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KOGNITWIN ENERGY TERMS OF USE

Here you can find your rights and obligations with respect to the usage of KOGNITWIN Energy. 

1. KOGNITWIN

KOGNITWIN Energy is a Kongsberg Digital AS (“KDI”) developed digital twin solution designed for building and deploying digital twins as virtual representations of physical facilities, to enable customers, commonly facility owners/operators in the heavy asset industries (“Customer(s)”), to digitally transform and improve their ways of working, facilitating improved decision making. KOGNITWIN provides Customers such virtual facility representations across the relevant facilities’ lifespan.

The KOGNITWIN Energy Service Platform comprises of a collection of services in the form of a number of software Applications developed and owned by KDI (“Kongsberg Applications”) and from time to time Applications developed and owned by Third Parties who have a contractual relationship with KDI (“Third Party Applications”) and are permitted to make such Third Party Applications available on the KOGNITWIN Energy Service Platform. Kongsberg Applications and Third Party Applications are available for subscription by the Customer to enhance its experience and value capture from data available through KOGNITWIN.

Use of the KOGNITWIN Energy Service Platform must be in accordance with the provisions of this document (“Terms of Use”).

Customer is responsible for enabling compatibility between the Customer’s own systems and electronic communication services used to access the KOGNITWIN Energy Service Platform and to prevent unauthorised access to same.

The Customer undertakes to use the KOGNITWIN Energy Service Platform in accordance with applicable laws and regulations and with requirements set out herein. The Customer is responsible for the material and information that the Customer and its Authorised Users produce by using or accessing the KOGNITWIN Energy Service Platform.

The Customer agrees that KDI reserves the right to update these Terms of Use from time to time as described in Clause 17, and that it is the Customer’s responsibility to monitor such updates. KDI and Customer are referred to as a “Party” or collectively the “Parties”.

2. definitions

Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with KDI and control means directly or indirectly, controlling or owning more than 50 percent of the outstanding voting rights or shares.

Agreement” means any executed and valid contract (excluding the Subscription Agreement) between the Parties that incorporates these Terms of Use.

Application(s)” means an individual software component or program that is designed to perform a specific function directly for the Customer or, in some cases, for another application program.

Application Suite” means the suite of Applications contained on the KOGNITWIN Energy Service Platform and comprises Kongsberg Applications and Third Party Applications and any associated user interfaces and related technology that KDI makes available via KOGNITWIN.

Asset” means a single operating site, platform or facility identifiable at a single location subject to limitation, restriction, count, categorization and determination by KDI at its sole discretion, selected by Customer to onboard onto KOGNITWIN and which Customer shall access under a Subscription Agreement.

Authorised User” means one natural person who a) is covered by a valid Subscription Agreement between Customer and KDI, and is an employee of the Customer (or otherwise related to the Customer), and who is identified and notified by Customer to KDI to be given access to one or more services pursuant to these Terms of Use, or b) is an employee of Customer (or otherwise related to the Customer) and has subscribed to the KOGNITWIN Services in the Application via relevant functionality that provides mechanisms for self-service, as further described in Clause 5.

Customer’s Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with Customer and control means directly or indirectly, controlling or owning more than 50 percent of the outstanding voting rights or shares.

Customer Data” means all electronic data or information, including all text, sound, video, or image files, Personal Data and software, that are provided to KDI by, or on behalf of, the Customer through use of KOGNITWIN.

Confidential Information” means any and all information disclosed verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood by the receiving Party to be confidential or proprietary to the other Party. Confidential Information includes, but is not limited to, trade secrets, computer programs, software, formulas, inventions, techniques, documentation, marketing plans, strategies, forecasts and Affiliate and Third Party confidential information.

Intellectual Property” means concepts, methods, procedures, processes, specifications, schematics, software code (in any form including source code and executable or object code), subroutines, techniques, tools, uniform resource identifiers, user interfaces, Application programming interface (“API”) algorithms, data, databases, data structures and data collections, data analytics, visualizations, graphical assets, single or multidimensional models, animations, apparatus, designs, diagrams, documentation, drawings, flow charts, formulae, works of authorship, manuals, reports, records, ideas and inventions (whether or not patentable or used in practice), designs, marks (including brand names, product names, logos, and slogans), and know-how, marketing and development plans and other forms of technology or materials.

Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with software, databases or works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in (a) through (f) of this sentence.

KOGNITWIN API” means the application programming interfaces which are made available to Customer and its Authorised Users as part of a valid User Subscription(s) and which connect to the KOGNITWIN Energy Service Platform and make data available from the KOGNITWIN.

KOGNITWIN Collaborate” means the initial set of features and functionalities, that is not categorized as an Add-On Subscription, that the Parties agree to implement during the initial onboarding. KDI retains its full right to decide the scope of KOGNITWIN Collaborate, including without limitation whether or not to include future incremental functionality under the same commercial terms.

KOGNITWIN Energy” means the dynamic virtual representation of the Customer’s Asset across its lifespan and any related technology made available by KDI or its suppliers to the Customer. “KOGNITWIN” shall have a correlative meaning. KOGNITWIN™ is a registered trademark belonging to KDI.

KOGNITWIN Energy Service Platform” means the service platform on which KDI deploys KOGNITWIN Energy (including the Application Suite) and based on which KDI renders its related subscription.

KOGNITWIN Services” means all services and software (software-as-a-services (“SaaS”)) provided by KDI and made available to Customer through a relevant Subscription Agreement.

Person” means a natural person or a legal entity, including any partnership, limited partnership, limited liability company, corporation, firm, trust, body corporate, government, governmental body or agency, or unincorporated venture.

Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. 

Required Customer Equipment” means any equipment and ancillary services needed to connect to, access or otherwise use the KOGNITWIN Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.

Subscription Agreement” means a standalone subscription agreement executed between Customer and KDI, governed by these Terms of Use.

Support Services” means the support services described in Clause 10.

Third Party” means a party other than KDI or the Customer, with who KDI has a contractual relationship with, in respect to the KOGNITWIN Energy Service Platform.

Third Party Content” means content belonging to a Third Party as described in sub-Clause 14.2.

3. INTERPRETATION

The terms “including” and “includes” mean “including without limitation” and “includes without limitation”.

The terms “will”, “must”, and “shall” have equivalent meanings and create a present and ongoing obligation, unless the context otherwise requires.

Unless expressly stated otherwise, the term "day" used in these Terms of Use refers to a calendar day, regardless of whether considered a working day, non-working day, or holiday.

References to a “Clause” refer to its entirety (e.g. Clause 1 or “this Clause”). References to parts of a Clause are made by reference to a “sub-Clause” (e.g. sub-Clause 1.1) and include its paragraphs (e.g. paragraph (a)), sub-paragraphs (e.g. sub-paragraph (i)) unless specific reference is made to the paragraph, sub-paragraph, or Clause.

No heading, index, title, subtitle, subheading, or marginal note of these Terms of Use limits, alters, or affects the meaning or operation of these Terms of Use.

Wherever in these Terms of Use Customer is stated as having an obligation, this means that Customer will cause all members and Authorised Users of Customer to comply with such obligation.

4. SUBSCRIPTIONS

KOGNITWIN Energy is delivered by KDI to Customer in the form of KOGNITWIN Services. The KOGNITWIN Services shall be governed by a Subscription Agreement applicable to the scope. The subscription categories are as follows:

A. Service Subscription

Before an Asset is onboarded onto KOGNITWIN it must first be integrated and configured according to a separate agreement (“KOGNITWIN Onboarding Agreement”). Following completion of the integration and configuration activities, the Customer shall execute a Subscription Agreement for access to the KOGNITWIN Services (“Service Subscription”). KOGNITWIN is hosted and managed on KDI’s cloud instance. Customer shall consume the Service Subscription through a SaaS model.

B. User Subscription

All access to the KOGNITWIN Services, either directly through APIs, or indirectly through Applications, requires such access to be connected to a named user, which shall be covered by a valid user subscription (“User Subscription”). A named user in this context is an Authorised User.

User Subscriptions shall be activated by KDI, following Customer’s request to KDI. Customer shall provide KDI with reasonable advance notice to implement such User Subscription activations.

Each User Subscription provides enterprise-wide access on KOGNITWIN to such Authorised User. The User Subscription itself does not restrict user access to specific Assets or functionalities within the KOGNITWIN environment. However, Customer-specific user access restrictions shall be applied and managed through Customer’s own internal onboarding process, where role-based access controls are applied on KOGNITWIN Energy based on Customer’s internal rules, and where Customer at all times shall be responsible for assigning the correct access levels to the relevant Authorised Users on the KOGNITWIN Energy Service Platform. For the avoidance of doubt, KDI is not responsible for and shall not be liable for the outcomes of any erroneous assignment of user privileges resulting from Customer’s internal onboarding process.

User Subscriptions are counted and billed at the end of each month. Customer will have the necessary access in order to track the number of Authorised Users, and a mechanism in which to remove such Authorised Users to scale the user count up and down.

All named Authorised Users covered by a User Subscription are provided access to the following:

1)         KOGNITWIN Collaborate, and

2)         KOGNITWIN API.

C. Add-On Subscription

Add-On Subscriptions are optional and enable Authorised Users to access the Application Suite and subscribe to Kongsberg Applications and Third Party Applications in addition to what is included in the standard User Subscription. An Authorised User is granted access to a collection of features through a particular Add-On Subscription through subscribing, by way of a Subscription Agreement, to the associated Add-On Subscription.

5. ACCEPTANCE AND AUTHENTICATION OF USERS

5.1 Acceptance

The integration and configuration of KOGNITWIN shall be deemed accepted by the Customer on execution of a Subscription Agreement corresponding to a relevant Asset.

5.2 Authentication and Authorisation of Users

Each Authorised User will be provided with a unique user ID (each, a “User ID”). Customer acknowledges and agrees that User IDs are specific to the applicable Authorised User and cannot be shared or used by more than one Authorised User. Any unauthorised use will render the Customer in breach of the Subscription Agreement and the Customer will be invoiced for each and any unauthorised usage.

Customer shall prevent unauthorised access to, or use of, KOGNITWIN, and shall notify KDI promptly of any such unauthorised use known to Customer.

Customer shall require each Authorised User to comply with the provisions of the Subscription Agreement, and Customer shall be responsible for all acts and omissions of all Authorised Users, including but not limited to unauthorised use of User IDs.

In order to access the KOGNITWIN Energy Service Platform, a Customer must at all times be covered by a valid and applicable Subscription Agreement.

All Authorised Users’ access to the KOGNITWIN Energy Service Platform shall occur through one of the following: a) a valid and applicable Subscription Agreement, or b) a valid and applicable Subscription Agreement, with Authorised User subscription through a Customer self-service in-Application user activation in the KOGNITWIN user interface, subject to availability of these functions, or through an external Customer-specific process where (i) Customer communicates the relevant credentials for the Authorised User along with requested KOGNITWIN access rights, and (ii) KDI activates such Authorised User with the associated privileges.

6. Data

6.1 Customer Data

KOGNITWIN provides data contextualization and data enrichment related functionality through the KOGNITWIN Services and is as such, unless otherwise expressly agreed between the Parties, not a system or record, source system or original data source for any Customer Data. Thus, Customer shall make available relevant Customer Data from a mutually agreed collection of Customer-managed data sources for access and processing by KOGNITWIN, in the format agreed to by KDI, where such format may include APIs. Customer is solely responsible for the quality of its Customer Data and any use of output data from KOGNITWIN (i.e. results of the data processed).

Customer will provide KDI with the timely, continuous and sufficient access to Customer Data and appropriate data sources, systems and infrastructure, as required, to perform the KOGNITWIN Services, including without limitation implementation, integration, configuration, setup, customization or any other relevant activity to onboard, activate or run the KOGNITWIN Services.

Customer shall provide timely and sufficient access for KDI to any Required Customer Equipment to the extent that performance of the KOGNITWIN Services requires access to such devices/equipment.

6.2 Personal Data

In the event Customer uploads or otherwise provides KDI with access to Personal Data pertaining to Authorised Users, KDI shall be deemed a data controller. The Customer is solely responsible to procure that it has a legal basis for such uploading and processing, and that Authorised Users have given the necessary consents to process such Personal Data (to the extent necessary), including but not limited to storing and transferring the data to KDI, its Affiliates and relevant Third Parties for processing. Personal Data will be processed in accordance with KONGSBERG’s Privacy Statement.

6.3 Right to Utilise Data

Customer acknowledges that KDI, its Affiliates and Third Parties may use any Customer Data processed on KOGNITWIN for the purpose of making available the KOGNITWIN Energy Service Platform and any relevant Applications to Customer and performing all necessary associated KOGNITWIN Services. KDI, its Affiliates and Third Parties may also utilize User Data in order to monitor and improve the relevant KOGNITWIN Services delivered to Customer.

KDI, its Affiliates and Third Parties may not use Customer Data which is deemed Confidential Information, unless such data is anonymized prior to use.

Any deviation from the aforementioned rights to the utilization of the Customer Data shall be handled by way of a standalone agreement between the Customer and the relevant party.

7. SECURITY

KDI will monitor network traffic for security reasons, i.e. preventing unauthorised attempts to access or cause damage to the KOGNITWIN Energy Service Platform, and the Customer expressly consents to such monitoring.

To ensure security, safety and efficiency in the KOGNITWIN, KDI bases its security management system on ISO 270001.

8. EQUIPMENT AND HARDWARE

Customer shall be responsible for obtaining and maintaining Required Customer Equipment to access and use the KOGNITWIN Services. Customer shall also be responsible for maintaining the security of the Required Customer Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment, with or without Customer’s knowledge or consent.

9.GRANT OF LICENSE AND IPR

9.1 License to Use

KDI grants Customer a limited, non-exclusive, non-transferable right to use KOGNITWIN for the duration of the term of the Service Subscription and the licensed rights shall expire upon the termination of the relevant Service Subscription Agreement for the relevant Asset. KDI will grant Customer’s Authorised Users specific access to functionality under the KOGNITWIN Services based on such Authorised Users’ valid Subscription Agreement.

KDI grants Customer a limited, non-exclusive, non-transferable right to use Applications for the duration of the relevant Subscription Agreement, subject to there being a valid Service Subscription in place at all times. KDI warrants that it has the relevant Affiliate and Third Party permissions to grant the Customer a limited, non-exclusive, non-transferable right to use Kongsberg Applications and Third Party Applications which KDI, at its sole discretion, makes available on the KOGNITWIN Energy Service Platform.

9.2 Open Source Software

Customer acknowledges and agrees that certain items of software included in KOGNITWIN and/or Services may be subject to "open source" or "free software" licenses ("Open Source Software") and that certain Open Source Software is subject to relevant license requirements. Customer further acknowledges and agrees that Open Source Software is not subject to the terms and conditions of sub-Clause 14.5 (Indemnification) or sub-Clause 9.2 (License to Use). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in these Terms of Use limits the Customer’s rights under, or grants Customer rights that supersede the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, KDI makes such Open Source Software, and KDI's modifications to that Open Source Software, available by written request.

9.3 Customer Data and IPR

Customer owns and retains all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. KDI acknowledges that it neither owns nor acquires any additional rights in or to the Customer Data and that Customer only grants to KDI a non-exclusive, non-transferable right and license to use, display, perform, process, reproduce, modify the Customer Data and sub-license such right to relevant Affiliates and Third Parties, solely as necessary to provide the KOGNITWIN Services to Customer.

Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. KDI is entitled to block access to Customer’s material that in KDI’s opinion is contrary to the provisions in these Terms of Use and shall notify Customer about blocking specific Customer Data.

9.4 KDI, Affiliates’ and Third Party IPR

KDI, its Affiliates and Third Parties shall at all times retain all right, title and interest in and to their respective Intellectual Property including without limitation the KOGNITWIN Energy Service Platform and all Intellectual Property Rights therein.

Customer shall grant to KDI a non-exclusive, royalty-free, worldwide, unlimited right to use and commercialise any Intellectual Property Rights in the form of add-on subscriptions, subscriptions or similar, created by KDI at Customer’s specific request under a relevant Subscription Agreement or any other relevant Agreement under these Terms of Use.

Customer and KDI may from time to time enter into specific agreements for co-development, co-investment or similar. The Parties agree that Intellectual Property Rights related to such special arrangements shall be handled in separate contract(s).

Development, maintenance and further additions of functionality in Add-On Subscriptions is KDI’s responsibility. All costs related to such activities are covered by KDI. All IP rights to the developed products shall belong to KDI. KDI will continually maintain and incrementally improve each Add-On Subscription and related collection of features. Whether or not newly developed functionality is included in an existing feature collection or added to new feature collections and subsequently made commercially available through Add-On Subscriptions shall always be decided by KDI at its sole discretion.

10. SUPPORT SERVICES

KDI will provide Support Services to the KOGNITWIN Services specified in the relevant Subscription Agreement in accordance with the terms of KDI's standard KOGNITWIN Energy Support & Service Level Agreement (“SLA”) which is located here.

KDI may, in its sole discretion, update, upgrade, enhance, or otherwise change the functionality of KOGNITWIN and/or the Services as part of its general offering (each, an “Update”). Customer acknowledges that such Updates may result in changes in the appearance and/or functionality of KOGNITWIN and/or KOGNITWIN Services, the Required Customer Equipment and/or that continued use of KOGNITWIN and/or KOGNITWIN Services may require the Customer to update Customer's own system, including new operating systems (e.g. IOS, Android or Windows) or web-browsers.

11. COPYRIGHT POLICY

KDI holds (or has obtained from Affiliates or Third Parties) necessary rights to all information, materials and services available on the KOGNITWIN Energy Service Platform.

The KOGNITWIN Energy Service Platform is subject to KDI or relevant Affiliate’s or Third Party’s copyright. All rights reserved. No part of the KOGNITWIN Energy Service Platform may be reproduced, transmitted or copied in any form or by any means without the prior written consent of KDI.

KDI reserves the right to suspend the access to and use of KOGNITWIN at any time if any Authorised User infringes copyright, upon KDI's receipt of notification by the copyright owner or the copyright owner's legal agent.

12. FEES AND PAYMENTS

The Customer’s use and access rights to KOGNITWIN shall be subject to due payment of the fees as contained within the relevant Subscription Agreement. Payment of all fees shall be made by Customer within thirty (30) days receipt of a valid invoice from KDI. In the event that any payment remains unpaid for a period of thirty (30) days from the original due date, KDI shall be entitled to suspend Customer’s access to KOGNITWIN until the fees are paid in full.

Customer shall pay for the KOGNITWIN Services in the currency stated in the Subscription Agreement.

All Subscription Agreements shall be considered commercially active from the beginning of the month in which they are activated.

13. AUDIT

KDI may, at its expense, audit the Customer's use of the KOGNITWIN Energy Service Platform, as well as verify the payment information. Any such audit shall be conducted during regular business hours at Customer’s facilities (or via electronic means) and shall not unreasonably interfere with the Customer’s business activities.

14. WARRANTIES & LIABILITY

14.1 KDI Warranty

KDI makes no representations about the suitability of KOGNITWIN, the information and/or Customer Data processed by KDI and the related graphics published as part of the KOGNITWIN Energy Service Platform. Customer  acknowledges that (a) complex software is never wholly free from defects, and KDI gives no warranty or representation that the KOGNITWIN Energy Service Platform will be wholly free from defects and that all such materials and related graphics, and the KOGNITWIN Services, are provided "as is" without warranty of any kind and (b) KDI will not and does not purport to provide any commercial, legal, taxation or accountancy advice etc. in relation to the KOGNITWIN Services. KDI hereby disclaims all warranties and conditions regarding the foregoing, including all warranties and conditions of merchantability, whether express, implied, or statutory, fitness for a particular purpose, title and non-infringement.

The materials and related graphics published on the KOGNITWIN Energy Service Platform may include technical inaccuracies or typographical errors. Changes are periodically added to the information herein.

14.2 Third Party Content

The KOGNITWIN Energy Service Platform contains offers, hypertext links, pointers to information, Applications, products and services created and maintained by Third Parties (“Third Party Content”). The views and opinions of authors expressed as part of Third Party Content do not necessarily state or reflect those of KDI.

14.3 Microsoft Cloud Services

KDI relies on the services of a reputable provider of cloud services for KOGNITIWN, Azure™, provided by Microsoft™ (hereinafter referred to as “Microsoft”).  Access to and use of KOGNITWIN is governed by the terms of Microsoft as applicable from time to time, including its risk distribution.

For the avoidance of doubt KDI does not undertake any obligations towards Customer which go beyond the obligations that Microsoft has undertaken against KDI.

Customer shall comply with the requirements for use of the Microsoft service undertaken by KDI according to Microsoft’s terms, conditions and Customer requirements.

KDI makes no warranties regarding Microsoft’s products or services. All and any warranties of merchantability and fitness for a particular or intended purpose, are specifically disclaimed by KDI and waived by the Customer to the fullest extent permitted by the applicable law. In particular, Customer acknowledges that it shall hold no further rights against KDI in case of loss of data or unauthorized distribution of or access to data than KDI would hold against Microsoft. Microsoft’s terms are available at www.microsoft.com.

14.4 Customer Warranty

Customer warrants and represents at all times that Customer (i) has the right and authority to grant all rights herein and to fully perform its obligations hereunder, and (ii) owns and/or has the right to use any and all Customer Data.

Customer also represents and warrants that any Customer Data hosted by KDI as part of the KOGNITIWN Services shall not (a) infringe any Intellectual Property Rights; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage KDI's, its Affiliates’ or Third Parties’ systems or data; (e) otherwise cause damage to KDI, an Affiliate or a Third Party; or (f) contain any special category Personal Data, as described in Article 9 of the EU General Data Protection Regulation 2016/679.

Customer will not, and will ensure that it’s Authorised Users will not, under any circumstances, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the KOGNITWIN Services or any software, documentation or data related to the KOGNITWIN Services, or (ii) modify, translate, or create derivative works based on KOGNITWIN and/or any Application Suite (except to the extent expressly permitted by KDI), or (iii) use the KOGNITWIN Services and/or Application Suite for timesharing or service bureau purposes or otherwise for the benefit of a third party, or (iv) remove any proprietary notices or labels.  

Customer agrees that any use of KOGNITWIN contrary to or in violation of the representations and warranties of Customer in this sub-Clause constitutes unauthorised and improper use of KOGNITWIN.

14.5 Indemnification

Customer agrees to save, indemnify, defend and hold harmless KDI, its Affiliates and any applicable Third Party from all claims, losses, damages, costs (including legal costs), expenses and liabilities, related to or arising out of the Customer’s breach of  Subscription Agreement(s). 

KDI agrees to save, indemnify, defend and hold harmless the Customer from any documented claims, losses, damages, costs (including legal costs), expenses and liabilities, related to or arising out of any use of the Customer Data in a manner which constitutes a breach of Clause 6 and sub-Clause 9.4 of these Terms of Use.

14.6 Limitation of Liability

TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OF WHATSOEVER NATURE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF CONTRACTS OR LOSS OF BUSINESS, ARISING OUT OF ANY BREACH OF THE RELEVANT SUBSCRIPTION AGREEMENT.

THE AGGREGATE LIABILITY OF KDI FOR ANY CLAIM WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION WILL UNDER NO CIRCUMSTANCES EXCEED THE TOTAL FEES PAID BY CUSTOMER TO KDI UNDER THE RELEVANT SUBSCRIPTION AGREEMENT DURING THE IMMEDIATELY PRECEDING 12-MONTH PERIOD BEFORE THE DATE ON WHICH THE CAUSE OF ACTION FIRST AROSE.

15. MISCELLANEOUS

15.1 Term, Termination and Suspension

These Terms of Use shall remain in force for the duration of the relevant Subscription Agreement(s).

The term of each subscription shall be as specified in the applicable Subscription Agreement. Except as otherwise specified in a Subscription Agreement, subscriptions will automatically renew for additional periods of twelve (12) months, unless either Party gives the other written notice at least ninety (90) days prior to the expiry of the current term stated in the Subscription Agreement.

Each Party may terminate the Subscription Agreement for cause and with immediate effect if the other Party: (i) is in material breach of any of its obligations hereunder and fails to remedy and cure the default within thirty (30)  days following written notice from the other Party, or (ii) commits a material breach of the Subscription Agreement which is not capable of remedy, or (iii) is repeatedly in breach of the Subscription Agreement, or (iv) is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into either voluntary, or compulsory liquidation or a receiver or administrator is appointed over their assets.

KDI may terminate any Subscription Agreement for convenience, subject to providing Customer with notification of such termination at least one hundred and eighty (180) days in advance.

KDI has the right to temporarily suspend access to the KOGNITWIN Services for the Customer and any individual Authorised Users and/or suspend any relevant subscription if (i) the Customer or any Authorised User is in breach of the provisions of the Subscription Agreement or any reasonable guidelines issued by KDI, or (ii) if the Customer has not paid subscription fees on or before the due date.

The Parties waive any right to terminate, rescind, or otherwise end the relevant Subscription Agreement on grounds other than those set out in these Terms of Use.

KDI is entitled to terminate any Subscription Agreement with immediate effect, should the Customer fail to comply with its payment obligations under a Subscription Agreement, and the KOGNITWIN Services have been suspended for a period of forty-five (45) days or more.

15.2 Effect of Termination

On termination of the Subscription Agreement, Customer’s access and user rights to KOGNITWIN shall cease.

If Customer terminates a Subscription Agreement in accordance with sub-Clause 15.1, Customer will pay the amounts owed to KDI for any portion of KOGNITWIN Services performed in accordance with the relevant Subscription Agreement up to the effective date of termination.

In the event the Customer terminates a relevant Subscription Agreement due to KDI’s, its Affiliates’ or Third Party breach, Customer shall be entitled to a pro-rata reimbursement of any subscription fees pre-paid for the remainder of the subscription term following the effective date of termination.

If KDI terminates the Subscription Agreement due to Customer’s breach, Customer shall not be entitled to any reimbursement of the subscription fees paid.

On termination, KDI shall hand over and return all Customer Data to Customer, as well as all Confidential Information belonging to Customer, in the same format as the data is stored by KDI, however, KDI and Customer acknowledge and agree that unless otherwise agreed in a specific Subscription Agreement, KDI will not provide storage for Customer Data. If the Customer requires Customer Data to be exported in a particular format, KDI shall use reasonable efforts to export the data and the Customer shall cover KDI's costs related to exporting data in a different format. For the avoidance of doubt, Customer shall under no circumstances have the right to extract  proprietary models, calculations logic, machine learning models, artificial intelligence models, simulation calculation models or formulas, data contextualization logic, data unification logic, model orchestration, integration, or any other Intellectual Property belonging to KDI, its Affiliates or any Third Party. KDI shall be entitled to retain one archival copy of Customer Data and Confidential Information belonging to the Customer, which shall be used only in case of a dispute concerning these Terms of Use, and for no other purposes whatsoever.

All Confidential Information belonging to KDI, an Affiliate or a Third Party shall be returned to KDI without undue delay.

16. CONFIDENTIALITY

Both Parties shall use all reasonable endeavours to avoid disclosure of Confidential Information obtained from the other Party.

Both KDI and Customer may disclose Confidential Information obtained from the other Party to its Affiliates and its and its Affiliates’ officers, directors, employees, consultants and representatives on a need to know basis in furtherance of performance of the KOGNITWIN Services, provided those Persons are bound by obligations of confidentiality and non-use at least as stringent as those appearing in these Terms of Use.

Each Party may, however, disclose such information which:

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

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

c) is rightfully received from a third party without an obligation of confidentiality;

d) is developed by the receiving party independently of the Confidential Information, and which can be evidenced by documentary records

These confidentiality obligations shall survive any termination or expiration of the relevant Subscription Agreement for a period of five (5) years following such termination or expiration.

17. CHANGES OR AMENDMENTS IN CONTRACTUAL TERMS

KDI may from time to time update these Terms of Use and the SLA which will be published on https://www.kongsberg.com/digital/kognifaiecosystem/trust-center/legal/. All such changes will take effect immediately. It is the responsibility of Customer to monitor such updates, and the continued use of KOGNITWIN after such revisions will constitute Customer's full acceptance of such changes. In the event Customer finds that the changes have an adverse effect, Customer shall notify KDI without undue delay. Should the Parties fail to reach an amicable resolution in sixty (60) days, the Customer has the right to terminate the relevant Subscription Agreement.

18. CHANGES IN THE SCOPE OF KOGNITWIN SERVICES

18.1 Cloud Resources

The KOGNITWIN Energy Service Platform is a cloud-based SaaS solution with underlying cloud infrastructure resources that support the KOGNITWIN Services and are managed by KDI, its Affiliates or Third Parties, as applicable.

If, at any time during performance of the KOGNITWIN Services, Customer exceeds an agreed limit or metric, e.g. the amount of data storage space, memory, computer processor units or other applicable cloud resources, used by KDI to render the KOGNITWIN Services, the Parties will endeavour to resolve the matter via the commercial arrangement in the relevant Subscription Agreement.

18.2 Variations

If Customer introduces changes to the agreed scope of the KOGNITWIN Services, KDI shall be entitled, at its sole discretion, to notify the Customer in writing of its proposal to implement the variation and the resulting adjustments to the fees under the Subscription Agreement, the time for performance and any other terms of the Subscription Agreement. For the avoidance of doubt, KDI shall have no obligation to implement such variation to the KOGNITWIN Services until the Parties have agreed upon its impact on the KOGNITWIN Services fee(s), time for performance and any other terms. KDI shall, at its discretion, be entitled to an extension of the time for performance under the Subscription Agreement upon the occurrence of any delay or increase in the time or resources needed for performing KOGNITWIN Services which is due to: (i) any force majeure circumstance, or (ii) changes in any laws or regulations occurring after the effective date of the Subscription Agreement, or (iii) any default or act or omission on the part of Customer, or its other contractors, customers, or any other party for which Customer is responsible, or (iv) delay, denial or cancellation of necessary export or import licenses. Any such extension of time shall be adequate and sufficient, taking into account the total effect of the occurrence on KDI’s performance of the KOGNITWIN Services.

Notwithstanding the foregoing, Customer may, as permitted under these Terms of Use and the relevant Subscription Agreement, change the number of Authorised Users subject to adjustments to the applicable subscription fees at the time in question.

KDI shall have no liability whatsoever, and Customer shall indemnify and hold harmless KDI from and against any claims, penalties, losses and damages suffered or incurred arising from or in connection with any reduction of availability of the KOGNITWIN Services caused by any changes in technical specifications, quality, integrity or similar, related to Customer Data introduced by Customer without reasonable advance notice to KDI.

19. NOTICES

All notices, requests, demands and other communications given or made in relation to these Terms of Use, shall be in English, in writing and shall be given either by registered mail or by e-mail to the individual(s) nominated in the relevant Subscription Agreement and shall be deemed to have been given when actually received.

20. LAW AND LEGAL VENUE

These Terms of Use and any action related thereto will be governed and interpreted by and under the laws of Norway, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in Oslo, Norway.

The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Use. The laws of the jurisdiction where Customer is located may be different from Norwegian law. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of KOGNITWIN.

Any dispute or difference arising out of or in connection with these Terms of Use, including any question regarding its existence, validity or termination, shall be finally settled in accordance with the Norwegian Arbitration Act (the "Rules"). It is agreed that (a) the dispute shall be settled by a sole arbitrator appointed in accordance with the Rules; (b) the place of arbitration shall be Oslo, Norway; (c) the language of arbitration shall be English; and (d) any arbitrator appointed must be fluent in written and spoken English. The arbitration award shall be final and binding upon both Parties.

21. ASSIGNMENT

If Customer takes any action of divestment (whether in whole or in part), corporate restructuring, farm-out, farm-in or any similar action would result in or is projected to require a re-assignment of ownership of Assets covered by the KOGNITWIN Services, any continuation of the KOGNITWIN Services and the survival of any Subscription Agreement shall be subject to review and advance approval by KDI at its sole discretion.

Customer shall, subject to KDI’s advance approval, be entitled to assign any relevant Subscription Agreement by way of an internal merger or demerger or other form of internal reorganization.

Notwithstanding anything to the contrary herein, KDI may assign any Subscription Agreement in its entirety, without prior consent of Customer, to its Affiliate or to any entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

22. FREEDOM OF ACTION

Nothing will restrict or limit KDI from performing any KOGNITWIN Services (or any other services) for any other entity in any industry, and KDI may in its sole discretion develop, use, market, license, offer for sale, or sell any software for any purposes.

23. FORCE MAJEURE

Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of the provisions of any Subscription Agreement if such delay is caused by a labour dispute,  fire, earthquake, flood, pandemic, epidemic, terror war, civil unrest or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.

24. ANNOUNCEMENTS, PUBLICITY AND MARKETING

The Parties shall agree upon any press releases or communications with similar effect relating to any Subscription Agreement or the performance of any obligations hereunder. Notwithstanding the foregoing, KDI shall be entitled to disclose the identity of the Customer for marketing purposes. KDI reserves the right to publish a notice about any Subscription Agreement, as well as use the Customer's name and logo for marketing purposes on Kongsberg.com/digital and KDI’s social media platforms.

Revised: March 2021