Cognota, Inc. (the “Vendor”),
199 Bay Street #4000, Toronto, Ontario, Canada M5L 1A9
We have updated the Agreement as of March 4, 2024.
THE AGREEMENT IS A LEGALLY BINDING CONTRACT THAT GOVERNS ACCESS TO USE THE SUBSCRIPTION SERVICES, WHETHER PAID OR AS A FREE TRIAL.
Recitals
WHEREAS, the Vendor offers cloud-based software subscription services detailed at www.cognota.com (the “Subscription Service“);
WHEREAS, the Parties desire that the Vendor make the Subscription Services available to the Customer as described on an order form (hereinafter referred to as the “Order Form”), which, together with the Terms, constitutes the “Agreement.” Deliverables (as defined in the Order Form) shall be deemed accepted by the Customer in accordance with the terms of an applicable Order Form. Any reference to “You” or “Your” herein refers to the Customer or Customer Affiliate as further defined in the Agreement. The Customer and the Vendor may be referred to individually as “Party” or collectively as “Parties.”
THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
The Agreement dictates the terms for all entities, including individuals, firms, and corporations (the “Customer“), who use or intend to use the Subscription Service. Parties without the requisite authority or who do not consent to this Agreement are not permitted to access the Subscription Service. In the event of discrepancies, the Order Form’s terms shall supersede those within this Agreement.
General Terms and Conditions
Table of Contents:
1. Subscription Services and Term
1.1. Service
1.2. Support
1.3. Pass-Thru Rights to Affiliates
1.4. Subscription Service Level
1.5. Subscription Term
2. Use of the Subscription Services
2.1. Login Management
2.2. Compliance
2.3. Usage Restrictions
2.4. System Requirements
2.5. Professional Services
2.6 Third-Party Components
3. Intellectual Property Rights
3.1. Subscription Service and Software Rights
3.2. Customer Data Rights
3.3. Aggregated Information Rights
3.4. Third-Party Rights
3.5. Use of Marks
4. Confidential Information
5. Subprocessors and Security of Customer Data
5.1. Subprocessors
5.2. Third-Part Service Providers
5.3. Security Incident Protocol
5.4. Customer Information
5.5. Temporary Suspension
5.6. Compliance with Data Privacy Standards
5.7. Warranties
6. Fees, Billing, Modifications, and Payments
6.1. Fees and Payment
6.2. Upgrades
6.3. Downgrades
6.4. Price Increases
6.5. Billing Information
6.6. Delinquent Payment and Penalties
6.7. Taxes
6.8. Tax Withholding
7. Agreement Termination
7.1. Termination for Cause
7.2. No Other Refunds
7.3. Export of Customer Data
8. Insurance
9. Indemnification
9.1. Indemnification by Vendor
9.2. Indemnification by Customer
10. Limitations of Liability
10.1. Exclusion of Damages
10.2. Limitation of Liability
10.3. Limitation of Liability in the Aggregate
10.4. Jurisdiction-Specific Exclusions
10.5. Enforceable Against the Vendor
11. Representations, Warranties, and Disclaimers
11.1. Representations and Warranties
11.2. Exclusion of Warranties
12. Assignment, Entire Agreement, and Amendment
12.1. Assignment
12.2. Entire Agreement
12.3. Amendment
13. Severability
14. Export Compliance
15. Relationship of the Parties
16. Notice
16.1. Notices to Customer
16.2. Notices to Vendor
16.3. Notice Timing
17. Force Majeure
18. Governing Law
19. Federal Government End Use Provisions
20. Ethical Conduct and Compliance
21. Survival
SECTION 1. SUBSCTIPTION SERVICES AND TERM
1.1 Service. All terms of the Agreement applicable to the Customer, excluding payment provisions, also apply to a free trial of the Subscription Services (the “Free Trial”). The Customer is limited to one (1) Free Trial account, used within the Vendor-designated Free Trial Period. The Vendor may modify, suspend, or terminate the Free Trial without notice, at its sole discretion, unless the Customer opts to purchase Subscription Services.
ANY CUSTOMER DATA THAT THE CUSTOMER ENTERS INTO THE FREE TRIAL WILL BE PERMANENTLY LOST UNLESS THE CUSTOMER PURCHASES A SUBSCRIPTION TO THE SUBSCRIPTION SERVICES OR EXPORTS SUCH CUSTOMER DATA BEFORE THE END OF THE FREE TRIAL PERIOD.
1.2 Support. The Vendor offers free chat support during regular business hours, Monday to Friday, excluding Canadian and U.S. federal public holidays and certain Vendor-specified holidays. Customers will be notified in advance, when feasible, of planned outages. Additionally, for Customer who purchase the Subscription Services, the Vendor provides upgraded support that includes service level agreements as displayed at https://bit.ly/3xNMFRb (the “Service Level Agreement“). In the case of service interruptions, the Vendor will use diligent efforts to restore access to the Subscription Service as promptly as possible and shall provide prompt support to the Customer in resolving any access issues. An escalation procedure will be communicated to the Customer detailing the steps for escalating service outages or significant degradation, ensuring effective and timely resolution.
1.3 Pass-Thru Rights to Affiliates. Wherever used in the Agreement, the Customer includes the Customer’s subsidiaries and affiliates (the “Customer Affiliate“), who have the option, not the duty, to purchase and/or access Subscription Services under this Agreement. These rights may be exercised directly or via an Order Form that references the Agreement.
1.4 Accessibility and Availability. The Vendor reserves the right to modify the features and functionality of the Subscription Services periodically. Such modifications include but are not limited to changes to the user interface, operability, data handling, security protocols, and customer support processes. The Vendor will make commercially reasonable efforts to ensure that any modifications do not materially degrade the existing functionality of the Subscription Services, aiming for a minimum of 99.5% uptime, not including scheduled or emergency maintenance periods by the Vendor or third-party providers, or disruptions beyond the Vendor’s reasonable control. The Vendor will provide the Customer with advance notice of any material changes to the Subscription Services with a description of the modifications and their expected impact on the use of the Subscription Services. Notices of product changes will be communicated via the Customer’s primary contact email or through notifications within the Subscription Services interface. The Customer acknowledges that the Subscription Services may evolve over time, and agrees that their continued use of the Subscription Services following a modification constitutes acceptance of the changes.
1.5 Subscription Term. The Order Form specifies the Initial Subscription Term for the Subscription Services. Unless terminated earlier per the Agreement, the Initial Subscription Term will auto-renew for subsequent periods equal to the expiring term as noted on the Order Form (each a “Renewal Term”). The Customer can terminate the Agreement by notifying the Vendor in writing at least thirty (30) days before the current term ends.
SECTION 2. USE OF THE SUBSCRIPTION SERVICES
2.1 Login Management. During the applicable Subscription Term, the Customer may have users who are each authorized to have a login account associated with the Subscription Service (“Authorized Users“). In that regard, the Vendor will host, maintain, update, and operate the Subscription Services for the Customer and its Authorized Users with no less than the functionality and specifications set out on the Order Form related to the applicable Subscription Services as of the Service Start Date. “Service Start Date” refers to the specific date indicated on the Order Form, which marks the commencement of the Subscription Services provided to the Customer.
2.2 Compliance. The Vendor grants the Customer a non-exclusive, global, non-transferable license to use the Subscription Services. The Customer must use the Subscription Services in compliance with (a) the terms of the Agreement and (b) all pertinent laws and regulations, including those governing data export. Authorized Users must not share credentials with unauthorized parties and are prohibited from sublicensing, leasing, or commercially exploiting the Subscription Services. However, the Customer can reassign licenses to new users replacing those who no longer need access to the Subscription Services.
2.3 Usage Restrictions. The Customer is restricted from duplicating, copying, or repurposing the Subscription Service and must not engage in reverse engineering, decompiling, disassembling, or analyzing the source code, object code, underlying structure, ideas, know-how, or algorithms of any software related to the Subscription Services (the “Software”) for any reason, including for any benchmarking or competitive purposes. Unauthorized benchmarking and derivative work creation are forbidden unless expressly permitted in writing by the Vendor or by applicable law. The Customer agrees to access the Subscription Service solely via the provided interface and avoid any actions that could disrupt the Subscription Service or infiltrate the system including, without limitation, using web crawlers or scripts or security testing tools or by otherwise sending, storing, publishing, posting, uploading, or transmitting any viruses, Trojan horses, worms, time bombs, corrupted files, or other computer programming routines that are intended to probe, scan, attempt to penetrate, damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, information, or property of the Vendor when using the Subscription Services.
2.4 System Requirements. A high-speed Internet connection is required for proper transmission of the Subscription Services. The Customer must maintain network connections and browser software that uphold protocols such as TLS, as approved by the Vendor. The Vendor is not liable for any data compromise during transmission over networks not within its control or for notifying of software updates. The Vendor disclaims responsibility for the network connection’s reliability or performance.
2.5 Professional Services. The Order Form may include options to purchase professional services like “LearnOps Academy” and/or “Coaching” from the Vendor or through Vendor partners. The Customer, upon purchasing these services, will always use their independent judgment when making decisions about the usefulness and suitability of any information received and the use of information provided during these sessions. Moreover, the Customer agrees to absolve the Vendor and its partners and associates (referred to collectively as “Releasees“) from and against any liabilities, losses, damages, or claims related to the professional services received.
2.6 Third-Party Components. If applicable, the Customer may integrate Third-Party Components with the Subscription Services and must abide by any accompanying license agreements in that regard. The Vendor disclaims any endorsement, responsibility for, or liability related to these components’ functionality or reliability. Consequently, the Customer will indemnify the Vendor against any claims resulting from their use and acknowledges that the Vendor is not responsible for their support or maintenance—such responsibilities fall to the Customer or third-party licensors.
SECTION 3. INTELLECTUAL PROPERTY RIGHTS
3.1 Subscription Service and Software Rights. The look, feel, and function of the Subscription Service are copyrighted. The Vendor, its licensors, and service providers own and retain all right, titles, and interests in the Subscription Services, and all rights related to intellectual property of the Software including, without limitation, any suggestions, recommendations, feedback, improvements, modifications, enhancements, and requests that are provided by the Customer and Authorized Users wherever in the world those rights exist. The Vendor also retains all rights not explicitly granted to the Customer under this Agreement.
3.2 Customer Data Rights. “Customer Data” is defined as all customer material, including content and reports, provided by the Customer and handled via the Subscription Services. The Customer holds exclusive ownership rights to this data, which is classified as Confidential Information within the scope of the Agreement.
3.3 Aggregated Information Rights. The Vendor has the right to collect statistical information from the use of the Subscription Services and make use of such anonymous aggregate information to improve the Software and its related Subscription Services, provided that such information does not incorporate any Customer Data or Confidential Information, and such information has been combined with data of other customers and stripped of any personal identifiers such that the information cannot be used to identify Customer or Authorized Users (the “Usage Data”). The Vendor retains all intellectual property rights in the Usage Data.
3.4 Third-Party Rights. In using the Subscription Services, the Customer agrees not to engage in unauthorized usage of any intellectual property by third parties without their consent. The Vendor prohibits copyright infringement on its Website, Subscription Services, and Software, and will remove content upon valid notification of such infringement without liability to the Customer.
3.5 Use of Marks. Prior written consent is required for any use of trademarks, logos, service marks, or company names associated with the Agreement (the “Marks“), including references in promotional materials.
SECTION 4. CONFIDENTIAL INFORMATION AND DATA BREACH NOTIFICATION
Each Party will safeguard the other’s Confidential Information against unauthorized use or disclosure with the same degree of care as its own, but no less than reasonable care. Use of Confidential Information is limited to fulfilling rights and obligations under the Agreement and may be disclosed only to personnel who need to know and are under confidentiality obligations, to comply with legal orders or regulations, or if it was publicly known before disclosure or becomes public through no fault of the receiving Party. Violations of confidentiality may result in injunctive or equitable relief due to the unique nature of the data. “Confidential Information” pertains to any shared information marked or deemed confidential, like pricing or business plans, but not to information previously known, acquired without confidentiality restrictions, publicly available without breach, or independently developed.
SECTION 5. SUBPROCESSORS AND SECURITY OF CUSTOMER DATA
5.1 Subprocessors. The Vendor utilizes Subprocessor(s) to assist in delivering the Subscription Services, as detailed at https://trust.cognota.com (the “Trust Center”). The Customer grants general authorization for the use of Subprocessor(s) listed there. The Vendor shall be accountable for the acts and omissions of its affiliates, including without limitation, respective officers, directors, employees and contractors (collectively, the “Vendor Personnel”) and for the actions of its Subprocessor(s) as if it were performing the services itself per the Agreement. The Vendor will update the Trust Center with new Subprocessor(s), and Customers should opt-in to Trust Center notifications to stay informed. “Subprocessor(s)” are third parties authorized by the Vendor to process Customer Data.
5.2 Third-Party Service Providers. The Vendor may engage third-party service providers to help deliver the Subscription Services to the Customer. These providers, who will not access Customer Data, and are bound by confidentiality terms akin to those in this Agreement. The Vendor remains accountable for the actions of its service providers as if the Vendor were directly performing their services under the Agreement.
5.3 Security Incident Protocols. The Vendor maintains robust safeguards to protect the security, integrity, and confidentiality of Customer Data. Upon detecting any actual breach of security of the Customer Data (each a “Security Incident”), the responsible Party shall notify the other within forty-eight (48) hours if legally allowed, detailing the incident’s nature, scope, and potential consequences. Both Parties will collaborate to mitigate effects, fulfill legal requirements, and coordinate pre-approved public communications, unless barred by law. The Vendor will investigate, formulate corrective action, and share findings with the Customer.
5.4 Customer Information. The Vendor, as the Data Controller, processes Authorized Users’ information according to the Vendor’s Privacy Policy. The Customer must inform Authorized Users about their rights under this policy and ensure all necessary consents and notices are in place to comply with applicable data protection laws for lawful processing by the Vendor. “Data Controller” refers to the entity that determines the purposes and means for processing personal data.
5.5 Temporary Suspension. The Vendor may limit or suspend the Subscription Service (or any part thereof) and manage Customer Data if there’s a reasonable belief of Customer or Authorized User agreement violations, or detection of malicious software associated with Customer Data or its use by the Customer or Authorized Users.
5.6 Compliance with Data Privacy Standards. The Vendor provides a Data Processing Addendum (DPA) in the Trust Center which complies with data privacy regulations such as GDPR and CCPA. The Customer, as Data Controller, and the Vendor, as Data Processor, agree to uphold all applicable data protection laws and maintain adequate consent for personal data processing. The Vendor will maintain security measures commensurate with processing risks and adapt to evolving legal standards. The Vendor commits to updating the DPA as necessary to ensure ongoing compliance.
5.7 Warranties. The Vendor guarantees that throughout the Subscription Term, the Agreement will correctly represent the relevant safeguards for protecting the security, confidentiality, and integrity of Customer Data. The warranties herein do not apply to any misuse or unauthorized modification of the Subscription Services made by Customer or Authorized Users.
SECTION 6. FEES, BILLING, MODIFICATIONS AND PAYMENTS
6.1 Fees and Payment. Unless otherwise expressly set forth in the Agreement, in the Order Form or as otherwise agreed, the service fees for the Subscription Services (the “Fees”) are due in full upon commencement of the Subscription Term and the Vendor shall bill the Customer through an invoice.
6.2 Upgrades. If the Customer chooses to add products or services that are not included on the Order Form during the Subscription Term, any incremental Fees associated with such upgrade will be charged in accordance with the remaining Subscription Term. Any subsequent Renewal Term will include the updated Fees for such upgrades.
6.3 Downgrades. The Customer may not reduce the number of Authorized Users or downgrade services described in an Order Form during a current Subscription Term. Reductions or downgrades are only permissible by providing the Vendor with thirty (30) days prior written notice before the end of the then-current Subscription Term. Until a new Order Form is signed, the Services will automatically renew without changes.
6.4 Price Increases. For each Renewal Term, the Fees will incur an automatic increase of 5% or an amount in line with The Consumer Price Index, whichever is greater. The combined Initial Subscription Term and any subsequent Renewal Terms constitute the “Subscription Term.“
6.5 Billing Information. The Customer must supply accurate and up-to-date account information in the Order Form, including a physical billing address and a billing contact email. It’s the Customer’s responsibility to promptly update any changes to this information.
6.6 Delinquent Payment and Penalties. The Vendor may impose late fees and interest on overdue invoices. If the Customer doesn’t pay Fees or other charges within thirty (30) days of notice, the Vendor may consider the payment delinquent, and may suspend the Subscription Services for the Customer and Authorized Users. Unpaid balances incur a finance charge of 1% per month or the maximum legal rate, plus all related expenses.
6.7 Taxes. All Fees are net of applicable taxes whether national, federal, state, provincial, territorial, withholding and/or VAT taxes and applicable customs duties or tariffs (collectively the “Taxes”). The Customer is responsible for paying all such Taxes. If the Vendor is legally obliged to pay or collect Taxes for the Customer, the Customer will be billed for those Taxes and agrees to pay or reimburse the Vendor, unless a valid tax exemption certificate is provided to the Vendor.
6.8 Tax Withholding. Should the Customer be legally mandated to withhold Taxes from payments to the Vendor, the amount paid should be the invoice total minus withholdings, which the Customer then pays directly to the tax authority. The Customer must give the Vendor a valid tax receipt within ninety (90) days of payment, or else the full invoice amount becomes due. If the Customer mistakenly pays the full invoice without withholding and later provides a valid tax receipt, the Vendor may reimburse the withheld Taxes within one year of the relevant invoice payment.
SECTION 7. AGREEMENT TERMINATION
7.1 Termination for Cause. Either Party may terminate the Agreement for cause: (i) with written notice of a material breach if the breaching Party fails to remedy it within thirty (30) days of notice, or (ii) if the other Party faces bankruptcy or insolvency proceedings. Immediate termination is also permitted if the Subscription Service contravenes laws, regulations, or court orders. Upon termination for cause, the Customer must immediately settle all amounts owed up to the last day of provided Subscription Services. Termination does not exempt the Customer from paying any Fees for the period prior to termination. Conversely, the Vendor must repay any Fees prepaid for the period after termination, such amount to be calculated as [(total Fees paid)/number of day in period for which such Fees were paid) multiplied by (remaining days in the period for which such Fees were paid)] (the “Prorated Amount”) and all other prepaid Fees covering the remainder of the term of the Agreement.
7.2 No Other Refunds. Transactions between the Vendor and the Customer are final. Payments made by the Customer for the Subscription Services are non-cancelable and non-refundable, except as explicitly agreed in writing.
7.3 Export of Customer Data. Following the termination or expiration of the Subscription Services, the Customer will have thirty (30) days to export their data at no extra cost (the “Data Retrieval Period“). After this period, the Vendor will destroy all Customer Data in its control, unless legally required to retain it, according to any data deletion and retention policies as set forth in the Trust Center.
SECTION 8. INSURANCE
During the term of the Agreement, the Vendor shall maintain adequate insurance coverage as required by law or regulation and at its own expense, with an insurance carrier or carriers having an A.M. Best rating of A- or better, or an equivalent rating by another rating agency in the following minimum amounts: (i) commercial general liability with $1,000,000 per occurrence; (ii) umbrella liability with $1,000,000 per occurrence and aggregate; and (iii) technology errors & omissions and cyber-risk liability covering $1,000,000 aggregate in connection with the Subscription Services provided as set forth at https://bit.ly/39MlEpu. The Vendor will provide the Customer with a Certificate of Insurance upon request and will notify the Customer of any policy cancellations or coverage changes.
SECTION 9. IDEMINIFICATION
9.1 Indemnification by Vendor. The Vendor will indemnify and defend the Customer against any third-party claims alleging the Subscription Service infringes on intellectual property rights (an “IP Claim”). At Vendor’s cost, it will handle the defense and any resulting damages, provided the Customer promptly informs the Vendor of the claim, allows Vendor to manage the defense and settlement, and cooperates with the process. If there’s an infringement issue, the Vendor may at its discretion and expense either secure usage rights, modify the Subscription Service, or refund the unused portion of the Subscription Term fees on a pro-rata basis if usage of the Subscription Service must end. The Vendor is not liable for claims arising from Customer-supplied specifications, unauthorized modifications, or combining the Subscription Service with other software or hardware. This section outlines the Vendor’s entire liability and the Customer’s exclusive remedy for IP claims related to the use of the Subscription Service.
9.2 Indemnification by Customer. The Customer will indemnify and hold the Vendor harmless from any third-party claims resulting from (i) the Customer’s unlawful use of the Subscription Service, or breach of the Agreement or Order Form; (ii) any claim that the Customer Data or Marks infringe upon intellectual property rights. This is contingent on the Vendor immediately notifying the Customer of such claim, the Customer having the authority to defend or settle the claim—provided it doesn’t admit Vendor’s liability without the Vendor’s prior written consent—and the Vendor fully cooperates with the Customer in connection therewith.
SECTION 10. LIMITATIONS OF LIABILITY
10.1 EXCLUSION OF DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) SHALL EITHER PARTY TO THE AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA THE CUSTOMER’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF THE VENDOR), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY INDIRECT LOSSES INCURRED IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF OR COULD FORESEE THE POSSIBILITY OF SUCH DAMAGES.
10.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING OF CONTRARY PROVISIONS IN THE AGREEMENT, THE VENDOR’S TOTAL LIABILITY TO THE CUSTOMER, AFFILIATES, OR ANY THIRD PARTY EMANATING FROM THE AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES THE CUSTOMER PAID IN THE TWELVE (12) MONTHS PRIOR TO THE INITIATING INCIDENT OF LIABILITY. THIS SECTION PURPOSEFULLY LIMITS LIABILITY TO REFLECT THE FEES CHARGED, WHICH WOULD BE SIGNIFICANTLY HIGHER IF THE VENDOR ASSUMED GREATER LIABILITY. THE VENDOR’S PROVISION OF SUBSCRIPTION SERVICES ACCESS RIGHTS UNDER THIS AGREEMENT IS BASED ON THESE LIABILITY LIMITATIONS. THESE LIMITATIONS DO NOT APPLY TO CLAIMS OR DAMAGES FROM A PARTY’S IP INDEMNITY COMMITMENTS IN SECTION 9 OR FROM THE CUSTOMER’S BREACH OF AGREEMENT OBLIGATIONS.
10.3 LIMITATION OF LIABILITY IN THE AGGREGATE. THE LIMITATION OF LIABILITY PROVIDED HEREIN IS AGGREGATE FOR ALL CLAIMS BY THE CUSTOMER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
10.4 Jurisdiction-Specific Exclusions. In certain jurisdictions, the law may not permit the exclusion of implied warranties or the limitation of liability for incidental or consequential damages, or in cases of a party’s own fraud, willful injury to the person or property, or violations of law. In these instances, the above limitations may not apply. However, the Vendor’s liability in such jurisdictions will still be minimized to the fullest extent that the law allows.
10.5 Enforceable Against the Vendor. Claims or damages the Customer may hold against the Vendor shall only be enforceable against the Vendor itself, and not against any affiliated entities or individuals including officers, directors, representatives, or agents of the Vendor or any affiliated entities.
SECTION 11. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
11.1 Representations and Warranties. Both Parties affirm to each other that (i) the Agreement is duly signed and legally binding; (ii) no third-party approvals are needed for the execution, delivery, or performance of the Agreement; and (iii) fulfilling the Agreement does not conflict with any other agreements they are part of.
11.2 EXCLUSION OF WARRANTIES. SUBJECT TO APPLICABLE LAWS THAT LIMIT THE EXCLUSION OR LIMITATION OF WARRANTIES OR LIABILITY, AND EXCEPT AS STATED IN THE AGREEMENT, THE CUSTOMER AGREES THAT USE OF THE SUBSCRIPTION SERVICES IS AT ITS OWN RISK. THE VENDOR DISCLAIMS ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT ALLOWED BY LAW. THE CUSTOMER ACKNOWLEDGES THAT THE VENDOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE, NOR THAT THEY WILL MEET SPECIFIC REQUIREMENTS. THE CUSTOMER IS RESPONSIBLE FOR RISKS ARISING FROM THIRD-PARTY SERVICES, INCLUDING NON-VENDOR SERVICES, AND ANY RELATED THIRD-PARTY CONDUCT. “NON-VENDOR SERVICES” REFERS TO THIRD-PARTY PRODUCTS AND SERVICES THAT MAY BE LINKED OR INTEGRATED WITH THE VENDOR’S SERVICES AT THE CUSTOMER’S DIRECTION. THE VENDOR PROVIDES BETA FEATURES “AS IS” FOR TESTING, WITHOUT WARRANTY, SUBJECT TO CHANGES OR CANCELLATION AT THE VENDOR’S DISCRETION.
SECTION 12. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
12.1 Assignment. Except as permitted herein, neither party may assign any part of the Agreement or its rights, or delegate their obligations, without the other’s written consent, which should not be unreasonably withheld. However, the Customer can assign the Agreement to an Affiliate or a successor entity without Vendor’s consent in the event of a merger, change of control, or asset sale, as long as the assignee agrees to abide by the Agreement. Similarly, the Vendor can assign the Agreement without Customer’s consent under the same conditions. If necessary, the Customer must execute paperwork to effectuate the Vendor’s assignment. This Agreement is binding and will benefit both Parties and their permitted successors and assigns.
12.2 Entire Agreement. The Agreement is the complete and exclusive agreement between the Customer and the Vendor, superseding all prior agreements regarding its subject matter. It overrides any terms or conditions in purchase orders, requests for information, proposals, or any other documentation from the Customer, all of which are null and void unless explicitly stated in this Agreement. There are no other agreements, promises, or understandings between the Parties outside of what is expressly stated within the Agreement. Section headings are for convenience and do not influence the interpretation of the Agreement’s provisions.
12.3 Amendment. The Vendor will inform the Customer of any significant modifications to the Agreement via the Subscription Services. Updated versions will bear the date of change at the top of the Agreement document.
SECTION 13. SEVERABILITY
Should a court or governing authority find any term of the Agreement invalid or unenforceable, it will be substituted with a valid, enforceable term that reflects the original intent, and the rest of the Agreement will continue in full force.
SECTION 14. EXPORT COMPLIANCE
The Customer must adhere to applicable export control laws and regulations while utilizing the Subscription Services. They must not use the Subscription Service in any country subject to embargo or sanctions, if they are on any restricted party lists, to store export-controlled sensitive information, or for any unlawful import/export activities. The Vendor is not liable for legal restrictions on access to the Subscription Services, which are not granted by this Agreement.
SECTION 15. RELATIONSHIP OF THE PARTIES
The Agreement does not create a joint venture, partnership, employment, or agency relationship between the Vendor and the Customer; they maintain their status as independent contractors. Additionally, the Vendor’s business partners and third-party services, such as integrators or consultants, are not considered affiliates of the Vendor.
SECTION 16. NOTICE
16.1 Notices to Customer. All notices from the Vendor to the Customer can be delivered either (a) by courier to the address specified on the Order Form, or (b) via email to the Customer’s primary contact’s email address.
16.2 Notices to Vendor. Legal notices to the Vendor should be sent to 199 Bay Street, #4000, Toronto, Ontario, M5L 1A9, Canada, to the attention of the Legal Department, or by email to legal@cognota.com. For non-legal notices, use support@cognota.com.
16.3 Notice Timing. Notices are deemed delivered when received via email, at the moment of receipt for hand-delivered or couriered items, or within five (5) business days when sent by courier service.
SECTION 17. FORCE MAJEURE
Should a Force Majeure occur—events beyond the Vendor’s reasonable control, including, without limitation, natural disasters, global pandemics, public health emergencies, regulatory actions, or court orders—it may necessitate changes to, suspension of, or termination of Subscription Services. In these instances, the Vendor is exempt from liability for any resulting delay or inability to fulfill its obligations under the Agreement.
SECTION 18. GOVERNING LAW
This Agreement is governed by the laws of the Province of Ontario, disregarding conflict of laws principles. Disputes arising from the Agreement will be settled in a court within Ontario, Canada. The Customer explicitly consents to the exclusive jurisdiction of these courts for resolving disputes pertaining to the Agreement or the use of the Subscription Services by the Customer or Authorized Users.
SECTION 19. FEDERAL GOVERNMENT END USE PROVISIONS
For U.S. federal government departments, agencies, or entities contracting on their behalf, the Subscription Services qualify as “Commercial Products” as defined in 48 C.F.R. §2.101, comprising “Commercial Computer Software” and “Commercial Computer Software Documentation” as utilized in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. In accordance with these regulations, the Subscription Services are licensed to the Customer with rights according to the Agreement.
SECTION 20. ETHICAL CONDUCT AND COMPLIANCE
Both Parties, including their employees and agents, affirm they have not and will not partake in any unlawful or inappropriate bribes or kickbacks in connection with the Agreement. They pledge to comply with anti-corruption laws such as the Foreign Corrupt Practices Act of 1977, the UK Bribery Act of 2010, and Canada’s CFPOA. Normal business courtesies like modest, properly given gifts and hospitality without corrupt intent are acceptable under this policy.
SECTION 21. SURVIVAL
Sections 3, 4, 5, 6, 9, 10, 11, and 18 shall survive termination of the Agreement with respect to use of the Subscription Services by the Customer and Authorized Users. Termination of the Agreement shall not limit a Party’s liability for obligations accrued as of or prior to termination or for any breach of the Agreement.
