the expiry of the CSA shall still be subject to the CSA terms and conditions until completion (“Term”).

9.2 Temporary suspension of the Consultancy Services

Cognite may at its discretion temporarily suspend the Consultancy Services under a Consultancy Order Form with a minimum of five (5) calendar days’ written notice to the Consultant. Cognite will specify from which date the Consultancy Services is to be suspended, and when it is planned to be resumed.

In the case of temporary suspension, Cognite shall reimburse:

(a) Reasonable documented costs incurred by the Consultant in relation to the reassignment of personnel;

(b) Other direct costs incurred by the Consultant as a result of the suspension

9.3 Cancellation

Notwithstanding anything to the contrary in the Consultancy Agreement, a Consultancy Order Form may be cancelled by Cognite by giving fourteen (14) days’ written notice. In the case of cancellation prior to the completion of the Consultancy Services under a Consultancy Order Form, Cognite shall pay compensation to the Consultant for the work already performed at the time of cancellation in accordance with the prices agreed in the applicable Consultancy Order Form. If a Customer cancels or delays the relevant engagement with Cognite, then Cognite may cancel or delay the Consultancy Services under the Consultancy Order Form by written notice to the Consultant on the same terms as applicable between the Customer and Cognite.

9.4 Termination

Each Party may terminate this CSA, including all licenses granted herein, by thirty (30) days’ prior written notice to the other Party in the following circumstances:

the other Party becomes insolvent or enters into insolvency or bankruptcy proceedings; or

upon the material failure of the other Party to observe, keep, or perform any of the covenants, terms, or conditions herein (including the failure to pay sums owed to the other Party when due), if such default continues for sixty (60) days after written notice by the other Party with reference to this Section 9.4.

Notwithstanding the foregoing, Cognite shall have the right to terminate this CSA with immediate effect upon the material failure of the Consultant to observe, keep, or perform any of the covenants, terms, or conditions herein related to the use or disclosure of Confidential Information or compliance with Section 10.

Termination of the CSA under this Section 9.4 will include termination of the Consultancy Order Forms in force. Notwithstanding the foregoing, a Party may upon the occurrence of the circumstance(s) mentioned in Section 9.4 first paragraph item b), choose in its sole discretion to terminate only the Consultancy Order Form(s) affected by the material failure of the other Party, in which case this CSA and other Consultancy Order Forms not comprised by the termination shall continue in force.

10. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS

10.1 General

Each Party shall comply, and cause its personnel, agents, and subcontractors to comply, during the Term, with all Applicable Laws, rules, regulations, orders, codes, and charters, including competition, sanctions, environmental, labor and ethics rules, and Cognite's Code of Conduct and Supplier Declaration.

10.2 Export compliance

The Parties’ deliveries under this Consultancy Agreement may be subject to export laws and regulations of the United States and/or other jurisdictions. Cognite and the Consultant each represents that it is not included on any U.S. government denied-party list. The Consultant shall not permit any user to access or use any Consultancy Services in a United States' embargoed country or region or in violation of any United States' export laws or regulations.

11. GOVERNING LAW AND DISPUTE RESOLUTION

11.1 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.

11.2 Dispute resolution

If at any time a dispute, controversy, or claim arising out of or in connection with this MSA, its interpretation, construction or performance, or the breach or enforcement thereof, or any claims or disputes that in any way concern the conduct of any Party in connection with this MSA or otherwise (whether in contract, in tort, or based on statute or regulation) shall arise, then any Party shall give notice to the other Party in writing of the existence of such dispute, controversy, or claim, specifying its nature and the point of issue. The Parties shall have sixty (60) days from the date of such notice, or such later period as may be agreed, to resolve such dispute, controversy, or claim amicably.

Disputes, controversies, or claims among the Parties that remain unresolved at the expiration of the period specified in Section 12.3 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. The arbitral proceedings and the arbitral award shall be kept strictly confidential. This confidentiality obligation shall cover all information disclosed in the course of such arbitral proceedings. This obligation to observe confidentiality shall continue ten (10) years after the termination of this Subscription Agreement, or ten (10) years after the case is finally settled by an arbitral award, whichever is the latest.

12. MISCELLANEOUS

12.1 Notice

The contact details to which the Consultant shall direct notices under this Consultancy Agreement, are set out in the Consultancy Order Form.

12.2 Force Majeure

If an extraordinary situation should arise which is outside the control of the Parties, and which makes it impossible for a Party to fulfil its obligations under one or more Consultancy Order Forms (“Force Majeure”), the affected Party shall notify the other Party of this as soon as reasonably practicable. Force Majeure shall include war, strike, lockout, riot, epidemic, pandemic, and natural catastrophes such as flood, earthquake, hurricane, volcanic eruption, and sandstorm. The obligations of the affected Party shall be suspended for as long as the Force Majeure prevails. The corresponding obligations of the other Party shall be suspended for the same period. Where a Force Majeure has occurred, the other Party may only terminate the affected Consultancy Order Form(s) (i) with the consent of the affected Party, or (ii) if the Force Majeure lasts or is expected to last for more than ninety (90) calendar days from the date on which the situation arose, and in such case only with fifteen (15) calendar days’ notice. Each of the Parties shall cover their own costs associated with the termination of the Consultancy Order Form(s). Neither Party shall be entitled to bring a claim against the other as a consequence of the termination of Consultancy Order Form(s) in accordance with this provision.

12.3 Entire Agreement

This Consultancy Agreement constitutes the entire agreement between the Parties in respect of the subject matter contained herein and supersedes any and all prior agreements and understandings between the Parties with respect to the subject matter hereof. Any modification hereto must be made in writing and signed by both Parties.

12.4 Severability

If and to the extent that any provision of this Consultancy Agreement is held to be inconsistent with any Applicable Law or regulation, invalid, or unenforceable, then such provision shall (to the extent of such inconsistency, invalidity or unenforceability) be of no effect and shall be deemed not to be included in this Consultancy Agreement but without invalidating any of the remaining provisions of this Consultancy Agreement.

12.5 Assignment

Cognite may assign this Consultancy Agreement within the Cognite group companies to the extent permitted by Applicable Laws, or to other third parties if the Consultant has given its written consent to the assignment, such consent shall not be unreasonably withheld. The Consultant may not assign this Consultancy Agreement, unless agreed between the Parties in writing.

12.6 Relationship

Nothing in this Consultancy Agreement shall be construed to create the relationship between the Parties of partnership, principal and agent, or fiduciary and beneficiary. Neither Party shall have the right or authority to enter into any contract, commitment, or agreement in the name or on behalf of the other Party. The Parties are independent contractors and principals for their own accounts.

13. STRUCTURE

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

i) the executed Consultancy Order Form(s), including, if applicable, its Appendix A;

ii) this Consultancy Services Frame Agreement (including the Code of Conduct and Supplier Declaration).

In case of conflict between the documents (i) – (ii) above, the documents shall prevail in the order they are listed.

14. DEFINITIONS

“Applicable Laws” mean all applicable laws, regulations, requirements or orders, which are issued by any governmental body with legal authority to exercise legislative, judicial, regulatory or administrative functions relevant to respective Party’s business.

“Background IPR” means any IPR conceived, designed, created, developed, reduced to practice, or otherwise acquired or controlled by Cognite or the Consultant prior to, or otherwise outside of and unrelated to the scope of this Consultancy Agreement.

“Code of Conduct” means Cognite’s Code of Conduct available here
"Cognite" means the Cognite entity entering into this CSA.

"Confidential Information" means all information, whether in a tangible or intangible form, and whether or not designated as proprietary or confidential, of a proprietary or confidential nature disclosed by one Party or its representatives to the other Party in connection with this Consultancy Agreement, including, without limitation, procedures, documentation, marketing data, trade secrets, know-how, technical data, software, source codes, valuations, costs, rates, and prices and any other information of a proprietary or confidential nature relating to the disclosing Party or its business, as well as any information created or derived from any such information, irrespective of disclosing medium and storage. The Confidential Information may be labelled as "confidential", "proprietary", or similar without this being an explicit requirement for protection as Confidential Information.

“Consultant” means the legal entity that has entered into this CSA.

"Consultancy Services" means the work as set out and further described in the Consultancy Order Form and its Appendix A.

"Customer" means any entity entering into an agreement with Cognite for which Cognite utilizes the Consultancy Services.

"Data Processing Agreement" (DPA) means the Data Processing Agreement governing the Consultant’s processing of personal data on behalf of Cognite, which is entered into by the Parties if required under Applicable Law.

"Force Majeure" has the meaning set out in Section 12.3.

“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.

"Key Personnel" means the personnel stated as Key Personnel in any Consultancy Order Form or Appendix A.

"Results" means any results arising out of the performance of the Consultancy Services, including but not limited to, the system and 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 to any of the aforementioned.

"Supplier Declaration" means Cognite's Supplier Declaration available here.

"Term" has the meaning set out in Section 9.1.