1. Kognifai Maritime Ecosystem
The Kognifai Maritime Ecosystem is a service developed and provided by Kongsberg Digital AS ("KDI") and its Affiliates, designed to support collaboration and knowledge sharing between its users ("User(s)").
The Kognifai Maritime Ecosystem consists of both hardware and software. The software component, the Kognifai Platform, includes a suite of services in the form of a number of Applications developed and owned by KDI or its Affiliates ("Kongsberg Applications") and a number of 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 ("Third Party Applications").
The User is responsible for enabling compatibility between the User’s own systems and electronic communication services used to access the Kognifai Maritime Ecosystem and to prevent unauthorised access to same. The User undertakes to use the Kognifai Maritime Ecosystem in accordance with applicable laws and regulations and with requirements set out herein. The User is responsible for the material and information that the User and its Authorised Users produce by using or accessing the Kognifai Maritime Ecosystem.
Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
"Affiliate" shall mean 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.
"Application(s)" means an individual software component or program that's designed to perform a specific function directly for the User or, in some cases, for another application program.
"Application Suite" means the suite of Applications contained on the Kognifai Platform and comprises Kongsberg Applications and Third Party Applications and any associated user interfaces and related technology that KDI makes available via Kognifai.
"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 clauses (a) through (f) of this sentence.
"Kognifai Platform" means the platform provided by KDI, including Application Suite, the technical interfaces, the platform portal and any related technology made available by KDI or its suppliers to the User. “Kognifai” or "Kognifai Services" shall have a correlative meaning.
“Kongsberg Hardware” means the edge device provided by KDI and/or its Affiliate and installed on the User’s vessel (or other relevant asset) to deliver the Kognifai Maritime Ecosystem service.
"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.
"Services" means the KDI services and software provided by Kognifai and made available to User as a hosted service (platform-as-a-service).
"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.
"Third Party" means a party other than KDI or the User, with who KDI has a contractual relationship with in respect to the Kognifai Services.
"Third Party Content" means content belonging to a Third Party as described in clause 9.2.
"User 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 User through use of the Kognifai Services.
3. Acceptance and authentication of users
The Kognifai Platform, Application Suite and Application(s) shall be deemed accepted by the User when the User has taken the Kognifai Services into use.
In the event the Parties agree a specific acceptance testing procedure, the User shall immediately and within the agreed test period perform the agreed acceptance testing when KDI notifies User that the Kognifai Services are ready for acceptance testing, solely to verify that the Kognifai Services perform as agreed.
3.2 Authentication and Authorisation of Users
Each Authorised User will be provided with a unique user ID (each, a "User ID"). User 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 User in breach of the Subscription Agreement and the User will be invoiced for each and any unauthorised usage.
User shall prevent unauthorised access to, or use of, the Kognifai Platform, and shall notify KDI promptly of any such unauthorised use known to User.
User shall require each Authorised User to comply with the provisions of the Subscription Agreement, and User shall be responsible for all acts and omissions of all Authorised Users, including but not limited to unauthorised use of User IDs.
4.1 User Data
User may upload User Data for processing on the Kognifai Platform in the format specified by KDI and on agreed APIs. User is solely responsible for the processing of User Data and any use of output data (i.e. results of the data processed).
4.2 Personal Data
In the event the User uploads (or otherwise supplies) Personal Data pertaining to the individuals affiliated with the User, KDI shall be deemed a data controller. The User is solely responsible to procure that it has a legal basis for uploading Personal Data, and that the 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 Personal Data to KDI, its Affiliates and Third Parties for processing.
Personal Data will be processed in accordance with KONGSBERG’s Privacy Statement.
4.3 Right to Utilise Data
User acknowledges that KDI, its Affiliates and Third Parties may use any User Data processed on Kognifai for the purpose of delivering the relevant Application to the User and performing all necessary associated Kognifai Services. KDI, its Affiliates and Third Parties may also utilize User Data in order to monitor and improve the Kognifai Services delivered to the User. KDI, its Affiliates and Third Parties may not use User 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 User Data shall be handled by way of a standalone agreement between the User and the relevant party.
5. Support services
KDI will provide the Support Services specified in the Subscription Agreement in accordance with the terms of KDI's standard Kognifai Maritime Support & Service Level Agreement.
KDI may, in its sole discretion, update, upgrade, enhance, or otherwise change the functionality of the Kognifai Platform and/or the Services as part of its general offering (each, an "Update"). User acknowledges that such Updates may result in changes in the appearance and/or functionality of the Kognifai Platform and/or Services, the Supported Environment and/or that continued use of the Kognifai Platform and/or Services may require the User to update User's own system, including new operating systems (e.g. IOS, Android or Windows) or web-browsers.
KDI will monitor network traffic for security reasons, i.e. preventing unauthorised attempts to access or cause damage to the Kognifai Platform, and the User expressly consents to such monitoring.
For more details on security and cookies, please access the Kognifai Trust Centre.
7. IPR AND GRANT OF LICENSE
All rights to the software included on the Kognifai Platform are retained by KDI, an Affiliate or a Third Party and subject to the license terms and conditions stated below.
7.2 Grant of License
KDI grants User 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 Affiliate and Third Party permissions to grant the User a limited, non-exclusive, non-transferable right to use Kongsberg Applications and Third Party Applications.
7.3 Open Source Software
7.4 User Data and IPR
User owns and retains all right, title and interest in and to the User Data and all Intellectual Property Rights therein. KDI acknowledges that it neither owns nor acquires any additional rights in or to the User Data and that User only grants to KDI a non-exclusive, non-transferable right to use, display, perform, process, reproduce, and modify the User Data and sub-license such right to its Affiliates and relevant Third Parties, solely as necessary to provide the Kognifai Services to User.
User shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data. KDI is entitled to block access to the User’s material that in KDI’s opinion is contrary to the provisions of the Subscription Agreement and shall notify the User about blocking specific User Data.
User shall notify KDI about any changes in the User Data and/or technical specifications (e.g. API) that impact the use of the User Data in the Kognifai Platform. If changes in the User Data or User's systems require changes in the Kognifai Services delivered by KDI, the User shall cover any reasonable costs incurred by KDI according to KDI's current price list.
7.5 Copyright Policy
KDI holds (or has obtained from Affiliates or Third Parties) the necessary rights to all information, materials and services available on the Kognifai Platform.
The Kognifai Platform is subject to KDI or relevant Affiliate's or Third Party’s copyright. All rights reserved. No part of the Kognifai 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 the Kognifai Services 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.
8. FEES AND PAYMENT
The User’s use and access rights to the Kognifai Platform shall be subject to due payment of the fees contained in the Subscription Agreement. Payment of all fees shall be made by User 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 the Kognifai Services until the fees are paid in full.
9. WARRANTIES AND LIABILITY
9.1 KDI Warranty
KDI makes 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 User acknowledges that (a) complex software is never wholly free from defects, and KDI gives 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 will not and does not purport to provide any commercial, legal, taxation or accountancy advice etc. in relation to the Kognifai 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 Kognifai Platform may include technical inaccuracies or typographical errors. Changes are periodically added to the information therein.
KDI has no responsibility with respect to any electronic communications services and/or computer network hardware used by User or any Authorised User to access 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.
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 User than Microsoft undertakes towards KDI, and the User acknowledges and agrees that KDI does not undertake any obligations towards User which go beyond the obligations that Microsoft has undertaken against KDI.
User 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 User to the fullest extent permitted by the applicable law. In particular, User 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.
9.4 User Warranty
User warrants and represents at all times that User (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 User Data, 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 Platform; or access or use the Kognifai Platform to develop derivative products or services which are intended to be functionally equivalent substitutes for the Kognifai Platform or parts thereof.
User also represents and warrants that any User 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; (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.
User agrees that any use of the Kognifai Services contrary to or in violation of the representations and warranties of User in this clause constitutes unauthorised and improper use of the Kognifai Services.
User agrees to indemnify, defend and hold harmless KDI, its Affiliates and any applicable Third Party from any liability, loss, claim and expense, including reasonable attorney's fees and expenses, related to or arising out of the User’s breach of the Subscription Agreement.
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 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 User 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 for any claim whether in contract, negligence or other tortious action will under no circumstances exceed USD 5.000.-
10.1 Ownership, Installation and Operation
Kongsberg Hardware provided to the User as part of the Kognifai Maritime Ecosystem remains the property of KDI and/or its Affiliates, unless otherwise agreed in writing.
The User 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 specifications.
10.2 Hardware Maintenance and Replacement
KDI and/or its Affiliate will maintain or replace Kongsberg Hardware provided to the User 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 User, the User 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, 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 has the right to temporarily suspend access to Kognifai Services for the User and any individual Authorised Users if (i) the User 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 User has not paid subscription fees on or before the due date.
KDI is entitled to terminate the Subscription Agreement with immediate effect, should the User fail to comply with its payment obligations of the subscription fees, and the Kognifai Services have been suspended for a period of forty-five (45) days or more.
11.2 Effect of Termination
On termination of the Subscription Agreement, the User's access and user rights to the Kognifai Services shall cease.
In the event the User terminates the Subscription Agreement due to KDI’s, its Affiliates’ or Third Party breach, User 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 User’s material breach, User shall not be entitled to any reimbursement of subscription fees paid.
KDI shall hand over and return all User Data to User, as well as all Confidential Information belonging to User, in the same format as the data is stored by KDI. If the User requires the data to be exported in a particular format, KDI shall use reasonable efforts to export the data and the User shall cover KDI's costs related to exporting data in a different format. KDI shall be entitled to retain one archival copy of User Data and Confidential Information belonging to User, which shall be used only in case of a dispute concerning the Subscription Agreement, and for no other purposes whatsoever. Any Confidential Information will remain subject to the confidentiality obligations contained herein, which shall survive termination of the Subscription Agreement.
All Confidential Information belonging to KDI, an Affiliate or a Third Party, and Kongsberg Hardware shall be returned to KDI without undue delay.
Both Parties shall use all reasonable endeavours to avoid disclosure of Confidential Information obtained from the other Party. Each Party may, however, disclose such information which:
- is already known to the receiving Party at the time the information was received;
- was, is or becomes part of the public domain other than through a fault of the receiving Party;
- is rightfully received from a third party without an obligation of confidentiality;
- is developed by the receiving Party independently of the Confidential Information, and which can be evidenced by documentary records.
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.
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. User 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 User is located may be different from Norwegian law. User shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable 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, or 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 money owed) will not be considered a breach of the provisions of the Subscription Agreement if such delay is caused by a labour dispute, fire, earthquake, flood, terror, war, epidemic, pandemic, 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.
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 shall be entitled to disclose the identity of the User for marketing purposes. KDI reserves the right to publish a notice about any Subscription Agreement on Kongsberg.com/digital and its social media platforms, as well as use the User's name and logo for marketing purposes on Kongsberg.com/digital.