Partner Agreement General Terms and Agreement
These Partner Agreement General Terms & Conditions ("GTCs") govern the cooperation between Kongsberg Digital AS ("KDI", "we", "us", or "our") and you or the entity on whose behalf you accept these terms ("you", "your", or "Partner"). Each a "Party" and collectively referred to as the "Parties".
These GTCs take effect when you and KDI execute the Partner Agreement (“Partner Agreement” or "Agreement") outlining the partnership between the Parties (the "Effective Date"). Partner represents to KDI that Partner is lawfully able to enter into binding agreements. If you are signing this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.
The contractual relationship between the Parties comprises the Partner Agreement and these GTCs. In the event of any discrepancy or conflict between the two documents, those contained in the Partner Agreement will prevail.
1 BACKGROUND & OBJECTIVE
The main objective of the Agreement is to provide the framework for a close and long-term cooperation between the Parties to create value for the Parties and their Customers, in accordance with what is outlined in the Partner Agreement.
2 SCOPE OF CO-OPERATION
The Parties intend to co-operate to on-board Partner's software and related documentation and technology etc. ("Partner's Technology"), as described in the Partner Agreement, on Kognifai as an integrated service (the "Integrated Service") to be offered to Customers.
Partner's Technology is to be provided by Partner as an "Off the shelf" cloud based solution with minimum configuration required in order to on-board it to Kognifai. The activities to be undertaken in order to enable Partner's Technology to be offered as an Integrated Service are described in the Clause 4. Any activities committing the Parties to specific customized deliverables or to joint development or customer projects shall be defined in separate project agreements.
The co-operation entails the following activities for sales and marketing of the Integrated Service to Customers:
a) Combining the "KONGSBERG" brand with Partner's brand in order to market and sell the Integrated Service through Kognifai and KDI sales & marketing channels (cf Clause 3).
b) Hosting the Integrated Service on Kognifai and enabling Customers to use the Integrated Service.
d) Using Kognifai billing services for collecting license fees for the Integrated Service.
e) Ensuring the KDI sales organisation are trained in Partner's Technology and are able to give the Customer advice on the functionalities and areas of use of the Integrated Service.
f) Ensuring that KDI technical sales & support are trained by Partner to assist Customers in configuring the Integrated Service.
g) Providing Support for the Integrated Service to Customers (Clause 9).
For the avoidance of doubt, both Parties shall be free to sign agreements with other parties regarding development, sales and delivery of their respective technologies as long as the principles and terms of the Agreement are not breached.
3 SALES AND MARKETING
The Parties shall pursue joint business opportunities that are consistent with the objectives set forth in Clause 1 above, and the sales and marketing activities shall be based on the following principles:
a) The Integrated Service shall be branded jointly with Partner and KDI branding on Kognifai.
b) KDI shall make reasonable efforts to sell the Integrated Service, directly, via agent’s/market representatives, or through other third parties.
c) Partner shall be free to market the Integrated Service globally, but KDI has the exclusive right to enter into contracts with the Customers for sales of the Integrated Service through Kognifai and/or Customer contracts.
d) Partner shall make all reasonable efforts to contribute to KDI's sales & marketing efforts and plans for launching the Integrated Service.
e) Partner shall be invited to participate in relevant user group meetings ("UGM"), conferences and exhibitions where the Integrated Service is marketed.
f) The Parties shall develop and maintain joint sales and marketing material, and plans for launching of the Integrated Service and enablement of KDI's sales, delivery and support personnel.
g) The Parties' overall sales and marketing responsibilities for the Integrated Service shall be as defined in the Partner Agreement.
4 TECHNOLOGY DEVELOPMENT
The Parties shall develop and maintain a joint technology development roadmap ("Joint Technology Roadmap") that shall contain the following:
a) A plan for Partner's development of Partner's Technology, utilizing the development tools available on Kognifai to on-board Partner's Technology to Kognifai,
b) Joint testing and certification of the Integrated Service, and responsibilities for development, testing and certification of the Integrated Service.
c) An overview of third party products included in the Integrated Service, including open source software, which for the avoidance of doubt should be in accordance with KDIs guidelines for use of open source software
d) An overview of and status of ongoing projects for development of the Integrated Service
e) Required changes to Partner's Technology and the Integrated Service to be compatible with new releases of KDI Technology, specifically the user authentication, billing and integration into Kognifai.
An initial, preliminary and non-binding version of the Joint Technology Roadmap may be included in the Partner Agreement.
In accordance with Clause 2 of these GTCs, jointly executed development projects shall be governed by separate agreements to the Agreement.
The Parties shall appoint one contact person from each Party to co-ordinate the activities contemplated in the Agreement.
The Parties shall meet regularly, or at the request of either Party, to review sales and marketing activities and results, the Joint Technology Roadmap and the status of technology development projects.
As a minimum, the Parties shall meet once every 12 months to:
• evaluate the sales, results and Customer feed-back
• discuss future business/plans
• discuss marketing and distribution strategy.
The Parties shall meet on a monthly basis to discuss, amongst other things;
• development of the Integrated Services,
• implementation and general progress regarding the Joint Technology Roadmap.
Meetings can be held at either Party's offices, or alternatively via conference call.
6 SOFTWARE LICENSES AND TRAINING COURSES FOR INTERNAL USE
KDI shall provide information to the Partner about Kognifai, KDI's development tools and related KDI Technology and courses needed to develop, test, train own personnel and sell the Integrated Service, free of charge.
Partner shall provide information to KDI about Partner's Technology, including but not limited to documentation, reports, customer reviews and other relevant material, and make its personnel available to KDI in order to develop, test, and train KDI's personnel to sell the Integrated Service, free of charge.
Partner's Technology and KDI Technology relevant for the Integrated Service can be made accessible for the Parties' internal use through licenses or through the Parties' development and test environments.
If made available as licenses, license fees for third party technologies and products necessary to use Partner's Technology shall be paid by KDI. Similarly, costs associated with licenses for third party technologies needed to use KDI Technology shall be paid by Partner, subject to the prior approval of each Party.
7 PRICING AND COMMERCIAL TERMS
In line with the overall scope of the Partner Agreement and the objectives referred to therein, the pricing and revenue sharing applicable for the sale of the Integrated Service on Kognifai shall be set out in Partner Agreement.
8 DISTRIBUTION AND SUB-LICENSING
Partner hereby grants to KDI a non-exclusive, non-transferable, worldwide license to distribute and sub-license Partner's Technology required to make the Integrated Service available to Customers in the manner envisaged by the Agreement.
KDI will make Partner's Technology and the Integrated Service available to Customers through Kognifai.
Licenses and/or subscriptions of Partner's Technology to Customers shall be managed in accordance with KDI's license management system.
The supply chain will be as follows:
• Customer orders the Partner Technology and/or the Integrated Service on Kognifai or via a sales contract directly.
• Partner supplies KDI with login, as required to access the Partner Technology and/or Integrated Service through Kognifai.
• KDI delivers the Partner Technology and/or Integrated Service and the application access to the Customer
Customer specific development & configuration will be provided by Partner, or by KDI if the appropriate training and agreement between the Parties has been met.
KDI will provide Front Desk Support ("Front Desk Support"), which will be the main point of contact for Customers. Front Desk Support includes resolving of issues relating to accessing the Integrated Services on Kognifai, basic functionality relating to Partner's Technology and the Integrated Service and interoperability with Kognifai. Partner acknowledges that KDIs Front Desk Support will be offered to Customer as specified in KDI's Support & Service Level Agreement, and the relevant tier of support elected by the Partner in the Partner Agreement.
The support is provided by KDI's support personnel.
KDI shall (at its own discretion) refer questions relating to more advanced functionality, technical issues attributable to Partner's Technology and/or the Integrated Services to Partner's support services ("Second Level Support" and "Third Level Support") as described in the paragraph below.
Second and Third Level Support will address issues raised by Customers and referred by Front Desk Support.
Second and Third Level Support is provided by each Party's support engineers with detailed knowledge of their respective technology and the Integrated Service. Second and Third Level Support shall resolve problems with all issues not handled by Front Desk Support, such as advanced installation and functionality, providing bug fixes and providing upgrades and new releases.
In accordance with Clause 2, any additional services requested by a Customer which are outside the scope of Front Desk Support or Second and Third Level Support will be agreed on a project by project basis, and be governed by a separate support agreement between the Parties, and or the Partner and the Customer directly.
10 INTELLECTUAL PROPERTY
Partner shall have full and complete ownership of all IP and IPR in and to the Partner Technology and your Integrated Service as well as all enhancements, developments, extensions and changes in and to the Partner Technology and the Integrated Service whether made prior to or after the date of the Agreement and regardless of whether made by you, KDI or a third party. KDI shall have no right of ownership, license or other limited rights concerning IP and IPR in or to the Partner Technology and the Integrated Service except as otherwise explicitly agreed in writing.
Notwithstanding anything stated to the contrary herein, KDI shall have full and complete ownership of all IP and IPR in and to the KDI Technology as well as all enhancements, developments, extensions and changes in and to the KDI Technology whether made prior to or after the date of the Agreement and regardless of whether made by you, KDI or a third party. Partner shall have no right of ownership, license or other limited rights concerning IP and IPR in or to the KDI Technology except as otherwise explicitly agreed in writing.
For the term of the Agreement, KDI hereby grants Partner a non-exclusive, non-transferable, license to use the KDI Technology required to use the Integrated Service for the purpose of enabling the Partner to perform its task and obligations according to the Agreement.
11 TERM, TERMINATION AND EFFECTS OF TERMINATION
The Partner Agreement shall come into force on the Effective Date and shall remain in force and effect for a period of 5 – five– years.
11.2 Termination for cause
Each Party may terminate the Agreement 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 30 – thirty – days following written notice to the other Party, or (ii) commits a material breach of the Partner Agreement which is not capable of remedy, or (iii) is repeatedly in breach of the 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. Written notice shall contain a proper description of the breach, a specific request for rectification, and a warning that failure to comply with the rectification request within 30 – thirty – days may lead to termination of the Agreement.
11.3 Termination for convenience
Each Party may terminate the Agreement at its convenience upon 6 – six – months prior written notice to the other Party.
11.4 Effects of termination
Termination of the Agreement shall be without prejudice to the other agreements entered into by the Parties.
Each Party undertakes to make all reasonable good faith efforts to contribute to the best possible closure of the collaboration in the best interest of both Parties.
Partner shall be entitled to offer Customers of the Integrated Service new subscription agreements that allow them to continue to use Partner's Technology (but not the Integrated Service) on an alternative platform. The Parties shall agree on a reasonable migration plan to migrate Customers to an alternative platform, including the Customer Data. During the migration period, the commercial provisions set out in the Agreement shall continue up until the last day of the migration period.
The Parties agree that upon termination for other reasons than breach that any joint commercial agreements shall be fulfilled at the agreed terms.
Neither Party may assign this Agreement without the prior written consent of the other Party. Either Party shall, however, be entitled to assign this Agreement by way of an internal merger or demerger or other form of internal reorganization provided that the successor in law of such internal merger or demerger or other form of internal reorganization is an affiliate of the original Party. An authorized successor in law shall be bound by the terms of this Agreement as if the successor in law was an original Party hereto, and either Party may for the sake of clarity require the successor in law to provide a separate written confirmation or undertaking thereof.
14 LIABILTY LIMITATION
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 Agreement.
Each Party enters into the Agreement on its own behalf and on behalf of and for the benefit of its affiliates. Any term of the Agreement may be varied, amended or modified, or the Agreement may be suspended, cancelled or terminated by either Party to it in accordance with its terms or otherwise by agreement in writing between the Parties to it, in each case without the consent of either Party's' affiliates.
16 PRIVACY AND SECURITY
The Parties shall sign a separate and standalone data processing agreement ("DPA") regulating their rights and obligations in respect to the handling of personal data.
Partner shall notify KDI immediately of any security breaches and/or vulnerabilities in the Partner Technology. Subject to Partner providing KDI with all the necessary source code, blueprints and information, KDI will have the responsibility to remedy any security breaches and/or vulnerabilities in the Partner Technology.
KDI shall be responsible for remedying any security breaches and/or vulnerabilities in Kognifai
17 GOVERNING LAW AND JURISDICTION
All matters pertaining to the Agreement and the relations between the Parties shall be conducted in the English language.
The Agreement and any matter arising from or in connection with it shall be governed by and construed in accordance with the laws of Norway.
Any dispute or difference arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination or the legal relationships existing by the Agreement, shall be finally settled in accordance with the Norwegian Arbitration Act (the "Rules"), which Rules are deemed to be incorporated by reference into this Clause 19. 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. The arbitration fee and reasonable costs of the other Party shall be borne by the losing Party. For the avoidance of doubt, this Article 15 shall not prevent either Party from seeking injunctive relief in the case of any breach or threatened breach by the other Party of any obligation of confidentiality or any infringement by the other Party of the first-named Party's' Intellectual Property Rights.
All matters pertaining to the Agreement and the relations between the Parties under the Agreement shall be conducted in English.
Each Party shall bear its own costs and expenses incurred in connection with its performance under the Agreement.
The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate optional, but all the counterparts shall together constitute the one agreement.
No counterpart shall be effective until each Party has executed and delivered at least one counterpart.
KDI shall be entitled to disclose the identity of the Partner for marketing purposes. KDI reserves the right to publish a notice about any Partner Agreement on Kognifai, as well as use Partner’s name and logo for marketing purposes on kongsberg.com/kognifai