1. KOGNIFAI MARITIME ECOSYSTEM
The Kognifai Maritime Ecosystem is a service developed by KDI, designed to support collaboration and knowledge sharing between its users. The Kognifai Maritime Ecosystem consists of Kongsberg Hardware, the Kognifai Platform and the Kognifai Services.
The Customer is responsible for enabling and maintaining compatibility between the Customer’s own systems and electronic communication services used to access the Kognifai Maritime Ecosystem and to prevent unauthorized access to same. The Customer shall use the Kognifai Maritime Ecosystem in compliance with Applicable Laws.
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 a Party; and control means directly or indirectly, controlling or owning more than fifty (50) percent of the outstanding voting rights or shares of an entity.
"Applicable Laws" means any applicable law, order, decree, ordinance, statute, regulation, rule, directive or decision issued by any country, state, governmental body or authority, including any acts issued by the European Union, as well as all applicable case law, binding recommendations and binding guidelines by relevant regulatory bodies on the above (as applicable in the case concerned) that are applicable to the activities performed under the Subscription Agreement in any of the jurisdictions where they are performed from time to time.
"Application(s)" means an individual software component or program that's designed to perform a specific function directly for the Customer or, in some cases, for another application program. "Kongsberg Applications" means Applications developed and owned by KDI or its Affiliates and "Third Party Applications" means Applications developed and owned by Third Parties who have a contractual relationship with KDI and are permitted to make such Third Party Applications available on Kognifai.
"Application Suite" means the suite of Applications contained on the Kognifai Platform and comprises Kongsberg Applications and Third Party Applications and associated user interfaces and related technology that KDI makes available via Kognifai Services.
“Associates” means, in respect of each Party, any of its Affiliates and its or its Affiliates’ members, shareholders, officers, directors, employees, third party attorneys, accountants, advisors, consultants and in case of KDI, Third Parties.
"Confidential Information" means any and all non-public, proprietary and/or confidential information (whether or not it is identified as such) disclosed by a Party, regardless of whether such information is disclosed verbally, electronically, visually, or in a written or other tangible form. Confidential Information includes, but is not limited to, Customer Data, trade secrets, computer programs, software, formulas, inventions, techniques, documentation, marketing plans, strategies, forecasts and Affiliate and Third Party confidential information.
“Customer” means any entity that has entered into a valid Subscription Agreement for use of the Kognifai Services.
"Customer Data" means any information and/or data, including all text, sound, video, or image files, Personal Data and software, provided to KDI by, or on behalf of, the Customer in relation to or connection with the use of the Kognifai Services.
"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 interfaces ("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 any Applicable Laws, including: (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 clauses (a) through (f) of this sentence.
"Kognifai Platform" means the platform developed by KDI, including the Application Suite, the technical interfaces, the platform portal and related technology made available by KDI and its Associates. “Kognifai” shall have a correlative meaning.
“Kognifai Services” means any services and/or Applications made available through Kognifai and to which the Customer has subscribed to pursuant to a Subscription Agreement.
“Kongsberg Hardware” means the edge device provided by KDI and/or its Affiliate and installed on the Customer’s vessel (or other relevant asset) to deliver the Kognifai Services.
"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.
"Support Services" means the support services described in clause 5.
"Supported Environment" means the minimum hardware, software, electronic communications services and connectivity configuration specified from time to time by KDI, required to access and use the Kognifai Services.
“Tax” or “Taxes” shall mean all federal, regional, local, income, alternative minimum, gross receipts, sales, value added, transfer, franchise, withholding, payroll, excise, stamp, environmental, custom, duty or other tax, governmental fee or other similar, together with any interest, penalty, addition to tax, as imposed by any Applicable Laws or taxing authority.
"Third Party" means a party other than KDI or the Customer or their respective Affiliates, who a) is a contractor of KDI, assisting KDI in the provision of Kognifai Services to the Customer or b) is the provider of an Application, to which the Customer has subscribed to via the Subscription Agreement or c) is a contractor of an Application provider, assisting such provider in the provision of an Application the Customer has subscribed to via the Subscription Agreement.
"Third Party Content" means content belonging to a Third Party as described in clause 9.2.
3. AUTHENTICATION OF USERS
Each Authorized 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 Authorized User and cannot be shared or used by more than one Authorized User. Any unauthorized use will render the User in breach of the Subscription Agreement and the User will be invoiced for each and any unauthorized usage.
Customer shall prevent unauthorized access to, or use of, the Kognifai Services and shall notify KDI promptly of any such unauthorized use known to Customer.
4.1 CUSTOMER DATA
Customer may upload Customer Data for processing on the Kognifai Platform in the format and structure specified by KDI and on agreed APIs.
Customer shall have the sole responsibility for the accuracy, quality, usability, integrity, legality, reliability, and appropriateness of all Customer Data and that the Customer Data is fit for Customer’s purposes, including the Customer’s purpose for using the Kognifai Services. Unless agreed otherwise, Customer is responsible for its own back-up of Customer Data.
Customer is also responsible for any use of output data (i.e., results of the data processed) by Customer or its Authorized Users and KDI and its Associates shall have no responsibility for the Customer's use of such output data.
KDI is entitled to block access to parts of Customer Data that in KDI’s opinion are contrary to clause 9.4 below or the provisions of the Subscription Agreement and shall notify the Customer about blocking specific Customer Data.
Customer shall notify KDI about any changes in the Customer Data and/or technical specifications (e.g., API) that impact the use of Customer Data in the Kognifai Platform. If changes in the Customer Data or Customer's systems require changes in the Kognifai Services delivered by KDI, the Customer shall cover any reasonable costs incurred by KDI according to KDI's current price list.
4.2 PERSONAL DATA
In the event the Customer uploads (or otherwise supplies) KDI with Personal Data pertaining to the Authorized User, KDI shall be deemed a data controller. Customer is solely responsible to procure that it has a legal basis for uploading Personal Data, and that the Authorized Users have given the necessary consents to process such Personal Data (to the extent necessary), including but not limited to storing and transferring the Personal Data to KDI and its Associates for processing.
Personal Data will be processed in accordance with Kongsberg's Privacy Statement.
4.3 RIGHT TO UTILISE CUSTOMER DATA
Customer owns and retains all right, title and interest in and to the Customer Data.
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 to use the Customer Data during the term of the Subscription Agreement as described in this clause 4.3 and sub-license such right to its Associates.
KDI and its Associates are granted the right to access, collect, store, aggregate, analyze or otherwise use Customer Data for: a) providing the Kognifai Services; (b) monitoring, preventing, detecting and fixing issues related to the security and operation of Kognifai Services; (c) improving and developing the Kognifai Services; and (d) creating benchmarking and statistical analysis (collectively “Analysis”), provided that the Customer Data is first anonymized. Improvements and developments under item c) and Analysis under item d) shall be exclusively owned by KDI or its Associates.
KDI shall not share Customer Data with third parties, other than in accordance with the terms of this Agreement.
Any deviations from the aforementioned rights to the utilization of the Customer Data shall be agreed in the Subscription Agreement or by KDI obtaining prior written approval from Customer.
5. SUPPORT SERVICES
KDI will provide the Support Services specified in the Subscription Agreement in accordance with the terms of the Kognifai Maritime Support & Service Level Agreement, published HERE.
KDI may, in its sole discretion, update, upgrade, enhance, or otherwise change the functionality of the Kognifai Platform and/or the Kognifai Services, including 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 the Kognifai Platform and/or Kognifai Services, the Supported Environment and/or that continued use of the Kognifai Platform and/or Services may require the Customer to update Customer's own system, including new operating systems (e.g., IOS, Android or Windows) or web-browsers.
KDI may monitor network traffic for security reasons, e.g., preventing unauthorized attempts to access or cause damage to the Kognifai Platform, and the Customer expressly consents to such monitoring.
To ensure security, safety and efficiency, KDI bases its security management system on ISO 270001.
For more details on security and cookies, please access the Kognifai Trust Centre.
7. IPR AND GRANT OF LICENSE
KDI and its Associates shall at all times retain all right, title and interest in and to their respective Intellectual Property including without limitation the Kognifai Maritime Ecosystem and the Kognifai Services, and all Intellectual Property Rights therein and thereto.
7.2 GRANT OF LICENSE
KDI grants Customer a limited, non-exclusive, non-transferable right to use Kognifai Services for the duration of the subscription term and the licensed rights shall expire upon the termination of the Subscription Agreement. KDI warrants that it has the relevant Associates’ permissions to grant the Customer a limited, non-exclusive, non-transferable right to use the Kongsberg Applications and Third Party Applications which the Customer has subscribed to via the Subscription Agreement.
7.3 OPEN SOURCE SOFTWARE
7.4 COPYRIGHT POLICY
KDI holds (or has obtained from its Associates) the necessary rights to all information, materials and services available on the Kognifai Platform.
The Kognifai Services are subject to KDI’s and its Associates’ copyright and all rights are reserved. No part of the Kognifai Services 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 the Kognifai Services at any time if any Authorized User infringes, or is alleged to infringe copyright, upon KDI's receipt of notification by the copyright owner or the copyright owner's legal agent.
8. FEES AND PAYMENT
The Customer’s use and access rights to the Kognifai Services shall be subject to the timely payment of the fees contained in the Subscription Agreement. Payment of all fees shall be made by Customer within thirty (30) days receipt of a valid invoice from KDI. KDI is entitled to charge late payment interest on any late payment in accordance with the Norwegian Interest on Overdue Payments Act, calculated from the first day of late payment.
Customer shall pay for the Kognifai Services in the currency stated in the Subscription Agreement. All prices are exclusive of sales, use, value added (VAT), Goods and Service (GST), and similar indirect taxes, import taxes and custom duties, whether imposed currently or in the future. In the event KDI is required to pay any such indirect taxes, Customer shall reimburse KDI according to KDI’s instructions.
If any Taxes, which are not excluded under the preceding paragraph, are required by Applicable Laws to be withheld from amounts paid or payable to KDI, the Customer shall: (i) gross-up the price for the Tax, (ii) withhold and remit such Tax as required by Applicable Laws to the applicable tax jurisdiction, (iii) furnish to KDI without undue delay, and under no circumstances later than hundred and eighty (180) days, a tax certificate from the relevant tax authority, or, if not available, other acceptable proof of payment of the Taxes paid to establish the withholding amount, its recipient, and its basis, as required by the Customer’s tax authorities.
To the extent beneficiary Tax rates are available under item (iii) in the preceding paragraph, KDI shall provide to the Customer a Certificate of Residence document prior to payments being made.
Customer is responsible for paying all Taxes associated with its purchase(s) under the Subscription Agreement. For the avoidance of doubt, KDI shall always be responsible for KDI’s income tax. Any increase or other changes in Taxes shall be carried by the Customer or KDI in accordance with the liability for such Taxes in the paragraphs above.
The Customer may direct KDI in writing to invoice any of its Affiliates for sums payable under the applicable Subscription Agreement. Such direction from Customer must include a reference to the applicable vessel(s) and the name, registration number, email and invoicing address of the Affiliate. Customer shall indemnify KDI in the event that any such Affiliate fails to make payment of a valid invoice from KDI in accordance with the applicable Subscription Agreement. KDI may reject such Customer direction if it believes that such transaction will or may be in violation of any Applicable Laws. Customer shall not direct KDI to issue invoices to an Affiliate which is directly or indirectly subject to sanctions where “sanctions” means any applicable economic, trade or financial sanctions laws, export control laws regulations, embargoes, or restrictive measures enforced, enacted or administered by any relevant and applicable authority. Customer shall indemnify and hold KDI harmless with respect to all losses, damages, claims, expenses (including without limitation legal fees), fines and judgments incurred by KDI as a result of or in connection with KDI, at Customer’s direction, invoicing and receiving payments from an Affiliate, which is directly or indirectly subject to sanctions as defined herein.
All fees are subject to an annual price increase pursuant to the Norwegian Consumer Price Index (12-month rate), published at Statistics Norway, with the first adjustment taking place twelve (12) months following the Subscription Agreement effective date.
9. WARRANTIES AND LIABILITY
9.1 KDI’S REPRESENTATIONS AND WARRANTIES
KDI AND ITS ASSOCIATES MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE KOGNIFAI SERVICES, THE INFORMATION CONTAINED IN THE MATERIALS AND RELATED GRAPHICS PUBLISHED AS PART OF THE KOGNIFAI SERVICES. THE CUSTOMER ACKNOWLEDGES THAT (A) COMPLEX SOFTWARE IS NEVER WHOLLY FREE FROM DEFECTS, AND KDI AND ITS ASSOCIATES GIVE NO WARRANTY OR REPRESENTATION THAT THE KOGNIFAI SERVICES WILL BE WHOLLY FREE FROM DEFECTS AND THAT ALL SUCH MATERIALS AND RELATED GRAPHICS, AND THE KOGNIFAI SERVICES, ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND (B) KDI AND ITS ASSOCIATES WILL NOT AND DO NOT PURPORT TO PROVIDE ANY COMMERCIAL, LEGAL, TAXATION OR ACCOUNTANCY ADVICE ETC. IN RELATION TO THE KOGNIFAI SERVICES. KDI AND ITS ASSOCIATES HEREBY DISCLAIM 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 Kognifai Platform may include technical inaccuracies or typographical errors. Changes are periodically added to the information therein.
KDI and its Associates have no responsibility with respect to any electronic communications services and/or computer network hardware used by Customer or any Authorized User to access the Kognifai Services.
KDI shall take commercially reasonable measures to ensure that no viruses, worms or other malicious computer programming codes intended to damage the Customer’s or its Associates’ systems or data are introduced through the Kognifai Services.
9.2 THIRD PARTY CONTENT
The Kognifai 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 or its Affiliates.
9.3 MICROSOFT CLOUD SERVICES
KDI relies on the services of a reputable provider of cloud services for the purpose of the Kognifai Services, Azure™, provided by Microsoft™ (hereinafter referred to as “Microsoft”). Access to and use of the Kognifai Services is governed by the terms of Microsoft as applicable from time to time, including its risk distribution.
KDI is not in a position to undertake further obligations towards Customer than Microsoft undertakes towards KDI, and the Customer acknowledges and agrees that 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 user 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 unauthorised distribution of or access to data than KDI would hold against Microsoft. Microsoft’s terms are available at www.microsoft.com.
9.4 CUSTOMER REPRESENTATIONS AND WARRANTIES
During the term of the Subscription Agreement, Customer warrants and represents 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 for the purposes of the Subscription Agreement, and (iii) shall not and shall not permit Authorised Users to copy, reproduce, modify, adapt, transmit, translate, reverse engineer, decompile or disassemble any part of the Kognifai Services; or access or use the Kognifai Services to develop derivative products or services which are intended to be functionally equivalent substitutes for the Kognifai Services or parts thereof.
Customer also warrants and represents that any Customer Data hosted by KDI as part of the Kognifai Services shall not (a) infringe any Intellectual Property Rights; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; or (d) contain any special category Personal Data, as described in Article 9 of the EU General Data Protection Regulation 2016/679.
Customer shall take commercially reasonable measures to ensure that there are no viruses, worms or other malicious computer programming codes intended to damage KDI's and its Associates’ systems or data in its Customer Data.
Customer agrees that any use of the Kognifai Services contrary to or in violation of the representations and warranties of Customer in this clause constitutes unauthorised and improper use of the Kognifai Services.
KDI agrees to indemnify, defend and hold harmless the Customer from any liability, loss, claim and expense, including reasonable attorney's fees and expenses, related to or arising out of any use of the Customer Data in a manner which constitutes a breach of clauses 4.2 and 4.3.
9.6 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 DAMAGES FOR LOSS OF PROFITS, LOSS OF CONTRACTS OR LOSS OF BUSINESS, ARISING OUT OF TORT (INCLUDING NEGLIGENCE), CONTRACT, CASE LAW OR ANY OTHER LEGAL DOCTRINE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE AGGREGATE LIABILITY OF KDI AND ITS ASSOCIATES FOR ANY CLAIM WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION WILL UNDER NO CIRCUMSTANCES EXCEED THE TOTAL FEES PAID BY CUSTOMER TO KDI DURING THE IMMEDIATELY PRECEDING 12-MONTH PERIOD BEFORE THE DATE ON WHICH THE CAUSE OF ACTION FIRST AROSE. IN THE EVENT THE KOGNIFAI SERVICES ARE PROVIDED FREE OF CHARGE UNDER THE RELEVANT SUBSCRIPTION AGREEMENT THEN THE AGGREGATE LIABILITY OF KDI AND ITS ASSOCIATES FOR ANY CLAIM WHETHER IN CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION WILL UNDER NO CIRCUMSTANCES EXCEED EUR 5.000.-. FOR THE AVOIDANCE OF DOUBT, THE LIMITATIONS OF LIABILITY IN THIS CLAUSE 9.6 APPLY TO THE INDEMNITIES IN CLAUSE 9.5.
10.1 OWNERSHIP, INSTALLATION AND OPERATION
Kongsberg Hardware provided to the Customer as part of the Kognifai Maritime Ecosystem remains the property of KDI and/or its Affiliates, unless otherwise agreed in writing. KDI and/or its Affiliate shall deliver the Kongsberg Hardware under Incoterms 2020, FCA Horten, for fees specified in the Subscription Agreement.
Customer is responsible for the installation and operation of the Kongsberg Hardware with due care and diligence, in accordance with KDI’s and/or its Affiliates’ guidelines and installation instructions Onboard installation by KDI and/or its Affiliate, and related travel and accommodation expenses, are not included in the Kognifai Services and if requested by Customer, will be invoiced at KDI’s standard rates.
10.2 HARDWARE MAINTENANCE AND REPLACEMENT
KDI and/or its Affiliate will maintain or replace Kongsberg Hardware provided to the Customer whilst the Subscription Agreement remains in force. Such maintenance and/or repair shall be undertaken in accordance with clause 5.
Should the need for maintenance and/or replacement of Kongsberg Hardware be attributable to the mishandling, misuse or negligence of the Customer, the Customer will compensate KDI for all maintenance and/or replacement costs incurred, inclusive of any applicable installation and shipment costs.
11.1 TERM, TERMINATION AND SUSPENSION
The term of each subscription shall be as specified in the applicable Subscription Agreement. Except as otherwise specified in the Subscription Agreement, the subscription term 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 or renewal term, cancelling the Subscription Agreement in whole or in part.
Each Party may terminate the Subscription Agreement in whole or in part 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 has the right to temporarily suspend access to Kognifai Services for the Customer and any individual Authorized Users if (i) the Customer or any Authorized 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 the fees contained in the Subscription Agreement by the due date.
11.2 EFFECT OF TERMINATION
On termination of the Subscription Agreement, the Customer’s access and rights to the Kognifai Services shall cease.
In the event the Customer terminates the Subscription Agreement due to KDI’s or its Associates’ 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.
Should KDI terminate the Subscription Agreement due to Customer’s material breach, Customer shall not be entitled to any reimbursement of subscription fees paid. Should KDI terminate for convenience, 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.
Confidential Information shall be deleted upon termination of the applicable Subscription Agreement, in accordance with clause 11.3 below.
Kongsberg Hardware shall be returned to KDI without undue delay.
Each Party undertakes to, and shall cause their respective Associates, in each case having a need to know related to the Subscription Agreement, to:
(a) keep confidential all Confidential Information disclosed to it by or on behalf of the disclosing Party;
(d) take commercially reasonable steps to prevent unauthorized access to, or use of, the disclosing Party’s Confidential Information.
The receiving Party shall promptly notify the disclosing Party upon discovery of any unauthorized use or disclosure of the disclosing Party’s Confidential Information. The receiving Party is responsible for any breach by its Associates of the provisions of this clause 11.3.
The obligations and limitations set forth in this clause 11.3 regarding Confidential Information shall not apply to information, which:
(b) is at any time received by the receiving Party or its Associates from a third party, without any obligation of confidentiality;
(c) was known to or lawfully in the possession of the receiving Party or its Associates prior to receipt of the same from the disclosing Party, as evidenced by written records;
(d) was or is demonstrably independently developed by the receiving Party or its Associates, without reference or reliance on Confidential Information received from the disclosing Party.
(e) is required by Applicable Laws or listing rules to be disclosed by the receiving Party, provided however, that prior to the disclosure of Confidential Information by reason of such requirements, the receiving Party shall, to the extent that it is allowed to do so, (i) inform the disclosing Party of the circumstances of the proposed disclosure, (ii) consult with the disclosing Party as to the wording of the disclosure and take possible steps to limit any adverse effects of the disclosure, (iii) comply with reasonable requirements from the disclosing Party in relation to the disclosure, and (iv) to the extent possible gain assurances and/or undertakings as to confidentiality from the body to whom the information is to be disclosed.
The Parties shall and shall cause their respective Associates who receive any Confidential Information, to promptly delete all Confidential Information upon termination of the applicable Subscription Agreement, unless otherwise agreed in writing between the Parties. Notwithstanding the foregoing, KDI and its Associates may retain any portions of Customer Data for the purposes of and in accordance with clause 4.3 c) and 4.3 d).
Notwithstanding anything to the contrary herein, KDI has the right to, without prior notice or approval, assign or transfer any of its rights and obligations to (a) any Affiliate or (b) to any entity in the event of a transfer of KDI’s business related to Kognifai. Customer shall not, without KDI’s prior written consent, assign or otherwise transfer any or all of its rights or obligations under the Subscription Agreement.
11.5 LAW AND LEGAL VENUE
The Subscription Agreement 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 the Subscription Agreement. The laws of the jurisdiction where Customer is located may be different from Norwegian law. Customer shall always comply with all Applicable Laws that apply to its purchase and use of the Kognifai Services.
Any dispute or difference arising out of or in connection with the Subscription Agreement, 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.
11.6 FREEDOM OF ACTION
Nothing will restrict or limit KDI from performing Kognifai 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, and sell any software for any purposes.
11.7 FORCE MAJEURE
Any delay in the performance of any duties or obligations of either Party (except the payment of any amounts owed) will not be considered a breach of the provisions of the Subscription Agreement if such delay is caused by, restrictions or changes in Applicable Laws, epidemics or pandemics, labor disputes, acts of God, terror, war, civil unrest, third-party mechanical or other equipment breakdowns, fire, explosions, fiber optic cable cuts, interruption or failure of telecommunication or digital transmission links, Internet failures or delays, cyber-attacks, storms 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.
11.8 ANNOUNCEMENTS, PUBLICITY AND MARKETING
The Parties shall agree upon any press releases or communications with similar effect relating to the Subscription Agreement or the performance of any obligations hereunder. Notwithstanding the foregoing, KDI, its Affiliates and Third Parties (to which the Customer has subscribed to via the Subscription Agreement), may publish a notice about any Subscription Agreement, as well as use the Customer's name and logo for marketing purposes on their respective websites and social media platforms. The Customer grants KDI, its Affiliates and Third Parties (to which the Customer has subscribed to via the Subscription Agreement) the right to use the Customer’s Intellectual Property Rights pertaining to the Customer’s name and logo solely for this purpose.