Terms of Service

1. INTRODUCTION

1. These  Terms of Service (“Terms”) should be read in conjunction with Cognition’s Privacy Policy, Security Statement & GDPR page. 
2. Cognition  has created and developed the System and is the supplier of and has expertise in providing the Services.
3. 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.
4. 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.
5. 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 the 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:

1. “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;
2. “Active  Employee” means any employee added to the System by the Customer who has not been terminated by the end of the Billing Cycle;
3. “Agreement” means the agreement recorded herein, and includes all the Schedules, as amended from time to time in terms of clause 18.4;
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;
5. “Business  Day” means any day other than a Saturday, Sunday or national public holiday in Ireland;
6. “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;
7. “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;
8. “Effective Surviving Provisions” means clauses 1 to 2, clause 9 and clauses 14 to 18;
9. “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;
10. “Intellectual  Property Rights” means a Party’s rights subsisting in the Intellectual  Property, whether statutory or at common law;
11. “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;
12. “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;
13. “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;
14. “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;
15. “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;
16. “Schedule” means a schedule attached to this Agreement;
17. “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;
18. “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;
19. “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;
20. “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;
21. “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;
22. “VAT” means value-added tax; 

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

1. 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;
2. 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;
3. a word or expression given a particular meaning includes cognate words or expressions;
4. 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;
5. 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);
6. 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 underthe 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 

1. 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.
2. 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.
3. 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.
4. 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 

1. Cognition  will supply the Services to Customers for the duration of the Trial  and/or Paid Subscription, as applicable.
2. Cognition  will provide customer support to the Customer, between the hours of 9 am and 5 pm on Business Days.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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
 

1. In  consideration for the Paid Subscription, and from the date on which the  Paid Subscription commences, Customers shall pay Subscription Fees.
2. Except  as otherwise specified or agreed to in writing by Cognition, Subscription   Fees paid are non-refundable.
3. 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.
4. 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.
5. The  limitations referred to in clause 6.4. will be communicated to the  Customer in writing at the time that the discount is offered.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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:

1. be  responsible for its compliance with this Agreement;
2. be  responsible for the compliance of 3rd Party Clients on  the Customer’s account with this Agreement;
3. 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;
4. be solely responsible for the protection of its Proprietary Information;
5. 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;

1. 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;
2. 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;
3. not withhold, set off or defer payment or be entitled to a reduction in any fee or sum for any reason whatsoever;
4. 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;
5. 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;
6. 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
7. 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

 

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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

 

1. 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.
2. Save  as is set out in this Agreement, Cognition does not grant the Customer  any rights in and to such Proprietary Information.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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

 

1. 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.
2. 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.
3. 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.
4. 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.
5. 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

 

1. 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.
2. 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.
3. 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.
4. 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
 

1. 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.
2. 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.
3. 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.
4. 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
 

1. 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.
2. Either  Party may immediately terminate this Agreement upon written notice to the       other Party if:
   1. the        other Party becomes the subject of a petition in a bankruptcy or other        proceeding relating to insolvency, or makes an assignment for the        benefit of creditors;
   2. the        other Party is acquired by or becomes the terminating Party’s        competitor;
   3. the        other Party breaches its confidentiality obligations under this        Agreement or infringes or misappropriates the terminating Party’s        Intellectual Property Rights and/or Proprietary Information;
   4. it        determines, based on one or more written complaints, that the other        Party’s actions or statements create a significant risk of harm to the        terminating Party’s reputation, goodwill or business relationships;
   5. the        other Party has committed fraud or misrepresentation with respect to the        entering into and/or the performance of this Agreement;
   6. 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
   7. 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.
3. 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.
4. 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.
5. Termination       of this Agreement for cause shall be in addition to, and not in lieu of       either Party’s other legal rights or remedies.
6. 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.
7. 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
 

1. 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.
2. 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 

1. 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.
2. 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

 

1. 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.
2. 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.
3. 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.
4. 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.
5. 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).
6. 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
 

1. The  Customer shall not at any time during this Agreement, nor for a period of 1 (one) year 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
 

1. 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.
2. 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

1. 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.
2. 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.
3. 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.
   1. Variation,       Cancellation and Waiver
      1. No        amendment, variation, addition to or deletion from this Agreement by the        Customer shall be effective unless agreed to in writing by Cognition.
      2. 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.
   2. 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.

1. 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.

1. Applicable       Law

This Agreement is to be governed, interpreted and implemented in accordance with the laws of Ireland.

1. 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.

1. 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.