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.