LAST REVIEWED AND UPDATED MAY 9, 2023
This Reseller Agreement and the documents referenced herein are an integrated part of the Agreement Form entered into between Cognite and the Reseller (collectively referred to as the “Agreement”). The Agreement governs the Reseller’s Resale of Subscription Items of which Cognite is and shall remain the sole and proprietary owner, and which are delivered as software-as-a-service on a subscription basis to End-Customers as further described in the Online Documentation and the EULA.
Capitalized terms used in this Agreement shall have the same meaning as set out in the Agreement Form, or as set out in Section 14.
1. License grant, subscriptions, and restrictions
1.1 License grant
Subject to the terms and conditions of this Agreement and the Reseller's compliance with its obligations herein, Cognite hereby grants to the Reseller for the duration of the Term:
- A non-exclusive, payable, non-sublicensable license to Resell Subscriptions to CDF to End-Customers within the Territory (the "CDF License");
- A non-exclusive, payable, non-sublicensable license to Resell Subscriptions to Cognite Applications to End-Customers within the Territory (the "Cognite Application License"); and
- A non-exclusive, fully-paid, royalty-free, non-sublicensable license to use the Cognite Trademarks in relation to the CDF License and Cognite Application License (the "Cognite Trademark License"),
collectively referred to as the "Reseller's License".
1.2 End-Customers’ Subscriptions
Unless otherwise explicitly agreed between the Parties in writing, the Reseller shall only Resell CDF and Cognite Applications in the form of Subscriptions and as further restricted in this Section 1.2 and Section 1.4.
The Reseller shall procure that the End-Customers' right to use the Subscription Items shall be non-exclusive, payable, non-sublicensable, non-transferable, revocable, time-limited, restricted to use within the Territory, and subject to the EULA.
The End-Customer’s use of the Subscription Items shall further be limited to its own use only, which for the sake of clarity shall not include access or use by any other than the legal entity identified as End-Customer and its Authorized Users, and the End-Customer shall be liable for its Authorized Users’ adherence to the EULA and Subscription Agreement, and for their acts and omissions as for its own.
A prerequisite for the grant of the Reseller’s License is that Reseller ensures that End-Customers accept the EULA, and Reseller acknowledges that all use of the Subscription Items is subject to the EULA. The Reseller represents and warrants that all End-Customers, by way of binding contract terms, shall be required to accept the terms and conditions of the EULA prior to the first time the End-Customer accesses, directly or indirectly, a Subscription Item. The Reseller acknowledges that Cognite is entitled to suspend End-Customers’ access to the Subscription Items pursuant to and as further set out in the EULA.
The Reseller shall notify Cognite immediately of any known or suspected breach of any Subscription Agreement or the EULA or any unauthorized use of the Cognite Technology. The Reseller shall assist Cognite in the enforcement of the terms of the EULA.
This Agreement does not grant the Reseller or End-Customer any right or license to Cognite Technology, other than the Reseller's License, and no license or other rights shall be created by implication or estoppel. In particular, but without limiting the generality of the foregoing, no right in or license or access to the source code of any Cognite Technology is granted hereunder.
The Reseller shall not, and shall procure that its End-Customers shall not:
- modify, alter, adapt, translate, reverse-engineer, decompile, disassemble, or attempt to discover the source code, underlying ideas, algorithms, file formats, or programming interfaces of any Cognite Technology;
- prepare, or permit any other Person to prepare, any derivative of any Cognite Technology, or reproduce, distribute, sub-license or transfer user rights to, commercialize, sell, or resell any Cognite Technology in any manner or for any purpose except as specifically permitted under this Agreement, or allow third parties access to separate software that utilizes the Subscription Items via an API or by other means;
- directly or indirectly use the Subscription Items or Confidential Information disclosed by Cognite, or information gained by the End-Customer from the Subscription Items to design, specify, develop, integrate, market, license, distribute, train, learn, improve, or host any competing products or services to the Subscription Items, or disclose any such information to any third party;
- remove any proprietary notices in any of the Cognite Technology or any associated documentation.
2. Resale, ordering process, services, and handling of data
2.1 Resale of CDF and Cognite Applications
The Reseller shall use Commercially Reasonable Efforts to Resell CDF and Cognite Applications to End-Customers in the Territory during the Term.
All marketing and sales materials related to CDF or Cognite Applications not provided by Cognite or consisting of content 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.
The Reseller shall act in its own name and for its own account. The Reseller 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 the Subscription Items shall be provided to the End-Customer solely by Reseller, and not by Cognite. This means that any claim the End-Customer may have related to the Cognite Technology and/or the Subscription Agreement between Reseller and End-Customer shall be directed toward Reseller only, and in case of a breach of the EULA by Cognite, the breach can only be invoked towards Cognite by the Reseller.
2.2 Ordering process for Subscriptions
Prior to entering into a Subscription Agreement with an End-Customer for a Subscription, the Parties shall execute the order form available here (the "Reseller Order Form").
2.3 Support, back-up and professional services
Cognite shall support and maintain the Subscription Items in accordance with the terms set out in the Cognite SaaS SLA (available at https://content.cognite.com/cognite-saas-service-level-agreement-sla
), as amended from time to time. Cognite shall use commercially reasonable efforts to run back-ups as further described in the Cognite SaaS SLA. The Reseller is responsible for ensuring that End-Customer maintains, protects, and makes backups of all End-Customer Data provided to Cognite.
If Cognite shall provide professional services to Reseller or to End-Customer as Reseller’s sub-contractor, the Parties shall execute a service order form which shall be subject to the Professional Services Agreement available here: https://www.cognite.com/en/legal/generalterms
, as amended from time to time.
2.4 Protection and use of End-Customer Data
As between Reseller and Cognite, Cognite does not have any responsibility for the lawfulness, reliability, integrity, and accuracy of End-Customer Data provided to Cognite.
Cognite shall maintain technical and organizational measures for the protection of the security and confidentiality of End-Customer Data, including but not limited to measures that seek to prevent access, use, modification, or disclosure of End-Customer Data, except as expressly permitted in accordance with the Agreement and with Applicable Laws.
Cognite shall, upon the Reseller’s specified written request, at any time during the Term, make commercially reasonable efforts to make the requested End-Customer Data available to the End-Customer via Reseller in a structured, commonly used, and machine-readable format. Upon the expiration or termination of the Subscription and upon the End-Customer’s request, Cognite shall delete or destroy all copies of End-Customer Data stored on any computer or other device or which are otherwise in Cognite’s possession or control, except to the extent Cognite is required to retain such End-Customer Data by Applicable Laws. Notwithstanding the foregoing, Cognite may retain End-Customer Data in backups, archives, and disaster recovery systems until deleted in the ordinary course of business, provided that such retained End-Customer Data shall remain subject to the requirements on confidentiality and security under the Agreement.
Cognite shall promptly inform the Reseller of any known or reasonably suspected security breach or unauthorized disclosure of End-Customer Data, personal data, or Confidential Information (“Security Event”).
In case of a Security Event, Cognite shall (i) take all reasonable steps to mitigate any potential damages; and (ii) promptly respond to security-related inquiries from the Reseller and take all reasonable steps to identify, investigate, and resolve applicable security issues in a timely manner.
2.5 Processing of personal data
If Cognite as part of the Reseller’s Subscription Agreement with an End-Customer shall process personal data on behalf of the End-Customer, then Cognite's standard Data Processing Agreement shall apply for such processing (available at https://content.cognite.com/data-processing-agreement
), as amended from time to time.
3. Prices, payment, tax, and invoicing
3.1 Prices and price revisions
The Reseller shall pay Cognite the fees and costs set out in the Agreement Form. All fees are provided exclusive of Taxes.
The Customer acknowledges and agrees that all fees and charges payable under the Agreement shall be paid in the currency stated in the Agreement Form. The Reseller shall bear full responsibility for any currency exchange costs, fees, or fluctuations related to the conversion of their local currency to currency stated in the Agreement Form for the purpose of making payments under this Agreement.
Cognite may at its sole discretion and upon thirty (30) calendar days prior notice to the Reseller, update the fees and/or price model at any time, including by increasing or decreasing fees (jointly a “Revised Price”). The Revised Price shall only apply to Subscriptions entered into after the effective date of the Revised Price and shall not affect the fees and price model for existing and ongoing Subscriptions. Notwithstanding the foregoing, the Revised Price shall apply if existing Subscriptions are renegotiated, and apply when existing Subscriptions are renewed three (3) months or more after the date Cognite gave notice to the Reseller of the Revised Price.
Cognite shall invoice the Reseller in accordance with the billing cycle and payment terms set out in the Agreement Form. Unless otherwise set out in the Subscription Order Form, payments are due thirty (30) calendar days after receipt of a correct invoice.
If the Reseller fails to make any payment when due, then, without limiting other remedies available to Cognite under the Agreement, 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. In addition, Cognite may suspend its obligations under this Agreement from the first day of delayed payment and for as long as the amount remains outstanding.
Reseller and Cognite shall each be responsible for their own Taxes in connection with the Agreement, except as set out below or elsewhere in the Agreement.
If value-added taxes, sales taxes, goods and services taxes, or similar indirect taxes are applicable under Applicable Laws to any invoiced amounts under the Agreement, the Reseller is responsible for such taxes, and 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 from Reseller under the Agreement shall be made without deduction or withholding of any Taxes unless such deduction or withholding is required by Applicable Laws. If the Reseller is required by Applicable Laws to deduct or withhold Taxes on payments under the Agreement, the fees shall be increased (grossed up) so that the Reseller pays to Cognite the same amount that would have been paid had such deduction or withholding not been required.
The Reseller shall defend, hold harmless and indemnify Cognite from liability to any competent authority resulting from the failure by the Reseller to deduct, withhold or remit Taxes where required by Applicable Laws.
The Reseller 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 Reseller shall be liable for any Taxes levied on Cognite in connection with the Agreement outside the jurisdiction where Cognite is resident for tax purposes unless such taxes are covered by the preceding paragraphs of this Section 3.3. Such taxes shall be paid by Reseller directly to the relevant tax authority where permissible under Applicable Laws or otherwise reimbursed by Reseller to Cognite where Cognite is required to pay such taxes.
The Reseller shall be liable for any new or increased Taxes levied on Cognite in connection with the Agreement outside the jurisdiction where Cognite is resident for tax purposes. If such new or increased taxes relate to a deduction or withholding requirement, the fees shall be grossed up in accordance with the third paragraph of this Section 3.3. Otherwise, such new or increased taxes shall be paid by Reseller directly to the relevant tax authority where permissible under Applicable Laws or otherwise reimbursed by the Reseller to Cognite where Cognite is required to pay such taxes.
3.4 External invoicing systems
Should Cognite agree in writing to utilize Reseller’s preferred invoicing system, Reseller shall reimburse Cognite for any costs incurred in connection with accessing and using such invoicing system for the purpose of invoicing Customer in accordance with the Agreement.
The Parties explicitly agree that Section 3.1-3.4 above shall apply and have priority regardless of any arrangements between Cognite and Reseller regarding the use of invoicing system. The Agreement shall prevail over any terms and conditions associated with any third-party invoicing systems.
4. IPR ownership
4.1 Background IPR
Each Party is and shall remain, the sole and exclusive owner of all right, title, and interest in and to its Background IPR, and neither Party shall acquire any rights to the other Party's Background IPR unless expressly stated in this Agreement.
4.2 Subscription Items and Improvements
For the avoidance of doubt and without limiting the generality of Section 4.1, Cognite and its third-party licensors (which exclude the Reseller and End-Customers) are and shall remain the sole and exclusive owner of all right, title, and interest in and to the Subscription Items, the Cognite Technology, and any Improvements, which all shall be considered Cognite’s Background IPR. Cognite shall have the right to use and commercialize any Improvements at its discretion without any restrictions whatsoever.
This shall not alter the fact that such Background IPR is licensed by Cognite K.K or Cognite LLC from Cognite AS or its third-party licensors.
All Confidential Information exchanged or otherwise transferred between the Parties shall be treated as confidential, handled securely, and duly protected from unauthorized disclosure using the same level of care the Parties use to protect its own Confidential Information, but at least a commercially reasonable level of care. Electronically stored Confidential Information shall be inaccessible to unauthorized personnel.
For the avoidance of doubt, Cognite Technology shall be deemed Cognite's Confidential Information, regardless of any contributions from the Reseller.
Confidential Information shall not be disclosed by the receiving Party to any third party without the prior written consent of the disclosing Party or used for any other purpose than for which it was disclosed or as otherwise agreed in this Agreement unless such Confidential Information:
- is already known by rightful means to the receiving Party at the time the information was received;
- is or becomes part of the public domain other than through the default of the receiving Party;
- is received from a third party without an obligation of confidentiality of which the receiving Party was or should have been aware; or
- 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 item 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 will be accorded such Confidential Information.
Each Party may, however, use or disclose Confidential Information to a third party, to the extent necessary for the performance of that Party's obligations under this Agreement, provided that such Party shall procure that such third party is bound by confidentiality obligations at least as onerous than those set out in this Section 5.
At any time, upon the disclosing Party’s reasonable request, the receiving Party shall promptly return to the disclosing Party or destroy, at the disclosing Party’s option, any Confidential Information.
Notwithstanding the foregoing, Confidential Information stored in backups, archives, or disaster recovery systems will be deleted in the ordinary course of business, and such retained Confidential Information shall remain subject to the above confidentiality obligations.
This obligation to observe confidentiality shall continue ten (10) years after the termination of this Agreement.
6. Representations and warranties
Each Party hereby makes to the other Party the following representations and warranties as of the Effective Date:
- 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 Agreement and to perform its obligations hereunder, and the execution and delivery of this Agreement and the performance thereof have been duly authorized, executed, and delivered by all necessary corporate action;
- neither the execution and delivery of this Agreement nor the performance hereof will violate, conflict with, or result in a breach of any Applicable Laws or provision of such Party’s organizational documents or any agreement, document, or instrument to which it is subject or by which it or its assets are bound or require the consent or approval (if not already obtained) of any shareholder, partner, equity holder, holder of indebtedness, or other Person or entity, or contravene or result in a breach of or default under or the creation of any lien, charge, or encumbrance upon any property under any constitutive document, indenture, mortgage, loan agreement, lease, or other agreement, document, or instrument to which such Party is a party; and
- any authorizations and exemptions required to be obtained from any actions or approvals by, and any required notices to or filings with, any governmental authority in connection with the execution and delivery of this Agreement or the performance by the Party of its obligations hereunder have been obtained or made and are in full force and effect, and all conditions of any such authorizations, exemptions, actions, or approvals have been complied with.
Cognite hereby represents and warrants to the Reseller that Cognite as of the Effective Date has full and unencumbered rights, title, and interest to grant to the Reseller the Reseller's License and that Cognite shall provide the Subscription Items with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the Subscription Items.
Except if expressly provided in the Agreement and to the extent permitted by Applicable Laws, the Subscription Items are provided “as is” and Cognite does not make warranties of any kind, express, implied, or statutory, including those of merchantability, fitness for a particular purpose, or any warranty regarding the availability, reliability or accuracy of the Subscription Items.
7. Indemnities and limitation of liability
7.1 Cognite indemnities
Cognite shall indemnify the Reseller, its affiliates, and their respective directors, officers, employees, and agents, and defend and save each of them harmless, from and against any and Losses in connection with any and all suits, investigations, claims, or demands from any third party alleging that the permitted use of the Reseller's License infringes such third party's IPR, provided that the claim does not arise as a result of the use of the Subscription Items otherwise than in accordance with Cognite’s direction or written operating instructions, the terms of this Agreement, the EULA, or a Subscription Agreement, and that the indemnification conduct provisions in Section 7.3 below are adhered to.
Section 7.1 shall not apply to Losses caused by or arising as a result of the use or combination of Cognite Technology or any part thereof with software, hardware, data, or processes not provided by Cognite, if the Cognite Technology or use thereof would not cause the Losses without such combination.
To avoid and cure infringements, Cognite may, at its option:
- procure the right to use the Subscription Items as before, without infringing any third-party rights;
- replace or change the Subscription Items or provide materially corresponding Subscription Items that do not infringe any third-party rights; or
- terminate the Agreement with immediate effect by written notice to Reseller.
Until any infringement is resolved, Cognite shall be entitled to make the Subscription Items in question unavailable to the End-Customer. The Reseller shall be entitled to a pro-rata refund of fees pertaining to the periods during which Cognite has made the Subscription Items unavailable as set out in the foregoing, and Cognite shall not incur any other liability for exercising this right.
The foregoing states the entire liability of Cognite to the Reseller of the infringement of IPR of any third party.
7.2 Reseller indemnities
The Reseller shall indemnify Cognite, its affiliates, and their respective directors, officers, employees, and agents, and defend and save each of them harmless, from and against any and all Losses resulting from any and all suits, investigations, claims, or demands from any third party (including any End-Customer) arising out of or in connection with the Reseller’s or any End-Customers’ use of Cognite Technology and any other part of the Reseller’s License, except for claims as set out in Section 7.1.
With reference to Section 2.1 last paragraph, the Reseller 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 2.1 last paragraph above. For the avoidance of doubt, Cognite shall be liable toward Reseller for Cognite’s breach of this Agreement subject to Section 7.4, such that the Reseller’s obligations set out in this Section 7.2 second paragraph shall apply to the Losses that would not have been incurred had the claim been directed to Cognite by Reseller in accordance with this Agreement, rather than by End-Customer in violation of Section 2.1 last paragraph.
7.3 Indemnification conduct
A Party shall promptly notify the other Party if it receives a claim that the other Party shall be obliged to indemnify. To the extent possible, the indemnifying Party shall take over and control the defense of the claim. The indemnified Party shall promptly give the indemnifying Party all information and assistance reasonably needed for handling the claim. The indemnified Party shall not compromise, settle or otherwise dispose of a claim, in whole or in part, without the written consent of the indemnifying Party.
7.4 Limitation of liability
In no event shall a Party be liable towards the other Party under or in connection with the Agreement or the subject matter contemplated hereunder, including, without limitation, the Subscription Items, whether in tort, contract or otherwise for:
- special, indirect, consequential, exemplary, incidental, or punitive damages or losses; or
- 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 aggregated and total liability of each Party arising out of or in connection with this Agreement shall not exceed the total amount agreed to be paid by the Reseller to Cognite under this Agreement in the twelve (12) month period immediately preceding the event giving rise to the liability. For the avoidance of doubt, this limitation of liability shall be cumulative and not per incident.
The aggregated and total liability of each Party arising out of or in connection with a Subscription Agreement with an End-Customer shall not exceed 50% of the total amount agreed to be paid by the Reseller to Cognite related to that Subscription Agreement in the twelve (12) month period immediately preceding the event giving rise to the liability. For the avoidance of doubt, this limitation of liability shall be cumulative and not per incident.
The limitations of liability set out in Section 7.4 shall not apply in relation to a Party's breach of Section 1, Section 5, Section 6, or Section 9.2, and not to the indemnities in Section 7.1 and Section 7.2, and not in the case of gross negligence or wilful misconduct by the Senior Officers of Cognite or the Reseller.
8. Term and termination
This Agreement enters into force on the Effective Date and continues until the expiry of the Term (including any Renewal Term) as further set out in the Agreement Form unless terminated earlier in accordance with this Agreement.
Cognite shall have no obligation to renew or extend the Term of this Agreement, and no payments, liabilities, or damages shall be due to the Reseller or shall be imposed upon Cognite, for its decision not to renew this Agreement.
Each Party may terminate this Agreement, including all licenses granted herein, by thirty (30) calendar 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
- the other Party is in material breach of the Agreement and fails to remedy the breach within sixty (60) calendar days following written notice of the breach.
The written notice referred to in b. shall specify the alleged material breach and the grounds for termination. If Reseller’s notice results in a termination of the Agreement, the grounds for termination and material breach identified in the notice constitute the final frame and grounds that shall determine whether the Reseller had the right to terminate the Agreement.
Notwithstanding the foregoing in Section 8.2, Cognite shall have the right to terminate this Agreement with immediate effect upon a material breach by the Reseller that is not possible to remedy within the stated sixty (60) calendar days, and upon a material breach by the Reseller of the terms or conditions herein related to the use or disclosure of Confidential Information or Cognite Technology.
In addition to any other available remedies, Cognite may without any liability towards Reseller immediately suspend the End-Customer's access to the Cognite Technology based on any suspected violation of the EULA Section 1.2c), and such violation shall be deemed a violation of Cognite’s IPR.
8.3 Effects of termination
Notwithstanding Section 8.1 and 8.2, the termination of this Agreement shall not affect the validity or content of any Subscription Agreements entered into before a notice of termination as set out in Section 8.2 or the Agreement Form has been issued, and the Reseller may on the terms and conditions of this Agreement continue such Subscriptions after the termination of this Agreement, provided however that the Reseller shall terminate any Subscription as soon as permitted under the Subscription Agreement and no later than two (2) years from either i) the notice of termination, as set out in Section 8.2, has been issued, or ii) the expiry of the Agreement due to non-renewal as set out in the Agreement Form. Alternatively, Reseller may transfer the Subscription Agreement from the Reseller to Cognite, provided that both Cognite and the End-Customer have consented to such transfer.
The Reseller shall not Resell nor extend any Subscription nor in any other way distribute CDF, Cognite Applications, or any other Cognite Technology to existing or potential End-Customers after this Agreement has been terminated, provided however that this is without prejudice to the foregoing in Section 8.3.
9. Compliance and ABC
9.1 Compliance with laws and sanctions
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 at https://www.cognite.com/hubfs/Code%20Of%20Conduct%202023%20(1).pdf
) and Supplier Declaration (available at https://content.cognite.com/cognite-supplier-declaration
In particular, and without limiting the generality of the foregoing, the Reseller shall ensure that the sale of Subscriptions to End-Customers does 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 Reseller shall entitle Cognite to terminate the Agreement with immediate effect.
9.2 Export compliance
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 Reseller each represent that it is not included on any U.S. government denied-party list. The Reseller 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 Reseller 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.
The Reseller 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.
Each Party shall comply, and cause its personnel, agents, and subcontractors to comply, during the Term, with applicable anti-bribery and anti-money laundering laws, regulations, rules, or requirements in connection with the performance of this Agreement including the United Kingdom Bribery Act 2011, the relevant legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the US Foreign Corrupt Practices Act 1977 (the “Anti-Corruption Legislation”), and to refrain from engaging in acts or transactions in violation of or inconsistent therewith. Any breach or violation of this Section 9.3 shall be deemed a material breach of this Agreement.
Each Party shall not, and shall cause its personnel, agents, and subcontractors not to, during the Term, in connection with this Agreement:
- offer, pay, promise to pay, or authorize the giving of money or things of value to a government official (including, but not limited to employees of a governmental oil company), to any officer or employee of a public international organization, to any political party or official thereof, or to any candidate for political office, to any person, while knowing or being aware of a high probability that all or a portion of such money or thing of value will be for the purpose of (i) influencing any act or decision of such official, officer, employee, political party, party official, or candidate in their official capacity, including a decision to fail to perform their official functions or (ii) inducing such official, officer, employee, political party, or candidate to use their influence with the government or instrumentality or organization to affect or influence any act or decision of such government or instrumentality or organization, or to obtain an improper advantage in order to assist either Party in obtaining or retaining business for or with, or directing business to either Party or any other person in relation to this Agreement;
- make any contribution, gift, or other incentives, directly or indirectly, to any political party or candidate in connection with any election campaign for any government office, unless such contribution is lawful in the country where it was made and does not contravene the Anti-Corruption Legislation;
- make any payment, gift, commission, fee, rebate, or other incentives for the benefit of any supplier, customer, government or public official, or other business associates of either Party which could reasonably be interpreted as being for the purpose of improperly influencing, inducing facilitating a business or administrative decision of such supplier, customer, government or public official, or other business associates; and
- pay any commissions, fees, or grant any rebates or incentives to any employee or officer of either Party or of any subcontractor, or favor said persons with gifts, bribes, or entertainment of significant or substantial value, or enter into any business arrangements with employees or officers of either Party other than with authorized representatives of either Party who are acting on behalf of such Party. Each Party shall report in writing to the other Party any solicitation of commissions, fees, or rebates received in connection with this Agreement.
All financial settlements, invoices, and reports rendered to the other Party as provided for in this Agreement shall reflect properly the facts about all activities and transactions handled for the account of the other Party. Such financial settlements, invoices, and reports shall be complete and accurate.
10. Breach and Force Majeure
10.1 Breach of Agreement
A Party shall be deemed to be in breach of this Agreement if it fails to comply with its obligations under the Agreement unless the decisive reason for such breach manifestly can be attributed to the other Party.
The Party claiming that the other Party is in breach of the Agreement shall give written notice thereof without undue delay after the breach was or should have been discovered. For the avoidance of doubt, both Parties shall be granted reasonable time for communication with the End-Customer, if necessary, prior to giving written notice.
The breaching Party shall within reasonable time rectify the breach.
10.2 Force Majeure
For the purpose of this provision, "Force Majeure" means an extraordinary situation beyond the reasonable control of the Parties, that could not have been reasonably anticipated or avoided by the exercise of due diligence, and which makes it impossible for a Party to fulfill its obligations under this Agreement. Force Majeure shall include, for example war, strike, lockout, riot, epidemic, pandemic, natural catastrophes such as floods, fires, earthquakes, hurricanes, volcanic eruptions, and sandstorms, utility, network, or device failure external to Cognite or its cloud service providers, and third-party attacks, including but not limited to distributed denial of service, directed attacks targeting Cognite, or impacting the Subscription Items.
In case of a Force Majeure event, the affected Party shall notify the other Party of this as soon as reasonably practicable. The obligations of the affected Party shall be suspended for as long as the Force Majeure prevails.
Each Party shall keep the other fully informed of the actual and any expected effects of any Force Majeure, of the steps the Party is taking to mitigate the effects of the Force Majeure, and the expected duration of the Force Majeure event.
Where a Force Majeure has occurred, the other Party may terminate this Agreement with fifteen (15) calendar days’ notice if the Force Majeure lasts or is reasonably expected to last for more than ninety (90) calendar days from the date on which the Force Majeure event arose. Each of the Parties shall cover their own costs associated with such termination of the Agreement. Neither Party shall be entitled to bring a claim against the other as a consequence of the termination of the Agreement in accordance with this provision.
11. Governing law and dispute resolution
11.1 Governing law
Any dispute arising out of or in connection with this Agreement shall be exclusively governed by and construed in accordance with the governing law as set out in the table below. The governing law is dependent on the Cognite entity that has entered into the Agreement with the Reseller.
||The laws of Norway
||The laws of Japan
||The laws of the State of New York
11.2 Dispute resolution
If at any time a dispute or claim arises out of or in connection with this Agreement (whether in contract, in tort, or based on statute or regulation), then either Party shall give notice to the other Party in writing of the existence of such dispute or claim, specifying its nature and the point of issue. The Parties shall in good faith endeavor to resolve such dispute or claim amicably within sixty (60) calendar days from the date of such notice (or such longer period as the Parties may agree).
Disputes or claims among the Parties that remain unresolved at the expiration of the period specified above 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 Agreement with the Reseller in accordance with the table below.
|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 the Commerce (the "ICC Rules")
|Number of arbitrators:
||To be determined in accordance with the OCC Rules
||To be determined in accordance with the JCCA 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 the ICC 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.
|Seat or legal place of arbitration:
||New York City, USA
The language of the arbitration shall be English. If the Cognite entity entering into this Reseller 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 5, however such that this obligation to observe confidentiality shall continue ten (10) years after the termination of this 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.
12.1 Audit rights
Cognite shall have the right, to the extent legally permissible, to review the Reseller’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 Reseller. 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.
Cognite's audit rights pursuant to this Section 12.1 shall remain in force ten (10) years after the termination of this Agreement.
The Cognite and Reseller entities entering into this Agreement, and the contact details to which notices shall be directed under this Agreement, are set out in the Agreement Form. A copy of all notices to Cognite under the Agreement shall be sent to firstname.lastname@example.org.
12.3 Entire agreement
This Agreement constitutes the entire agreement and understanding between the Parties in respect of the subject matter contained herein and there are no restrictions, promises, representations, warranties, covenants, or undertakings with respect to the subject matter hereof, other than those expressly set forth or referred to herein. This Agreement supersedes any and all prior agreements and understandings between the Parties with respect to the subject matter hereof.
If and to the extent that any provision of this Agreement is held to be inconsistent with any Applicable Laws 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 Agreement but without invalidating any of the remaining provisions of this Agreement. The Parties shall use all reasonable endeavors to replace the inconsistent or invalid or unenforceable provisions with a consistent, valid, and enforceable substitute provision, the effect of which is as close as possible to the intended effect of the inconsistent, invalid, or unenforceable provision.
No amendment of this Agreement shall be valid unless executed in writing by each Party. Unless expressly agreed, no amendment shall constitute a general waiver of any provisions of this Agreement, nor shall it affect any rights, obligations, or liabilities under or pursuant to this Agreement which have already accrued up to the date of such amendment, and the rights and obligations of the Parties under or pursuant to this Agreement shall remain in full force and effect, except and only to the extent that they are so amended.
To the extent permitted by Applicable Laws, Cognite may assign this Agreement. The Reseller shall not assign this Agreement unless agreed between the Parties in writing.
It is expressly agreed that it is not the purpose or intention of this Agreement to, and nothing in this 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 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.
12.8 No third-party rights
This Agreement 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.
The terms and conditions of this Agreement are set out in the following documents:
- The executed Agreement Form;
- Any executed Reseller Order Form(s); and
- This Reseller Agreement (including the Data Processing Agreement, available at https://content.cognite.com/en/legal/data-processing-agreement, Cognite's Code of Conduct, available at https://www.cognite.com/hubfs/Code%20Of%20Conduct%202023%20(1).pdf and Cognite's Supplier Declaration, available at https://content.cognite.com/cognite-supplier-declaration).
In case of conflict between the documents (a) – (c) above, the documents shall prevail in the order they are listed.
In this Agreement:
"ABC" means anti-bribery and corruption.
"Agreement" means this Reseller Agreement, the Agreement Form, any Agreement Form Amendments and executed Reseller Order Form(s).
"Agreement Form" means the document signed by Cognite and the Reseller that confirms that the Parties have entered into a collaboration under which the Reseller shall resell Subscriptions in the Territory.
"Applicable Laws" means all applicable laws, regulations, requirements, or orders, which are issued by any governmental body with legal authority to exercise legislative, judicial, regulatory, or administrative functions.
"Applications" means software that utilizes CDF via the CDF API.
"Authorized Users” means those individual End-Customer employees or service providers authorized by End-Customer to use the Subscription Items on End-Customer’s behalf, on the terms and conditions of the Subscription Agreement and the EULA, and solely for their provision of services to the End-Customer.
"Background IPR" means any IPR conceived, designed, created, developed, reduced to practice, or otherwise acquired or controlled by Cognite or the Reseller prior to, or otherwise outside of and unrelated to the scope of this Agreement.
"CDF" means Cognite Data Fusion, a software system made and implemented by or on behalf of Cognite, the core functionality of which is to collect, process, and store data and to make such data available for consumption, as further described in the Online Documentation. The term "CDF" shall include CDF API.
"CDF API" means one or more application programming interfaces made available as software-as-a-service, which the Customer can use to utilize CDF.
"Cognite" has the meaning set out in the Agreement Form.
"Cognite Applications" means Applications owned or licensed by Cognite, excluding Applications developed by or on behalf of Cognite for the exclusive use of a third party.
"Cognite SaaS SLA" means Cognite's standard SaaS service level agreement (available at https://content.cognite.com/cognite-saas-service-level-agreement-sla), as amended from time to time.
"Cognite Technology" means CDF, Cognite Applications, Extractors, and any other technologies owned or licensed by Cognite, and all underlying IPR therein and thereto.
"Cognite Trademarks" means any registered trademark, logo, or design held by Cognite during the Term, unless otherwise notified by Cognite to the Reseller.
"Commercially Reasonable Efforts" means those efforts, and the application and expenditure of resources, applied and expended in a manner consistent with the exercise of prudent business judgment and business practices, as are customary for similarly situated companies in the software industry with respect to services and products that have commercial potential similar to the Cognite Technology.
"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 Agreement, including, without limitation, procedures, documentation, marketing data, trade secrets, know-how, technical data and information, software, source codes, technology, valuations, IPR, , the content of this Agreement (but not its existence), 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 labeled as "confidential", "proprietary", or similar without this being an explicit requirement for protection as Confidential Information.
"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.
"Effective Date" has the meaning set out in the Agreement Form.
"End-Customer" means any Person entering into a Subscription Agreement with the Reseller.
"End-Customer Data" has the meaning given to it in the EULA.
"End-Customers' Normal Business Activities" means all activities that are presently, or may reasonably become, part of the business of the End-Customer, excluding, for the avoidance of doubt, any commercialization (including resale and sublicensing) of any of the Subscription Items through licenses to third parties or otherwise.
"Extractors" means software made available to the End-Customer in the form of executable code for on-premises installation for use to extract customer data and send customer data to CDF.
"Improvements" means any and all modifications, improvements, or further developments of CDF and Cognite Applications.
"IPR" means intellectual property rights of any kind existing now or in the future anywhere in the world, whether registered or not, and all applications, renewals, extensions of, and rights to apply for the same, including without limitation, patents, trademarks, design rights, copyright, publishing rights, moral rights, database rights, service marks, logos, business names, domain names, trade names, and other rights in goodwill, know-how, trade secrets, and other protected material, each in any form or format, including without limitation any and all intellectual property rights in and to any inventions, new technology, reports, data, data structures, databases, calculations, documents, drawings, sketches, specifications, equipment, algorithms, heuristics, computer programs, and source codes for software, and including without limitation the right to sue for passing off or unfair competition, rights to use, and to protect the confidentiality of, Confidential Information, and all other intellectual property rights, and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection.
“Losses” means any and all losses, liabilities, damages, fines, penalties, costs, and expenses (including reasonable legal fees) finally awarded by a court of final appeal or reached through a negotiated settlement.
” shall mean the description of CDF that is maintained at https://docs.cognite.com/cdf/
or on such other webpage Cognite may publish and make available to the Reseller.
"Parties"/”Party” has the meaning set out in the Agreement Form.
"Person" means any individual, corporation, joint stock company, limited liability company, partnership, joint venture, association, trust, unincorporated organization, government, governmental agency, authority, institution, ministry, or other entity.
"Resell" means advertise, make known in the market, promote, and offer for sale to potential End-Customers and End-Customers, and enter into or amend Subscription Agreements for the purpose of establishing or expanding Subscriptions, and “Reselling”, “Resold”, and other cognates shall be construed accordingly.
"Reseller" has the meaning set out in the Agreement Form.
"Senior Officers" means the Chief Executive Officer, the Chief Finance Officer, and the Chief Legal Officer, or the roles closest corresponding to these in the relevant company.
"Subscription(s)" means the time-limited, non-exclusive, non-sublicensable, non-transferable, revocable right to access and use the Subscription Items as software-as-a-service on a subscription basis and in accordance with the terms and conditions of a Subscription Agreement.
"Subscription Agreement" means an agreement between the Reseller and an End-Customer within the Territory for a subscription to the Subscription Items.
"Subscription Items" means individual components included in a Subscription, such as CDF and/or Cognite Applications, as further specified in a Reseller Order Form.
“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 the Agreement Form.
"Territory" has the meaning set out in the Agreement Form, and if not so specified therein, the country in which the Reseller's legal entity is registered.