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Professional Services Agreement

LAST REVIEWED AND UPDATED ON MAY 9, 2023
 
This Professional Services Agreement (the “PSA”) and the referenced Data Processing Agreement are an integrated part of the Service Order Form entered into between Cognite and the Customer (collectively referred to as the “Service Agreement”). Capitalized terms used in this PSA shall have the meaning as set out in the Service Order Form and in Section 14 below.
 
The Service Agreement is limited to Professional Services performed under each Service Order Form and does not convey any right to access and use any subscription or online services made available by Cognite, which are governed by one or more separate agreements.

1. Delivery, signoff, and changes

1.1 Delivery of the Professional Services

Cognite will provide the Professional Services in accordance with this PSA and the applicable Service Order Form and any Service Order Form Amendment.
 
Upon completion of each Solution and/or Consultancy Service in accordance with the Service 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.

1.2 Signoff of Solution and Consultancy Services

If the Parties, in the Service 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 Service Order Form ("Signoff"), the Customer shall provide Cognite with the Signoff in accordance with this Section 1.2 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 Service 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 Service 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 Service 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 Service 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 9.2, as such failure shall be considered a material breach.    

1.3 No Effect on Warranty Remedies

Signoff of a Solution or Consultancy Services shall not affect the Customer’s rights or remedies under Section 8 below.

1.4 Changes to the Professional Services

If at any time during the Term the Customer wishes to change or extend the Professional Services beyond the scope defined in the Service Agreement and Cognite accepts such changes, such changes shall be defined in a Service Order Form Amendment, signed by an authorized representative of both Cognite and the Customer.
 
The Customer agrees that any change or extension of the Professional Services might result in changes of the estimated fee and/or require additional resources from Cognite subject to similar or different rates than agreed on in the Service Order Form.

2. Performance

Cognite shall cooperate with the Customer in good faith during the Term of the Service Agreement.
 
Cognite shall give priority to the Professional Services and shall allocate such resources as reasonably required to perform the Professional Services in a professional and prudent manner.
 
Cognite shall give notice to the Customer regarding circumstances that may affect the performance of the Professional Services, including but not limited to expected delays.
 
Cognite shall ensure that the employment of personnel performing the Professional Services is in accordance with Applicable Laws.
 
Cognite shall obtain and maintain, in due time, such approvals and permits as are necessary for the performance of the Professional Services.
 
Cognite will exercise due diligence in accordance with industry standards to avoid and prevent malicious software in software and storage media used in the performance of the Professional Services.

3. Customer cooperation

The Customer shall contribute as set out in the Service Order Form or a Service Order Form Amendment, and otherwise as reasonably necessary and in good faith to enable Cognite to perform the Professional Services.
 
The Customer shall notify Cognite regarding circumstances the Customer ought to understand may affect the ability of Cognite to perform the Professional Services.
 
The Customer acknowledges that Cognite’s ability to perform the Professional Services depends on the Customer satisfactorily complying with its obligations under the Service Agreement. Should the Customer fail to perform its obligations in a timely manner, Cognite shall not be liable for any delay, loss or damage, cost increase, or other consequences arising from such failure. If such failure by Customer continues after Cognite has notified the Customer of the failure, and the failure impacts Cognite’s ability to perform or complete the Professional Services, Cognite shall:
  1. In case of fixed fee engagements, be entitled to the fixed fee set out in the Service Order Form regardless of whether the Professional Services are completed at the end of the relevant Service Period. Cognite may at its sole discretion agree to complete the Professional Services after expiry of the relevant Service Period subject to payment by Customer for all Professional Services performed after the expiry of the relevant Service Period on a time and material basis at Cognite’s then-current rates, to be invoiced monthly in arrears; or
  2. In case of non-fixed fee engagements (invoiced based on time and material), Cognite shall be entitled to invoice Customer for the Professional Services agreed to be performed during the relevant Service Period in accordance with the payment terms and billing cycle set out in the Service Order Form regardless of whether Cognite has been prevented from performing the Professional Services or parts thereof due to Customer’s failure as set out above.

4. Fees and payment

4.1 Fees for the Professional Services

For Professional Services performed under the Service Agreement, the Customer shall pay fees to Cognite in accordance with the pricing and payment terms agreed in the Service Order Form. If no rates are specified in the Service Order Form, Cognite's standard rates in effect at the time the Service Order Form was issued, shall apply. All fees are provided exclusive of Taxes. 
 
Unless otherwise set out in the Service Order Form, payments are due thirty (30) calendar days after receipt of correct invoice.
 
The Customer acknowledges and agrees that all fees and charges payable under the Service Agreement shall be paid in the currency stated in the Service Order Form. The Customer shall bear full responsibility for any currency exchange costs, fees, or fluctuations related to the conversion of their local currency to the currency stated in the Service Order Form for the purpose of making payments under this Service Agreement.

4.2 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 Service 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 for non-fixed fee engagements update the Customer on the fees accrued under the Service Agreement.

4.3 Expenses

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 Service Order Form.
 
Travel time shall be invoiced at 50% of the ordinary hourly rate. Estimates provided regarding travel and subsistence cost shall not be exceeded, unless accepted by the Customer in writing or if due to changes or extensions in the Professional Services ordered by the Customer.

4.4 Late payment interest

If the Customer fails to make any payment when due, then, without limiting Cognite’s remedies under Section 4.5 and Section 9, 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 4.4 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.

4.5 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 Service Agreement shall terminate 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.
 
Such termination 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.

4.6 Price increase

Cognite shall be entitled to adjust its rates each calendar year. In case of such price increase, the 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.

4.7 Taxes

The Customer and Cognite shall each be responsible for their own Taxes in connection with the Service Agreement, except as set out below or elsewhere in the Service 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 Service 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 Service 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 Service 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 Service Agreement outside the jurisdiction where Cognite is resident for tax purposes unless such taxes are covered by the preceding paragraphs of this Section 4.7. 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 Service 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 fees shall be grossed up in accordance with the third paragraph of this Section 4.7. 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.

4.8 External invoicing systems 

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 Service Agreement.
 
The Parties explicitly agree that Section 4.1 above shall apply and have priority regardless of any arrangements between Cognite and Customer regarding the use of invoicing system. The Service Agreement shall prevail over any terms and conditions associated with any third-party invoicing systems.

5. Personal data

If Cognite processes personal data on behalf of the Customer in the performance of the Professional Services, the Customer acknowledges that Cognite's Data Processing Agreement shall apply for such data processing (available at https://content.cognite.com/en/legal/data-processing-agreement, as amended from time to time).
 
For more information about how we process personal data, please read our Customer and Partner Privacy Notice (available at https://www.cognite.com/en/policy.

6. IPR

6.1 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 Service Agreement.

6.2 License Grant to Cognite

The Customer accepts to, and does hereby, grant to Cognite a license to use the Customer´s Background IPR as may be required for Cognite to perform the Professional Services under the Service Agreement.

6.3 Results

Subject to Sections 9.2 and 9.4 and payment of fees due under the Service Agreement, the Results, except for any results of further development of Cognite Data Fusion, 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, cf. Section 7, unless otherwise agreed in writing.
For the avoidance of doubt, Cognite shall be the sole owner, and retain all right, title, and interest in any result of further development of Cognite Data Fusion.

7. Confidentiality

Except as explicitly stated in the PSA, all Confidential Information exchanged or otherwise transferred between Cognite and the Customer 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 or as otherwise agreed in the Service Agreement, without the written consent of the disclosing Party, unless such Confidential Information:
  1. is already known by rightful means to the receiving Party at the time the information was received;
  2. is or becomes part of the public domain other than through a fault of the receiving Party;
  3. is received from a third Party without an obligation of confidentiality of which the receiving Party was or should have been aware;
  4. is required to be disclosed by Applicable Laws, governmental, or other public authority regulation or decision, or ordered by a court of law.
Where the circumstances set out in Section 7 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 Professional Services, provided that the receiving Party shall procure that such third party shall be bound by such confidentiality obligations at least as onerous as set out in this Section 7, and (ii) Cognite shall be entitled to name the Customer as a user of the Professional Services 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 Service Agreement.

8. Warranties, indemnification and limitations of liability

8.1 Warranties

Cognite warrants that it shall provide the Professional Services with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the Professional Services.
 
Unless specifically stated in the Service Order Form, Cognite does not make warranties of any kind, express, implied, or statutory with regard to 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.

8.2 Remedies

In the event of a breach of warranty that is not attributable to Customer’s delay or failure to comply with its obligations under the Service Agreement, 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.
 
The remedies set out in this Section 8.2 shall be the Customer's exclusive remedies for breach of the warranty. 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 the Service Agreement, within thirty (30) days of performance of such Professional Services.

8.3 Mutual indemnification

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

8.4 IPR indemnification

Cognite shall indemnify the Customer against any Losses resulting from a claim from any third party alleging that use of the Results in the Customer’s usual course of business 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 otherwise than in accordance with the terms of the Service Agreement.
 
The foregoing indemnification obligation shall not apply to claims caused by or arising as a result of the use or combination of the Results or any part thereof with software, hardware, data, or processes not provided by Cognite, if the Results or use thereof would not cause the claims without such combination.
 
If the Results infringe any third party's IPR, Cognite shall apply commercially reasonable efforts to cure the infringement without undue delay. Until any infringement is resolved, Cognite shall be entitled to make the part of the Results in question unavailable to the Customer.
 
The foregoing states the entire liability of Cognite to the Customer for the infringement of IPR of any third party. This Section 8.4 regarding infringement applies correspondingly should any delivery of the Customer, infringe any third party's IPR.

8.5 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.

8.6 Limitation of damages

In no event shall a Party be liable towards the other Party under or in connection with this Service Agreement or the subject matter contemplated hereunder, including, without limitation, the Professional Services, 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 data and consequences hereof, loss related to third party claims, or loss of profit or anticipated profit, in each case whether indirect or not.
The aggregate liability of each Party arising out of or in connection with the Professional Services and the Service Agreement shall not exceed 50% of the fees paid by the Customer for the Professional Services during the six (6) 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 8.6 shall not apply in relation to a Party's breach of Section 7 (Confidentiality), or in the case of gross negligence or wilful misconduct by Cognite or the Customer, nor apply in relation to the indemnification provisions set out in Section 8.3 (Mutual indemnification).

9. Term and termination

9.1 Term

The Service Agreement enters into force on the Effective Date and shall remain in force until the Service Period expires as further specified in the Service Order Form unless terminated earlier in accordance with the Service Agreement (the "Term").

9.2 Termination for breach

A Party is entitled to terminate the Service Agreement, by written notice to the other Party, if the other Party is in material breach of the Service Agreement, and fails to remedy the breach within thirty (30) days following written notice of breach from the other Party.
 
Such written notice shall specify the alleged material breach and the grounds for termination. If the Customer’s notice results in a termination of the Service 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 Service Agreement. 
 
If a material breach from the Customer is not possible to remedy, the Customer’s rights as set out in Section 6.3 shall lapse with immediate effect and be transferred to Cognite.
 
For the avoidance of doubt, any termination by Cognite because of material breach by the Customer is without liability to Cognite, and shall not release the Customer from any payment obligation or entitle the Customer to any refund.

9.3 Termination for insolvency

A Party is entitled to terminate the Service 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.

9.4 Effect of termination

If the Service Agreement terminates, for reasons other than the completion and acceptance of the Professional Services in accordance with Section 1.2, the Customer’s rights as set out in Section 6.3 lapse simultaneously and automatically transfer to Cognite.

10. Compliance with Applicable Laws

10.1 General

The Parties shall comply with any Applicable Laws of any authority having jurisdiction in general and in connection with this Service Agreement and the Professional Services, and shall under no circumstances use the Results to violate human rights law.

10.2 Export Compliance

The Professional Services may be subject to export laws and regulations of the United States of America (“US or United States”) and other jurisdictions. Cognite and the Customer each represent that it is not included on any U.S. government denied-party list. The Customer shall comply with all applicable export and re-export control laws and regulations, including without limitation the EAR, and any applicable laws and regulations of the country or jurisdiction in which the Customer is located or from which the Customer accesses or uses the Results.  The Customer shall not permit any user to access or use any Results in a United States-embargoed country or region or in violation of any United States export laws or regulations.

10.3 Health, security and 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 10 and in recognition of the Applicable Laws relating to anti-bribery and corruption of any country in which Cognite delivers the Professional Services, 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.

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

11.1 Contracting entities and notices

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

11.2 Governing law

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

  Cognite AS Cognite K.K. Cognite LLC
Governing law The laws of Norway The laws of Japan The laws of the State of New York, USA

11.3 Dispute resolution

If at any time a dispute or claim arises out of or in connection with this Service 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 among the Parties 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 conducted in accordance with the table below.  
  Cognite AS Cognite K.K. Cognite LLC
Arbitration rules (deemed to be incorporated by reference herein): Arbitration Rules of the Oslo Chamber of Commerce (the "OCC Rules") Arbitration Rules of the Japan Commercial Arbitration Association (the "JCAA Rules")

Arbitration Rules of the International Chamber of Commerce (the "ICC Rules")

Number of arbitrators: To be determined in accordance with the OCC Rules To be determined in accordance with the JCAA Rules. If the number of arbitrators is three then each Party shall have the right to appoint one arbitrator, and the arbitrators shall mutually appoint the third arbitrator. To be determined in accordance with ICC Rules. If the number of abitrators is three, then each Party shall have the right to appoint one arbitrator, and the arbitrators shall mutually appoint the third arbitrator.
Seat or legal place of arbitration: Oslo, Norway Tokyo, Japan New York City, USA

The language of the arbitration shall be English. If the Cognite entity entering into this Service 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 7, however such that this obligation to observe confidentiality shall continue ten (10) years after the termination of this Service Agreement, or ten (10) years after the case is finally settled by an arbitral award, whichever is the latest. For the avoidance of doubt, this confidentiality obligation shall cover all information disclosed in the course of such arbitral proceedings.

12. Miscellaneous

12.1 Assignment prohibition

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

12.2 Updates to the PSA

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

12.3 Subcontracting

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

12.4 Force majeure

Cognite shall not be liable under the Service 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 and directed attacks targeting Cognite (“Force Majeure”). 
 
The Customer may only terminate this Service 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 situation arose. Each of the Parties shall cover their own costs associated with such termination of this Service Agreement. Neither Party shall be entitled to bring a claim against the other as a consequence of the termination of this Service Agreement in accordance with this provision.

12.5 Entire agreement

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

13. Structure

The terms and conditions of the Service Agreement are set out in the following documents:
  1. The Service Order Form and any Service Order Form Amendment(s)
  2. The PSA
  3. 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 Service Order Form Amendment(s) shall prevail over the Service Order Form, and the Service Order Form Amendment with the latest effective date shall prevail over other, conflicting Service Order Form Amendment(s).

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.
 
"Background IPR" means any IPR conceived, designed, created, developed, reduced to practice, or otherwise acquired or controlled by Cognite or the Customer prior to the Effective Date of the Service Agreement, or otherwise outside the scope of the Professional Services contemplated under the Service Agreement.
 
"Cognite" means the Cognite entity entering into this Service Agreement as set out in the Service Order Form.
 
"Confidential Information" means any information concerning Cognite and the Customer 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 derived from any such information, irrespective of disclosing medium and storage. The Confidential Information may be labeled as "confidential", "proprietary", or similar without this being an explicit requirement for protection as Confidential Information.
 
"Consultancy Services" has the meaning set out in the Service Order Form.
 
"Consultancy Services Period" means the period specified in the Service Order Form.
 
"Consumer Price Index" means the price index measuring the consumer prices for goods and services purchased by private households in Norway, reported each February by Statistics Norway, the national statistical institute of Norway, and the main producer of official statistics (https://www.ssb.no/en).
 
"Customer" means the legal entity that has entered into a Service Agreement for certain Professional Services, as specified in the Service Order Form.
 
"Customer Cooperation" means the activities described in Section 3 including all the Customer activities specified in the Service Order Form or a Service Order Form Amendment.
 
"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 Service Order Form.
 
"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 form 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.
 
"Professional Services" means the individual service, including the timing, fees, and other terms and conditions applicable, as described in the Service 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.
 
"Service Agreement" means the Service Order Form, with the SoW, any Service Order Form Amendment, this PSA, and the Data Processing Agreement.
 
"Service Order Form" means the individual order form executed between Cognite and the Customer that provides and confirms which Professional Services are ordered and the terms and conditions to apply thereto, including SoW(s).
 
"Service Order Form Amendment" means a written order form executed between Cognite and the Customer that changes the Professional Services or the terms and conditions thereto.
 
"Service Period" means the period specified in the Service Order Form.
 
"Solution" has the meaning specified in the Service Order Form.
 
"Solution Period" means the period specified in the Service Order Form.
 
SoW” means a statement of work describing Professional Services to be performed under the Service Agreement, that is incorporated into the Service Order Form or a Service Order Form Amendment. 
 
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.
 
"Term" has the meaning set out in Section 9.1.