EU Data Act Addendum
This document constitutes an addendum to and an integral part of the Agreement entered into between Cognite and the Customer for the Subscription Items agreed to be provided as further specified in the relevant Order Form (the “EU Data Act Addendum”). This EU Data Act Addendum applies exclusively to Customers domiciled within the European Union (EU).
In case of conflict between the other documents that jointly constitute the Agreement and this EU Data Act Addendum, the latter shall prevail, except that the Order Form shall prevail over this EU Data Act Addendum.
1. Introduction
Under Chapter VI of Regulation (EU) 2023/2854 (the "EU Data Act"), customers of data processing services in the EEA have a statutory right to switch, at any time, to a comparable service offered by another provider or to an on-premises ICT infrastructure. This EU Data Act Addendum contractually implements that right within the context of the Subscription Agreement and specifies the parties’ respective rights and obligations in compliance with the EU Data Act.
2. Switching Process
Should the Customer elect to exercise its right to switch under the EU Data Act, it shall provide Cognite with a two (2) months' prior written notice of its intent. Upon Cognite's receipt of such notice, a mandatory transitional period of thirty (30) calendar days shall commence (“Transitional Period”). However, should the Switching process prove to be technically complex, Cognite reserves the right to extend the Transitional Period as reasonably necessary upon providing justification to the Customer. This period may be extended for up to a total of seven (7) months.
During the transitional period, Cognite will provide reasonable assistance to facilitate the export of Exportable Data through its standard automated tools, APIs, and documentation. An exhaustive specification of all categories of data that can be ported is provided in Attachment 1.
The Customer is solely responsible for the successful export, validation, and implementation of all Exportable Data into the systems of the new destination provider or its on-premises infrastructure. Cognite makes no warranties regarding the compatibility of the Exportable Data with any third-party systems. The Customer and its designated third parties must cooperate in good faith with Cognite to ensure an effective Switching process.
The Customer represents and warrants that, prior to exercising any Switching rights under this EU Data Act Addendum, it has obtained and will maintain all necessary rights, consents, and permissions to request the Switching and to export, transfer, and process the Exportable Data as contemplated herein. The Customer further warrants that the Switching will not infringe any third-party rights or violate any applicable laws or contractual obligations.
3. Switching Charges and Early Termination Fees
In accordance with the EU Data Act, Cognite may apply Switching charges (including data egress fees) which will not exceed the costs incurred by Cognite that are directly linked to the Switching process. These charges will be phased out as required by law.
If the Customer initiates a Switching process that results in the termination of the Subscription Agreement (and/or the Order Form) before the end of its current Subscription Term, any fees already paid for that term are non-refundable.
Furthermore, if the termination occurs during a Subscription Term that has not been fully prepaid for its entire duration, the Customer will be required to pay an early termination fee equal to the total fees payable for the remaining of the agreed term. For the avoidance of doubt, this early termination fee also includes the full fee for any automatically renewed term that the Customer is committed to but has not yet paid for.
Should the Switching process require the Customer's continued access to the Subscription Items beyond the expiration of the agreed Subscription Term, such extended access will be subject to additional fees. These fees will be calculated on a pro-rata basis, corresponding to the Subscription fees applicable during the original term, for the duration of the extension.
4. Post-Switching Data Handling
Following the end of the Transitional Period, the Customer will have a final thirty (30) calendar day period to retrieve any remaining Exportable Data from the service environment (the "Data Retrieval Period").
Upon the conclusion of the Data Retrieval Period, Cognite will permanently erase all Exportable Data related to the Customer's account and will have no further obligation to store or provide access to it.
5. Liability
Cognite shall not be liable for any damages, losses, costs, or expenses arising out of our in connection with the Switching (and/or deletion requests), including but not limited to system downtime, compatibility issues, loss of Exportable Data or any other disruptions or failures that may occur during or as a result of the Switching.
6. Severability
If any provision of this EU Data Act Addendum is found to be invalid, illegal, or unenforceable under applicable law, such provision shall not be void in its entirety but shall be interpreted, modified, or limited to the minimum extent necessary to comply with applicable law and to give effect, as closely as possible, to the original intent of the parties. The remaining provisions shall remain in full force and effect.
7. Termination
The Subscription Agreement, or the relevant part of the Subscription Agreement concerning the switched services, will be considered terminated upon the successful completion of the Transitional Period. Cognite will provide the Customer with a formal notification confirming the termination.
8. Definitions
“Exportable Data” means the input and output data, including metadata, generated by the Customer’s use of the service, excluding any of Cognite's or third-party intellectual property, trade secrets, or data related to the internal functioning of the service.
“Switching” means the process of moving from a Cognite data processing service to another service of the same type offered by a different provider or to an on-premises ICT infrastructure.
Capitalized terms used and not defined herein shall have the meaning as set out in the Subscription Agreement and the EU Data Act, as applicable.