1. KOGNIFAI PLATFORM AND APPLICATION SUITE
Kognifai is a digital ecosystem developed by and provided by Kongsberg Digital AS ("KDI") designed to support collaboration and knowledge sharing between the users of Kognifai ("Customer(s)").
The Kognifai Platform includes a suite of Services which includes a number of Applications developed and owned by KDI ("KDI 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 the Kognifai Platform ("Third Party Applications").
Customer is responsible for enabling compatibility between Customer's own systems and electronic communication services used to access the Services and to prevent unauthorised access to Services and undertakes to use the Service in accordance with the applicable law and regulations and in accordance with licenses and requirements set out in this Agreement. The Customer is responsible for the material and information that the Customer and its Authorised User produce by using the Service or accessing the Service.
Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
"Access Protocols" means the passwords, access codes, Kognifai specific User ID, technical specifications, connectivity standards or protocols, or other relevant procedures that are necessary to allow each Authorised User to access the Services, as communicated by KDI to Customer.
"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" 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 KDI 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, data, inventions, techniques, documentation, marketing plans, strategies, forecasts and Third Party confidential information.
"Customer Data" means all electronic data or information, including all text, sound, video, or image files, and software, that are provided to KDI by, or on behalf of, Customer through use of the Kognifai Services.
"Documentation" means the technical materials provided by KDI to Customer in hard copy or electronic form describing the use and operation of the Kognifai Platform and specific KDI Applications.
"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 Customer. "Kognifai" and "Kognifai Services" shall have a correlative meaning.
"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 on KDI's Kognifai Platform and made available to Customer 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 Services.
"Third Party" means any party other than KDI or the Customer
"Third Party Content" means content belonging to a Third Party as described in 9.2.
3. ACCEPTANCE AND AUTHENTICATION OF USERS
The Kognifai Platform, Application Suite and Application shall be deemed accepted by the Customer when the Customer has taken the Services into use.
In the event the Parties agree a specific acceptance testing procedure the Customer shall immediately and within the agreed test period ("Acceptance Testing Period") perform the agreed acceptance testing when KDI notifies Customer that the Services are ready for acceptance testing, solely to verify that the Services performs as agreed (the "Platform Acceptance Criteria").
3.2. Authentication and Authorisation of Users
Customer shall prevent unauthorised access to, or use of, the Kognifai Platform, and shall notify KDI promptly of any such unauthorised use known to Customer.
4.1. Customer Data
Customer may upload Customer Data for processing on the Kognifai Platform in the format specified by KDI and on agreed APIs.
Customer is solely responsible for the processing of Customer Data and any use of output data (i.e. results of the data processed).
KDI shall not disclose any Customer Data which is deemed personal or confidential to Third Parties.
4.2. Personal Data
In the event the Customer uploads Personal Data pertaining to the individuals affiliated with the Customer as part of Customer Data, KDI shall be deemed a data processor ("Processor") and Customer shall be deemed a data controller ("Controller"). The Customer is solely responsible to procure that the Customer has a legal basis for such processing, and that the Authorised Users have given the necessary consents to process any user specific data (to the extent necessary), including but not limited to storing and transferring the data to KDI or its affiliates for processing and presenting the Customer Data and other data provided by the Customer and/or the Authorised Users.
If relevant, KDI and Customer shall enter into a standalone data processing agreement regulating the responsibilities of the Processor and the Controller, including but not limited to how such data may be transferred for storage and processing, and relevant measures required pursuant to the Norwegian Personal Data Act and Regulations.
4.3. KDIs right to utilise data
Customer acknowledges that KDI may use any data (including Customer Data) processed on Kognifai for KDI's own monitoring and tuning performance of the Kognifai Services and other purposes such as modifications, improvements and any other further development of KDI's Services. KDI may not use Customer Data which is Confidential or which is deemed Personal Data unless such data is anonymized prior to KDI's internal use.
KDI may also be entitled to use the Customer Data in order to deliver the relevant Application to the Customer, and perform all necessary associated Services.
5. SUPPORT SERVICES
KDI will provide the Support Services specified in the Subscription Agreement in accordance with the terms of KDI's Support & Service Level Agreement.
KDI will provide reasonable support by telephone and e-mail relating to access to the Kognifai Platform.
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"). Customer 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 Customer to update Customer's own system, including new operating systems (e.g. IOS, Android or Windows) or web-browsers.
6. PRIVACY SECURITY AND HEALTH
Personal Data processed by KDI to provide access to the Kognifai Platform will be processed in accordance with KDI's Privacy Statement.
KDI will monitor network traffic for security reasons, i.e. preventing unauthorised attempts to access or cause damage to Kognifai Platform, and the Authorised User expressly consents to such monitoring.
6.3. Cookies and usage information
For more details, please access KDI's Privacy Statement.
7. OWNERSHIP (IPR) AND GRANT OF LICENCE
All rights to the software included in the KDI Applications and the Kognifai Platform are retained by KDI and subject to KDI's license terms and conditions stated below.
7.2. Grant of license
KDI grants Customer a limited, non-exclusive right to use the Service for the duration of the term and the licensed rights shall expire upon termination of the Subscription Agreement.
7.3. Open Source Software
7.4. Customer Data
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, reproduce, and modify the Customer Data, solely as necessary to provide the Services to Customer and, provided that such information does not identify and is not specific to Customer, to expand KDI's database of generic and generally available information.
Customer shall notify KDI about any changes in the Customer Data and/or technical specifications (e.g. API) that impact the use of the Customer Data in the Kognifai Platform. If changes in the Customer Data or Customer's systems require changes in the Services delivered by KDI, the Customer shall cover any reasonable costs incurred by KDI according to KDI's current price list.
7.5. KDI Content
The Kognifai Platform and Kognifai Services may use data provided by KDI or its Affiliates ("KDI Content"). KDI retains all right, title and interest in the KDI Content and all Intellectual Property Rights therein and the Customer's use of KDI Content which is made available shall cease upon termination of the Subscription Agreement.
7.6. Copyright Policy
KDI or relevant Third Parties hold necessary rights to all information, materials and Services available on the Kognifai Platform unless otherwise stated or following from the context.
The Kognifai Platform is subject to KDI 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 Services at any time if any Authorised User repeatedly infringes Third Party copyright rights, upon KDI's receipt of notification by the copyright owner or the copyright owner's legal agent. Without limiting the foregoing, if Customer believes that a copyrighted work has been copied and posted via the Services in a way that constitutes copyright infringement, Customer shall provide KDI with the following information: (a) an electronic or physical signature of the person authorised to act on behalf of the owner of the copyrighted work; (b) an identification and location in connection with the Services of the copyrighted work that Customer claims has been infringed; (c) a written statement by Customer that Customer has a good faith belief that the disputed use is not authorised by the owner, its agent, or the law; (d) the name and contact information, such as telephone number or email address, of Customer; and (e) a statement by Customer that the above information in Customer's notice is accurate and, under penalty of perjury, that Customer is the copyright owner or authorised to act on the copyright owner's behalf. Such notice of claims of copyright infringement shall be promptly sent to .
8. FEES, EXPENSES AND PAYMENTS
Customer’s use, and access rights, to the Kognifai Platform shall be subject to due payment of the relevant fees as contained within the relevant Partner Agreement or 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 the Services to Customer until the fees are paid in full.
KDI may, at its expense, audit the Customer's use of the KDI Content, as well as verify the payment information. Any such audit shall be conducted during regular business hours at Customer's facilities and shall not unreasonably interfere with Customer's business activities.
9. WARRANTIES AND LIABILITY
9.1. KDI Warranty
KDI and its suppliers make no representations about the suitability of the 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 gives no warranty or representation that the Kognifai Platform and 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; (b) KDI will not and does not purport to provide any commercial, legal, taxation or accountancy advice etc. in relation to the Services; and (c) KDI has no warranty obligation for problems on the Kognifai Platform and Services caused by third party software or hardware, by accidental damage or by other matters beyond KDI's control. KDI and its suppliers hereby disclaim all warranties and conditions with regard to 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 Kognifai could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein.
KDI has no responsibility with respect to any electronic communications services and/or computer network hardware used by Customer or any Authorised User to access the Kognifai Platform and Services.
KDI is using services and/or infrastructure provided by third parties (e.g. Microsoft Azure) for the provisioning of Kognifai Platform. Customer acknowledges and agrees that KDI does not undertake any separate responsibility for such third party services or infrastructure. KDI is not obliged to, but may pursue any claims in the event of a contractual breach of the relevant third party's own terms and conditions towards KDI, and Customer will be entitled to a proportionate part of any compensation from the third party reflecting the Customers documented direct loss attributable to any breach by such third party.
9.2. Third Party Applications and Content
The Kognifai Platform contains offers, hypertext links, pointers to information, applications, products and services created and maintained by Third Parties. Third Party Content will be offered and made available to Customer on the Kognifai Platform. The relevant Third Party is solely responsible for the Third Party Applications and related content on the Kognifai Platform, and KDI shall have no obligation or liability arising from such content provided by a Third Party. The views and opinions of authors expressed on the Kognifai Platform do not necessarily state or reflect those of KDI, and shall not be used for advertising or product endorsement purposes.
9.3. Customer Warranty
Customer warrants and represents at all times that Customer (i) has the right and authority to enter into this Agreement, 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 Services shall not (a) infringe any Third Party 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 or other Third Parties system or data; (e) otherwise cause damage to a Third Party; or (f) contain any personally identifiable health information of any individual.
Customer agrees that any use of the Services contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorised and improper use of the Services.
The Customer must indemnify and hold harmless KDI, its affiliates, directors, and employees from any damages finally awarded against KDI (including, without limitations, reasonable costs and legal fees incurred by Customer) arising out of any Third Party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the Customer Data, including, without limitations, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to Customer Data or for any breach of the Customer's warranties in clause 9.3).
Customer will defend at its expense any suit brought against KDI, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Customer's breach or alleged breach of clause 9.3.
9.5. Limitation of liability
To the extent permitted by law, KDI shall in no event be liable for any special, indirect, or consequential damages or any damages whatsoever resulting from loss of use, data or profits, or Customer's use of the Kognifai Services, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of the Kognifai Services, any provision of or failure to provide the Services and related services provided by KDI, or any data, result or information made available from the Services.
The aggregate liability of KDI arising under this agreement will under any circumstance be limited to the total fees paid by Customer to KDI during the immediately preceding 12-month period.
10.1. Termination and Suspension
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 months, unless either Party gives the other written notice at least 90 days prior to the expiry of the current term stated in the Subscription Agreement.
10.2. Effect of Termination
All KDI Content and Confidential Information belonging to KDI shall be returned to KDI.
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:
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
10.4. Changes or amendments in contractual terms
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 third party in the event of a transfer of KDIs business related to Kognifai.
10.5. Law and legal venue
10.7. Freedom of Action
Nothing will restrict or limit KDI from performing any 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.
10.8. Force Majeure
10.9. Announcements, Publicity and Marketing