Terms of Service

1. INTRODUCTION

These Terms of Service (“Terms”) should be read in conjunction with our Privacy Policy, Security Statement & GDPR page.
Cognition Services Ltd ("Cognition") has created the System, is the supplier of and has expertise in providing the Services.
The Customer requires Cognition to grant it access to and use of the System and to provide the Services, which Cognition agrees to do, in accordance with the terms and conditions set out in this Agreement.
These Terms govern a Customer’s access to and use of the System (as defined below) as well as the provision of Services by Cognition.
These Terms will become binding as between Cognition and respective Customers on the Commencement Date, at which point an agreement will come into existence between Cognition and a respective Customer, on the terms and conditions set out herein, and shall continue in force, for the duration of a Trial and the Paid Subscription, until this Agreement is terminated in accordance with clause 13 below.

2. DEFINITIONS AND INTERPRETATION

1. In this Agreement, the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings, and other words derived from the same origins as such words (that is, cognate words) shall bear corresponding meanings:

“3rd Party Client” means any supplier of a Customer to whom the Customer provides data using the System and with whom Cognition has no contractual or other relationship by virtue of them not being a party to the Agreement;
“Active Employee” means any employee employed by the supplier;
“Agreement” means the agreement recorded herein, and includes all the Schedules, as amended from time to time in terms of clause 18.4;
“Billing Cycle” means the monthly, alternatively annual, cycle, as applicable, on which a Customer’s invoices are calculated and Subscription Fees are due, beginning on the Commencement Date;
“Business Day” means any day other than a Saturday, Sunday or national public holiday in Ireland;
“Commencement Date” means the date, on which the Customer signs up for a Trial in order to access and make use of the System and the Services, alternatively the date on which the Customer signs up for the Paid Subscription should the Customer not complete a Trial immediately prior to signing up for a Paid Subscription;
“Customer” means any person who has signed up with Cognition to access and make use of the System and the Services to Populate Sustainability Data, whether under the Trial or a Paid Subscription;
“Effective Surviving Provisions” means clauses 1 to 2, clause 9 and clauses 14 to 18;
“Intellectual Property” means intellectual property of all kinds and descriptions, including all proprietary information, all copyrighted works, trademarks (whether registered or not), designs (whether registered or not), inventions (whether patented or not), patents, software programs, code, forms, text procedures, models, methodologies, data and flow charts, logos, trade names, style names, slogans, Know-How, trade and/or business secrets, and any other intellectual property used or held, present or future, in regard to the respective Party’s business; including all statutory registrations, applications therefore and/or rights to obtain or use the aforesaid, together with all improvements, developments and customisations of the aforegoing;
“Intellectual Property Rights” means a Party’s rights subsisting in the Intellectual Property, whether statutory or at common law;
“Know-How” means ideas, designs, diagrams, information, devices, documents, technical data, scientific data, secret and other processes and methods used in connection with Cognition’s business; all available information regarding marketing and promotion of Cognition’s products and services; and any modifications or improvements to any of the aforegoing;
“Paid Subscription” means access to and use of the System to Populate Sustainability Data for a Subscription Fee, as from the date of expiry of a Trial, alternatively from the date on which the Customer subscribes for a Paid Subscription should the Customer not first complete a Trial;
“Parties” means the parties to this Agreement, being Cognition and the Customer. “Party” shall mean either one of the Parties, as the context may indicate, and “We” or “Us” as used in the abridged terms denotes Cognition;
“Populate Sustainability Data” means performing any task on the System related to the creation, editing and ensuring the accuracy of sustainability data by site, business unit and /or jurisdiction;
“Proprietary Information” means any and all know-how, trade secrets and data/information of a proprietary, commercial and/or confidential nature, including data/information of a Party that the other Party should reasonably have known to be proprietary or confidential in nature;
“Schedule” means a schedule attached to this Agreement;
“Services” means the services to be provided by Cognition to the Customer in terms of this Agreement, consisting of, inter alia, provision of access to and use of the System to Populate Sustainability Data, and any support services required by the Customer in relation to the System;
“Cognition” means Cognition Services Ltd, with registration number 602862, a private company incorporated and registered in accordance with the laws of Ireland, with the following particulars: physical address: 619 North Circular Road, Dublin, D01 FT67 and email address: info@cognition.world;
“Subscription Fee/s” means the fees payable by the Customer to Cognition as indicated on invoices transmitted by Cognition to the Customer from time to time, in consideration for the Paid Subscription;
“System” means the Cognition World online, data analytics platform created and developed by or under the control of Cognition exclusively, or by or under the control of Cognition in conjunction with a third party, inclusive of all modifications, enhancements, updates and additions thereto;
“Trial” means access to and use of the System to aggregate, visualise or Populate Sustainability Data, at no charge, for the first thirty (30) calendar days from the date on which the Customer signs up for a Trial;
“VAT” means value-added tax;

2. Unless expressly provided to the contrary or inconsistent with the context, a reference in this Agreement to:

a statutory provision includes any subordinate legislation made from time to time under that provision, and a reference to a statutory provision includes that provision as from time to time modified or re-enacted as far as such modification or re-enactment applies, or is capable of applying, to this Agreement or any transaction entered into in accordance with this Agreement;
words importing any particular gender include the other genders (i.e. the masculine, feminine and neuter genders, as the case may be); the singular includes the plural and vice versa; and natural persons include artificial persons and vice versa;
a word or expression given a particular meaning includes cognate words or expressions;
any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day is a day that is not Business Day, the next Business Day;
a person includes any natural person, firm, company, corporation, body corporate, juristic person, unincorporated association, government, state or agency of a state or any association, trust, partnership, syndicate, consortium, joint venture, charity or other entity (whether or not having separate legal personality);
any amount shall mean that amount inclusive of VAT, unless the amount expressly excludes VAT.

3 - Where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next succeeding Business Day. Where the day upon or by which any act is required to be performed is not a Business Day, the Parties shall be deemed to have intended such act to be performed upon or by the next succeeding Business Day.

4. Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability, and shall be treated as having not been written (i.e. pro non scripto) and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

5. The use of any expression covering a process available under Irish law (including, for example, a winding-up) shall, if any of the Parties are subject to the law of any other jurisdiction, be interpreted in relation to that Party as including any equivalent or analogous proceeding under the law of such other jurisdiction.

6. The rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (i.e. the eiusdem generis rule) shall not apply, and whenever the word “including” is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.

7. If a definition imposes substantive rights and obligations on a Party, such rights and obligations shall be given effect to and shall be enforceable, notwithstanding that they are contained in a definition.

8. A term defined in a particular clause, Schedule, or Schedule in this Agreement, unless it is clear from the clause, Schedule or Schedule in question that application of the term is to be limited to the relevant clause, Schedule, or Schedule, bears the meaning ascribed to it for all purposes of this Agreement, notwithstanding that that term has not been defined in clause 2.1 and, where there is any inconsistency between any term defined in clause 2.1 and any term defined in any clause, Schedule, or Schedule in this Agreement, then, for the purposes of construing such clause, Schedule, or Schedule, the term as defined in such clause, Schedule, or Schedule prevails.

9. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement which are expressly provided to operate after any such expiration or termination, or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the relevant provisions themselves do not provide for this.

3. DURATION

This Agreement shall commence on the Commencement Date and shall continue in force for the duration of the Trial and/or Paid Subscription, as applicable, until such time as it is terminated by either Party in accordance with clause 13.

4. RIGHT OF USE

The Customer and 3rd Party Clients are obligated to access and use the System and the Services, and any content accessed by or provided therein, in accordance with all applicable laws, rules and regulations and hereby accepts Cognition’s Privacy Policy. Cognition reserves the right to make changes to its policies and the System at any time.
Given that the System is to be accessed remotely, the Customer acknowledges and agrees that:
1. it is responsible for the medium through which it accesses and uses the System, whether via the internet and/or any other dedicated connection;
2. it is responsible for ensuring that it possesses or will possess, and for maintaining any and all software, hardware, communications equipment and network infrastructures required to gain access to and use the System;
3. it is responsible for any and all costs associated with accessing and using the System; and
4. it shall, at all times and for the duration of this Agreement, comply with any laws and/or regulations relating to its access and/or use of the System and Services.
Customers will require a password and/or other security measures, as per clause 4.4 below, to log in to, access and maintain the security of the System and Services. A Customer shall have sole responsibility for all activities relating to such Customer’s and its employees’ accounts and shall immediately inform Cognition of any unauthorised use of the Customer’s account.
Cognition undertakes to make available the following services to aid Customers in keeping information shared on the System confidential:
1. password protection for access to Customers’ and their employees’ accounts;
2. two-factor authentication to verify the identity of the Customer;
3. access control of administrative functions on the System;
4. Secure Socket Layer (SSL) encryption for communication of information between Cognition and the Customer; and
5. pseudonymisation of personally identifiable information after the purpose for which it was provided is no longer active.

5. PROVISION OF SERVICES

Cognition will supply the Services to Customers for the duration of the Trial and/or Paid Subscription, as applicable.
Cognition will provide customer support to the Customer, between the hours of 9 am and 5 pm on Business Days.
Notwithstanding clause 6.4., the System and the Services shall be available to Customers only, and only Customers may access and make use of the System and the Services.
Cognition will at all times use reasonable endeavours to ensure that access to and use of the System and the Services are continuous insofar as is practical. In this regard, however, the Customer acknowledges and accepts that Cognition cannot and does not guarantee that access to the System will remain uninterrupted at all times.
Cognition shall provide the Customer with reasonable notice of any scheduled maintenance that may interrupt access to the System, and shall, insofar as is practical, schedule such maintenance at times which are most convenient for the Customer.
In the event of any Services being interrupted during a critical period as alleged by a Customer, Cognition shall, upon written request by the Customer, use all reasonable endeavours to make alternative facilities available to the Customer to the extent reasonably possible. The Customer shall be liable for any and all costs and/or expenses incurred by Cognition in so doing.
Cognition shall not be obligated and/or liable to perform in accordance with the provisions of this Agreement, and shall, in addition, not be liable for any loss (including but not limited to loss of data, profits and goodwill), liability, damages (whether direct, indirect or consequential) or expense of whatsoever nature and howsoever arising, where Cognition’s failure, delay or inability to perform its obligations in terms of this Agreement is due to:
1. the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement;
2. the Customer’s failure, whether intentionally or negligently, to submit and/or upload accurate documents and/or information to the System;
3. the Customer’s failure to confirm the accuracy and integrity of any data or information processed for and on behalf of it by Cognition;
4. circumstances beyond Cognition’s reasonable control and/or events that constitute an event of force majeure in terms of clause 12;
5. telecommunications and/or network infrastructure, and/or communication line faults;
6. power failures and/or power interruptions;
7. failure or unreasonable delay by the Customer to report faults, problems or defects in the quality of the System to Cognition;
8. the Customer making changes to its information technology system, network infrastructure, software, hardware, or environment or any portion thereof;
9. the failure of any hardware, software program, applications/s or any other computer systems (or any component thereof) of any third party on whom the Customer relies (whether directly or indirectly) to access and utilise the System and/or the Service, and/or on which Cognition relies to provide access to the System or to provide the Services;
10. loss or damage caused directly or indirectly by the negligent and/or incorrect use of the System by the Customer; and/or
11. the suspension of access to and use of the System and the Services for maintenance, repair and improvements; this is provided that, where possible, Cognition shall provide the Customer with reasonable notice of any such suspension.

6. CONSIDERATION, PAYMENT AND INVOICING

In consideration for the Paid Subscription, and from the date on which the Paid Subscription commences, Customers shall pay Subscription Fees.
Except as otherwise specified or agreed to in writing by Cognition, Subscription Fees paid are non-refundable.
Subscription Fees are payable to Cognition in advance, on a monthly basis (“Monthly Billing Cycle”) or on an annual basis (“Annual Billing Cycle”), beginning on the date on which a Customer subscribes for a Paid Subscription.
1. Monthly Billing Cycle: Should a Customer subscribe to Cognition’s Monthly Billing Cycle, its Subscription Fees are calculated monthly. These monthly Subscription Fees are calculated based on the companies loaded onto the Customer’s profile on the last day of the previous Monthly Billing Cycle. The charge for each company loaded onto the Customer’s profile will be calculated based on the number of Active Employees in each company on the last day of the previous Monthly Billing Cycle.
2. Annual Billing Cycle: Should a Customer subscribe to Cognition’s Annual Billing Cycle, its Subscription Fees are calculated annually. These Subscription Fees are calculated based on the companies loaded onto the Customer’s profile on the first day of each consecutive Annual Billing Cycle. The charge for each company loaded onto the Customer’s profile will be calculated based on the number of Active Employees within each company on the first day of each consecutive Annual Billing Cycle. Should the number of Active Employees increase during the particular Annual Billing Cycle, Cognition will transmit an additional invoice to the Customer setting out the additional fees payable for the remainder of the particular Annual Billing Cycle.
Cognition retains the discretion to offer a Customer a discount on its Subscription Fees subject to certain limitations including, but not limited to:
1. 3rd Party Clients not being permitted to process their own data on the Customer’s profile; and
2. 3rd Party Clients having restricted access to the system.
The limitations referred to in clause 6.4. will be communicated to the Customer in writing at the time that the discount is offered.
Where a Customer that is offered a discount on its Subscription Fees breaches the limitations referred to in clause 6.4, Cognition reserves the right to cancel the discount and revert to calculation of the Subscription Fees as set out in clauses 6.3.1 and 6.3.2.
Subscription Fees shall escalate annually, on 1 January, at the discretion of Cognition. A Customer will be given 1 (one) month’s written notice of the respective escalation transmitted to the email address provided by the Customer to Cognition.
Notwithstanding the aforementioned, Cognition reserves the right to escalate Subscription Fees at any time upon 1 (one) month’s written notice to the Customer at the email address provided by the Customer to Cognition.
Cognition shall, for the duration of this Agreement, furnish the Customer with electronic invoices setting out:
1. the Subscription Fee due by the Customer to Cognition on a monthly or annual basis, which amounts shall be invoiced by Cognition and payable by the Customer as set out in clause 6.12.2 below; and
2. any administration fees due by the Customer to Cognition resulting from manual processing of payments, which amounts shall be invoiced by Cognition and payable by the Customer as set out in clause 6.12.2 below.
Where a Customer requests that Cognition undertake ad hoc development work or advisory work in addition to the Services provided by Cognition in terms of this Agreement, and such work is for the benefit of the Customer, Cognition reserves the right to charge the Customer a reasonable fee, subject to prior consultation with, and agreement by, the Customer.
Where a Customer makes use of Cognition’s self-service document upload feature, Cognition reserves the right to charge the Customer a reasonable fee within its discretion for the electronic storage of its data depending on capacity and size of the data stored.
Unless otherwise clearly recorded in a Schedule and/or an invoice, all amounts stipulated as being payable by the Customer to Cognition in terms of this Agreement:
1. are inclusive of VAT; and
2. shall be payable by the Customer to Cognition within 30 (thirty) calendar days of receiving an invoice from Cognition, without deduction and/or set-off, unless otherwise agreed to in writing by the Parties.
The Customer shall remain liable for all amounts owed to Cognition, even where the amount charged is incurred in respect of a 3rd Party Client.
The Customer shall not, under any circumstances and for any reason whatsoever, be entitled to withhold payment of any amount due under this Agreement, unless otherwise agreed to in writing by the Parties.
Should a Customer fail to settle any invoice in accordance with clause 6.12.2, Cognition reserves the right to pursue collection efforts to collect outstanding balances and to suspend the Customer’s access to and use of the System and Services until such time as the outstanding balances are settled, regardless of whether the Parties have entered into an agreement for settlement of the arrears.
Cognition will give the Customer at least 7 (seven) calendar days’ prior written notice that the Customer’s account is overdue before suspending the Customer’s access to and use of the System and Services.
Should Cognition deem it necessary to pursue collection efforts to collect outstanding balances, the Customer will be responsible for all collection costs and associated legal fees.

7. CUSTOMERS’ OBLIGATIONS

The Customer acknowledges and agrees that it shall, for the duration of this Agreement:

be responsible for its compliance with this Agreement;
be responsible for the compliance of 3rd Party Clients on the Customer’s account with this Agreement;
be solely responsible for the accuracy, quality, integrity and legality of any data and/or information processed for and on behalf of it by Cognition, and for the means by which the Customer acquires data and/or information;
be solely responsible for the protection of its Proprietary Information;
not commit or attempt to commit any act or omission which directly or indirectly:
1. impedes, impairs or precludes Cognition from being able to grant access to the System and/or provide the Services in a reasonable and business-like manner;
2. constitutes an abuse of the System and/or the Services;
3. constitutes a malicious misuse of the System and/or the Services; or
4. is calculated to have any of the above-mentioned effects;

and in the event of the Customer committing any act or omission listed in clause 7.5, should Cognition incur expenses and/or losses to remedy the situation and/or as a result of the situation, Cognition reserves the right to recover from the Customer the expenses incurred and/or amount lost, or to take any other appropriate action it may deem necessary to remedy the situation;

not sell, resell, lease, use or otherwise deal with the System in any manner whatsoever other than in the manner and for the purpose set out in this Agreement, including not building a competitive system or copying any features, functions or graphics of the System or Services, and, without limitation to the aforegoing, any consideration which the Customer may receive whilst acting in breach of this obligation shall be forfeited to Cognition;
not allow any person other than its employees and/or other authorised parties access to the System and/or the Services, and use commercially reasonable efforts to prevent unauthorised access to or use of the System and Services, and notify Cognition promptly of any such unauthorised access or use;
not withhold, set off or defer payment or be entitled to a reduction in any fee or sum for any reason whatsoever;
not have any other right or remedy against Cognition, its agents or any other persons for whom it may be liable in law should Cognition:
1. interrupt access to the System and/or the Services for any reason whatsoever; or
2. refrain from providing the Services to the Customer for any reason whatsoever, including in the event that the Customer is in default of any of its obligations to Cognition under this Agreement;
keep in confidence Cognition’s Proprietary Information, and protect any and all of it from disclosure to third parties and restrict its use to that which is provided for in this Agreement, as further set out in clause 9;
not at any time use the System and/or the Services in contravention of any applicable policies and/or Irish law and, in this regard, the Customer acknowledges that Cognition has no obligation to assist the Customer in obtaining knowledge of and/or clarity about the applicable Irish law; and
not make any warranty or representation in respect of the System and/or the Services to any third party other than those authorised in writing by Cognition.

8. INTELLECTUAL PROPERTY

Neither Party shall acquire any rights, title or interest of any kind in any Intellectual Property owned by the other Party. All Intellectual Property owned by a Party and all modifications made by it to that Intellectual Property shall at all times remain that Party’s sole property.
All Intellectual Property Rights vested in any of the Cognition documentation or in any software and/or any other documentation and works (whether stored in physical or electronic form) furnished by Cognition to the Customer, and/or developed by or created by Cognition or any of its employees, agents, or sub-contractors in the course of or for the purpose of granting access to the System and/or providing the Services to the Customer (whether or not created by Cognition in connection with this Agreement), shall be the property of and vest solely and absolutely in Cognition on the date upon which the same is created.
The Customer shall not acquire any right, title or interest in Cognition’s name, service marks, trademarks or logos. In this regard, the Customer undertakes in favour of Cognition not to perform any act or omission which would injure the reputation or goodwill attaching to Cognition’s name and trademarks, or which would prejudice Cognition’s rights in and to such names, designs, copyrights and trademarks.
Unless expressly authorised in writing, neither Party shall have the right to use the other Party’s Intellectual Property in any manner, subject to the following:
1. Customers are only authorised to use Cognition’s logo once written authorisation has been received from Cognition.
2. Cognition is authorised to use a Customer’s logo and slogan and in accordance with the Customer’s Terms of Use for Branding, if applicable.
The Customer hereby cedes, assigns, transfers and makes over to Cognition any Intellectual Property Rights which it may come to acquire, through its use of the System and Cognition’s provision of the Services, in respect of any of the software, documents, works or the like.
The Parties’ obligations with respect to Intellectual Property shall continue in perpetuity notwithstanding termination of this Agreement howsoever caused.

9. SECURITY AND PROTECTION OF PROPRIETARY INFORMATION

Cognition will retain all proprietary rights in and to its Proprietary Information, including its System and other proprietary materials including but not limited to copyrights, trademarks, trade secrets, patents and confidential information.
Save as is set out in this Agreement, Cognition does not grant the Customer any rights in and to such Proprietary Information.
The Customer hereby acknowledges and agrees that the System and any connected Intellectual Property and Intellectual Property Rights are proprietary to Cognition and that, as such, the Customer shall not be entitled to:
1. copy, reproduce, publish, broadcast, translate, modify, adapt, decompile, disassemble or reverse-engineer the System, or anything of the sort, as the case may be, or any concepts, code, texts, methods and designs embedded in the System, or any part thereof;
2. merge or combine the whole or any part of the System with any other components, elements or software without the prior written consent of Cognition; or
3. sell, lend, hire, transfer or make available the use of any part of the System to any third party.
All printed and/or electronic materials provided to the Customer containing Proprietary Information will be marked with “Proprietary” or “Confidential”, or in a manner which gives notice of its proprietary nature. Proprietary Information shall not be copied, in whole or in part, except when essential for correcting, generating or modifying Proprietary Information for the Customer’s authorised use. Each such copy, including its storage media, will be marked with all notices which appear on the original.
The Customer acknowledges that the unauthorised disclosure, processing, or use of Cognition’s Proprietary Information may cause substantial economic loss, and/or any other irreparable loss, harm or damage to Cognition. The Customer hereby indemnifies Cognition against any direct loss, action, expense, claim, harm, or damage, suffered or sustained by Cognition from the unauthorised or unlawful disclosure, processing or use of Cognition’s Proprietary Information by the Customer or any other person.
The Customer shall ensure that its employees comply with its obligations under this clause 9. This clause 9 shall survive termination or cancellation of this Agreement. Unless specifically otherwise agreed to in writing, this Agreement does not transfer to the Customer any rights contained in any Proprietary Information of Cognition.
Notwithstanding the provisions of clauses 9.4 to 9.6 above, the Parties agree to observe any additional security measures that may be required from time to time, which measures shall be agreed upon in writing by the Parties.
The Customer acknowledges and agrees that it shall at all times be solely responsible for the protection of its own Proprietary Information, and shall not hold Cognition liable for any breach in the protection of its Proprietary Information, and/or any resultant consequences therefrom, unless caused by Cognition’s gross negligence.
Cognition shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer’s data processed on the System, in accordance with Cognition’s Privacy Policy referred to in clause 1.1 above.

10. WARRANTIES

The Customer warrants and represents that the supply of the System and/or the rendering of the Services by Cognition in terms of this Agreement shall not give rise to:
1. a breach of any licensing arrangement or agreement concerning the Customer’s computer systems, including, without limitation, the Customer’s software; or
2. an infringement of any copyright or similar right held by any licensor(s) of any of the Customer’s computer systems and, in particular, the Customer’s software.
The Customer warrants and represents further that it has validly entered into this Agreement and has the legal power and capacity to do so. If the Customer is entering into this Agreement on behalf of a company or other legal entity, the Customer represents that:
1. the Customer has the authority to bind such entity and its affiliates to these Terms, in which case the terms “the Customer” or “the Customer’s” shall refer to such entity and its affiliates; and
2. such entity has the full power, corporate or otherwise, to enter into this Agreement and perform its obligations under this Agreement.
If, in Cognition’s opinion, the supply of the System and/or the rendering of any of the Services will constitute a breach of any license or the infringement of any copyright or similar right held by any person in respect of any of the Customer’s computer systems and/or computer software, Cognition shall not be obliged to supply to the Customer access to and use of the System and/or provide any such Services.
Cognition warrants and represents that:
1. it has full capacity and authority and all the necessary licenses, permits and consents to enter into and perform in terms of this Agreement and to provide access to the System and/or to provide the Services to the Customer;
2. it is the owner of or has the right to use under license the Intellectual Property Rights employed by it during or as part of providing access to the System and/or the provision of the Services;
3. it is not aware, as at the date hereof, of any matter within its reasonable control which might or will adversely affect its ability to perform its contractual obligations under this Agreement;
4. if any matter as aforementioned arises or becomes apparent, it will inform Customers by notification on its website, or other similar means, of the matter and likely duration thereof;
5. access to the System shall be granted and the Services shall be provided in accordance with the provisions of this Agreement and in compliance with Irish law;
6. the Services will be performed in a professional manner, and that it is and/or it shall use personnel that are appropriately experienced and suitably qualified, and that it and they possess sufficient knowledge, expertise and competence to perform the Services, in accordance with industry standards;
7. it is compliant with its obligations under GDPR, as detailed on the GDPR webpage linked at the top of this Agreement.
Save as expressly set out in clause 10.4 above, Cognition does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the System and/or the Services, and all warranties which are implied or residual at common law are hereby expressly excluded.

11. INDEMNITY AND LIABILITY

The Customer acknowledges that monetary damages may not be a sufficient remedy for its unauthorised or unlawful use or disclosure of Cognition’s Proprietary Information and agrees that Cognition may seek an interdict or other equitable relief from a court of competent jurisdiction, without waiving any of its other rights or remedies.
The Customer agrees to indemnify Cognition and hold it harmless in all circumstances against any loss, damage, costs, claims, proceedings, liabilities or expenses of any nature suffered or incurred by Cognition (and all costs incurred by it in connection therewith, including legal costs on an attorney and own-client scale) resulting from claims made against Cognition by any third party arising from:
1. the Customer’s breach of its obligations in terms of this Agreement and/or its negligent or intentional conduct in relation to its access to and use of the System, the Services and Cognition’s Proprietary Information;
2. the Customer’s failure to perform, or delay in performing its obligations in terms of this Agreement;
3. circumstances that constitute an event of force majeure as contemplated in clause 12 below;
4. all telecommunications infrastructure and communication line faults;
5. failure or unreasonable delay by the Customer to report faults/problems to Cognition;
6. the failure by the Customer to adequately confirm the accuracy and integrity of any data or information processed for and on behalf of it by Cognition;
7. the failure by the Customer to adequately protect its Proprietary Information; or
8. the failure of any hardware, software program, application/s or any other computer systems (or any component thereof) or product or service of any third party on which the Customer relies (whether directly or indirectly) to access the System and/or use the Services and/or on which Cognition relies to grant access to the System and/or provide the Services.
In no event shall Cognition be liable for any incidental, consequential, or any other indirect loss or damage (including but not limited to loss of profits or revenues and loss of data), nor for exemplary or punitive damages. These limitations of liability shall apply regardless of the form of action, whether in contract, delict or otherwise and regardless of whether the Customer has been advised as to the possibility of such damages and/or losses occurring.
Should any exclusion in clause 11.2 be found to be unenforceable at law, or any claim fall outside the scope of that clause, to the maximum extent permitted by applicable law, Cognition’s total aggregate liability arising out of or in connection with this Agreement shall be limited to the lesser of 50% of the Customer’s actual loss, or the proportion of the loss attributable to Cognition.

12. FORCE MAJEURE

An “event of force majeure” shall mean any event, occurrence or circumstance whatsoever which is not within the reasonable control of a party, including vis major, casus fortuitus, any act of God, strike, lock-out, theft, fire, explosion, riot, embargo, legislation, civil commotion, unrest or disturbance, cession of labour, government interference or control, insurrection or other civil disorder, war (whether declared or not) or military operation, international restriction, any requirement of any international authority, any requirement of any government or other competent local authority, any court order, export control and shortage of transport facilities, or any other cause or contingency beyond the control of that Party.
Should a Party (“Affected Party”) be prevented or restricted directly or indirectly from fulfilling any of its obligations in terms of this Agreement as a result of or by reason of an event of force majeure, then:
1. those obligations shall be deemed to have been suspended to the extent that, and for so long as, the Affected Party is so prevented from fulfilling them, and the corresponding obligations of the other Party (“Unaffected Party”) shall be suspended to the corresponding extent;
2. the Affected Party shall promptly notify the Unaffected Party in writing of such event of force majeure, and such notice shall include an estimation of the approximate period for which the suspension in terms of clause 12.2.1 will endure. Such estimate shall not be binding on the Affected Party; and
3. the duration of this Agreement as well as each period within which and each date by which any obligation is required to be performed in terms of this Agreement shall be extended or postponed, as the case may be, by the period of suspension in terms of clause 12.2.1.
Should the Affected Party partially or completely cease to be prevented from fulfilling its obligations by the event of force majeure, the Affected Party shall immediately give written notice to the Unaffected Party of such cessation, and the Affected Party shall, as soon as possible, fulfil its obligations which were previously suspended; this is provided that, in the event and to the extent that fulfilment is no longer possible or the other Party has given written notice that it no longer requires such fulfilment, the Affected Party shall not be obliged to fulfil its suspended obligations, and the Unaffected Party shall not be obliged to fulfil its corresponding obligations.
Should an event of force majeure continue for more than 180 (one hundred and eighty) calendar days after the date of the notice referred to in clause 12.2.2, and notice of cessation in terms of clause 12.3 not have been given, then the Unaffected Party shall be entitled (but not obliged) to terminate this Agreement by giving not less than 30 (thirty) calendar days’ written notice to the Affected Party to that effect, provided that any such notice of termination shall be deemed not to have been given if a notice of cessation in terms of clause 12.3 is received by the Unaffected Party prior to the expiry of such 30 (thirty) calendar day period.

13. BREACH AND TERMINATION

Upon expiration of a Trial, the System shall notify the respective Customer of the expiration and shall provide the Customer with the option to subscribe for a Paid Subscription. Should the Customer elect not to subscribe for a Paid Subscription, the Customer’s access to and use of the System shall be revoked, and this Agreement shall no longer be of any force or effect.
Either Party may immediately terminate this Agreement upon written notice to the other Party if: a) the other Party becomes insolvent; b) is acquired by or becomes the terminating Party’s competitor; c) breaches its confidentiality obligations under this Agreement or infringes or misappropriates the terminating Party’s Intellectual Property Rights and/or Proprietary Information; d) if the other Party has committed fraud or misrepresentation with respect to the entering into and/or the performance of this Agreement; e) it learns of circumstances that give it reason to believe that the other Party has engaged in illegal conduct or unethical business practices in connection with the performance of this Agreement; or f) if the other Party, or any of its owners or employees who make use of the System or who are responsible for providing services under this Agreement have become the target of an investigation or prosecution by any governmental authority for alleged corruption.
Either Party may terminate this Agreement for convenience upon 30 (thirty) calendar days’ written notice to the other Party, provided that:
1. Cognition may not terminate for convenience with respect to a term for which the Customer has already paid any applicable Subscription Fee; and
2. the Customer may not terminate for convenience for so long as it has outstanding fees of any kind owing to Cognition.
Should either Party (“Defaulting Party”) commit a breach of any of the provisions of this Agreement, then the other Party (“Aggrieved Party”) shall be obliged to give the Defaulting Party 14 (fourteen) calendar days’ written notice to remedy the breach. If the Defaulting Party fails to comply with such notice, the Aggrieved Party shall be entitled, without prejudice to its other rights in law, to terminate this Agreement in writing or to claim immediate specific performance of all of the Defaulting Party’s obligations whether or not due for performance, in either event without prejudice to the Aggrieved Party’s right to claim damages.
Termination of this Agreement for cause shall be in addition to, and not in lieu of either Party’s other legal rights or remedies.
Notwithstanding any other provision of this Agreement, on termination of this Agreement for any reason whatsoever, and in any event, on demand by Cognition, any amounts due to Cognition shall immediately become payable to Cognition, and the Customer shall forthwith make payment of the same to Cognition by no later than 14 (fourteen) calendar days from the date of termination of this Agreement.
Upon termination, for any reason whatsoever, the Customer will have access to its data for a period of 3 (three) months from the date of termination. After such 3 (three)-month period, Cognition shall have no obligation to maintain or provide any of the Customer’s data and shall thereafter, unless legally prohibited, delete all of the Customer’s data in its System or otherwise in its possession or under its control.

14 DISPUTE RESOLUTION

This clause is a separate, divisible agreement from the rest of this Agreement and shall:
1. not be or become void, voidable or unenforceable by reason of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the Agreement and not to this clause. The Parties intend that any such issue shall at all times be and remain subject to this clause; and
2. remain in effect even if the Agreement terminates or is cancelled.
Save for any disputes relating to payment of Subscription Fees or any other fees in terms of this Agreement, any other dispute arising out of or in connection with this Agreement or the subject matter of this Agreement, including without limitation, any dispute concerning:
1. the existence of the Agreement apart from this clause;
2. the interpretation and effect of the Agreement;
3. the Parties’ respective rights or obligations under the Agreement;
4. the rectification of the Agreement;
5. the breach, termination or cancellation of the Agreement or any matter arising out of the breach, termination or cancellation; or
6. damages arising in delict, compensation for unjust enrichment or any other claim, whether or not the rest of the Agreement apart from this clause is valid and enforceable, shall be referred to negotiation as set out in clause 14.3 below.

3. Negotiation

One Party shall invite the other Party in writing to meet and to attempt to resolve the dispute within 14 (fourteen) calendar days from the date of the written invitation.
If the parties are unable to resolve any dispute by way of negotiation as aforementioned, then the dispute shall be submitted to and decided by way of litigation in a court of competent jurisdiction.

15 ADDRESS AND NOTICES

Cognition chooses as its domicilium citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the physical address reflected in the definition of that Party in 2.1.
Each Customer chooses as its address for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the address, whether physical or electronic, notified to Cognition from time to time, alternatively its registered and/or principal place of business address.
Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, but it shall be competent to give notice by email.
Any of the Parties hereto may by notice to the other Parties change the address to another address where postal delivery occurs in Ireland or its email address, provided that the change shall become effective on the 7th (seventh) calendar day from the deemed receipt of the notice by the other Parties.
Any notice to a Party:
1. delivered by hand to a responsible person during ordinary business hours at the physical address chosen shall be deemed to have been received on the day of delivery; or
2. sent by email to its chosen email address, shall be deemed to have been received on the date of transmission (unless the contrary is proved).
Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen address.

16. NON-SOLICITATION

The Customer shall not at any time during this Agreement, nor for a period of 2 (two) years after termination of this Agreement, for any reason whatsoever, either for itself or as the agent of anyone else, persuade, induce, solicit, encourage or procure any employee, agent, sub-contractor or authorised representative of Cognition, without written consent from Cognition, to:
1. become employed by or interested in any manner whatsoever in any business, firm, undertaking or company, directly or indirectly in competition with the business carried on by Cognition; or
2. terminate his/her employment with Cognition.

17. ASSURANCE THAT THE AGREEMENT IS BINDING

The Parties warrant to each other that they have taken or caused to be taken all steps, actions and/or corporate proceedings necessary to cause this Agreement to be binding on themselves.
Each of the Parties shall, if requested by any of the other of them, furnish to the latter sufficient evidence of the authority of the person or persons who shall, on behalf of the Party so requested, take any action or execute any documents required or permitted to be taken or executed by such person under this Agreement.

18. MISCELLANEOUS MATTERS

Entire Contract: This Agreement contains all the provisions agreed on by the Parties with regard to the subject matter of the Agreement, and supersedes and novates in its entirety any previous understandings or agreements among the Parties in respect thereof; and the Parties waive the right to rely on any alleged provision not expressly contained in this Agreement.
No Stipulation for the Benefit of a Third Person: Save as is expressly provided for in this Agreement, no provision of this Agreement constitutes a stipulation for the benefit of a third person (i.e. a stipulatio alteri) which, if accepted by the person, would bind any Party in favour of that person.
No Representations: To the extent permissible by law, no Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
Variation, Cancellation and Waiver: No amendment, variation, addition to or deletion from this Agreement by the Customer shall be effective unless agreed to in writing by Cognition. Any amendment, variation, addition to or deletion from this Agreement by Cognition will be notified to the Customer in writing by email in accordance with clause 15. Notwithstanding clause 13, the Customer will have the option to terminate this Agreement within 7 (seven) calendar days of the date of receipt of notification. Should the Customer not terminate the Agreement as set out in this clause 18.4.2, the Customer will be deemed to have accepted and/or consented to the respective amendment, variation addition to or deletion from this Agreement by Cognition.
Indulgences: The grant of any indulgence by a Party under this Agreement shall not constitute a waiver of any right by the grantor or prevent or adversely affect the exercise by the grantor of any existing or future right of the grantor, unless reduced to writing and signed by both Parties.
Cessation and Delegation: The Customer shall not cede, assign or transfer any or all of its rights, or delegate any or all of its obligations under this Agreement without the prior written consent of Cognition, which consent shall not be unreasonably withheld.
Applicable Law: This Agreement is to be governed, interpreted and implemented in accordance with the laws of Ireland.
Jurisdiction of Irish Courts: The Parties consent to the non-exclusive jurisdiction of the Irish Courts for any proceedings arising out of or in connection with this Agreement.
Severability: If any provision hereof is held to be illegal, invalid or unenforceable for any reason, such provision shall be deemed to be pro non scripto, but without affecting, impairing or invalidating any of the remaining provisions of this Agreement, which shall continue to be of full force and effect.

Terms of Service

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