Schedule 1: Terms and Conditions for the Supply of ClickLearn Services

Version 2 - December 2020

Previous Versions
Version 1 - March 2020

    These ‘Terms and Conditions for the Supply of ClickLearn Services’ apply to and are incorporated by reference into the Purchase Order made by and between ClickLearn ApS and the Customer (as identified on the Purchase Order) and sets forth the terms and conditions under which ClickLearn ApS will supply or provide access to certain software solutions, applications, maintenance and support to the Customer.
    ClickLearn ApS (“ClickLearn” or “Supplier”) incorporated under the laws of Denmark and registered in the Danish Company Register (CVR) under the no. 33075731 with its main establishment at Sjæleboderne 2, 1122 Copenhagen K.

    1 Definitions and Interpretation

    1.1 The definitions in this clause apply to this Agreement. A reference to a statute or statutory provision is a reference to it as it is in force at any time, including all subordinate legislation.

    Agreement:

    means the Purchase Order and the Terms and Conditions, including schedules and sub-schedules incorporated by reference and/or link.

    Authors:

    means the registered and named individuals associated with the Customer and/or the Partner as per the current License agreement AND as defined in Sub-Schedule 1.2 from time to time. Authors can edit, record and maintain Content.

    Business Day:

    means a day other than a Saturday, Sunday or public holiday in Denmark (DK).

    Confidential Information:

    means information that is proprietary or confidential, such as non-public, business-related information, which may be either clearly labelled as such or identified as Confidential Information in Clause 13.

    Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Processing and Appropriate Technical and Organisational Measures:

    shall have the meaning as defined and construed under the Data Protection Legislation.

    Content:

    means any recordings, files etc created by Authors and generated by the Services with the purpose of subsequently being viewed by End-User.

    Customer:

    means the legal entity contracting for the Services.

    Customer Data:  

    means the data input and Content created by the Customer’s Authors when using the Services irrespective of the digital format.

    Data Protection Legislation:  

     

    means the Danish Data Protection Act (“Databeskyttelsesloven”), General Data Protection Regulation (EU) 2016/679) and any other legislation under the applicable governing law under the Agreement relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

    Effective Date:  

    means the date of this Agreement whereby the Supplier confirms the acceptance of the Purchase Order. 

    End-Users:

    means the total number of users as set out in the Purchase Order who are authorized by the Customer to be granted access to the Content created by the Customer and calculated based on unique user login counts on the learning platforms for the entire license period.

    Fees:  

    means the Fees payable by the Customer to the Supplier for the License(s) and other services, as set out in the Purchase Order.

    License:

    means the licensed rights to the Customer as per any paid and current license under the Agreement depending on both the License Type and License Variables set forth in the Purchase Order and subject to the Terms and Conditions.

    License Type:

    means the types of licenses offered by ClickLearn as described in Sub-Schedule 1.2 from time to time.

    License Variables:

    means (in addition to the License Type(s)) the variables as described in Sub-Schedule 1.2 from time to time.

    Normal Business Hours:

    means 09.00 am to 17.00 CET/EST on each Business Day.

    Partner

    means a Customer who has entered into a partnership agreement with the Supplier.

    Platform:

    the different types of third-party software that the Services may connect to subject to the Customer’s License.

    Privacy Policy:

    means the Supplier’s privacy policy as made available at https://www.clicklearn.com/clicklearn-studio-privacy-policy

    Purchase Order:

     

    means the first page(s) of this Agreement marked as such where specification of purchased Services is stated and in the format of the Supplier’s Purchase Order and not any similarly named purchase order format from the Customer.

    Services:  

    means the various elements of services provided by the Supplier to the Customer under this Agreement (other than as provided under the License or in addition hereto), which may be e.g.:

    cloud-based services provided to the Customer via the website notified to the Customer by the Supplier, as more particularly described in the System Documentation;

    software application(s) provided by the Supplier to the Customer for on-premise or device installation on an ongoing basis; and/or

    maintenance and/or support under the Service Level Agreement in Sub-Schedule 1.1 for providing support in relation to the Services.

    System Documentation:  

     

    means any documentation made available online to the Customer by the Supplier via ClickLearn Learning Portal, or such other web address notified by the Supplier to the Customer from time to time, which sets out descriptions of the Services, technical preconditions and instructions to use the Services.

    Term:  

    means the duration for which Services are rendered by the Supplier to the Customer as per the Purchase Order.

    Terms and Conditions

    means these Terms and Conditions for the Supply of ClickLearn Services.

    Trial:

    means the grant of access to and usage of the Services by the Customer, in part or in full, without payment, for a period of time as determined by and at the discretion of the Supplier.

    Trial Customer:

    means the legal entity contracting for a Trial of the Services.

    Trial Period:

    means the period of time as determined by and at the discretion of the Supplier during which the Trial is valid.

    Virus:

    means devices or anything else, including but not limited to any software, code, file or programme, which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

    2 The Services

    2.1 The Supplier shall render and supply to the Customer the Services as stated in the Purchase Order and subsequent written amendments to the Agreement as may be amended from time to time and agreed between the Supplier and the Customer.

    2.2 Under the restrictions of the purchased Services, Customer accepts to use the Services for their intended use only, which for the avoidance of doubt is stated to be ClickLearn specific functionality and features such as creation of Content pertaining to use of the Customer’s Platforms.

    3 Fees, Charges and Payments

    3.1 The Customer shall pay the Fees to the Supplier for the Services as per the License Type and License Variables and other purchased Services as stated in the Purchase Order. A Purchase Order shall be in the format of the Supplier’s Purchase Order and not in any similarly named purchase order format from the Customer to be binding.

    3.2 Payment terms are specified on the Purchase Order. Online orders may be subject to immediate payment upon placement of the order.

    3.3 All amounts and Fees stated or referred to in this Agreement shall be payable in Euros (€), unless otherwise agreed in the Purchase Order, and such amounts are exclusive of any and all taxes, tariffs, or other duties. The Customer shall ensure that all applicable taxes are paid, and the Supplier shall be indemnified by the Customer for any taxes or administrative costs which may become payable as a result of the import/export of the Services as per applicable law in the Customer’s jurisdiction. All amounts and Fees set out in this Clause 3 are non-cancelable and non-refundable.

    3.4 Notwithstanding anything to the contrary in the Agreement, the Supplier accepts a threshold deviation in the number of End-Users set out in the Purchase Order by no more than thirty (30) percent at any given time (“End-User Threshold”), it being understood that if the number of End-Users set out in the Purchase Order is set to one-hundred (100) End-Users, the Supplier accepts the Customer to exceed this amount by no more than thirty (30) End-Users, i.e. one-hundred and thirty (130) End-Users under the Agreement. The Supplier expressly reserves the right to monitor the Customer’s number of End-Users, and if the Customer’s actual number of End-Users exceeds the End-User Threshold, the Supplier expressly reserves the right to adjust the Fees proportionally. Any subsequent Term(s) following renewal(s) will be adjusted to reflect the actual number of End-Users at the end of the current Term.

    3.5 Notwithstanding the above, License Type-specific terms may also apply as stated in Sub-Schedule 1.2 from time to time. ClickLearn will not amend material terms during the Term, i.e. prior to renewal of a subsequent Term. For the avoidance of doubt, ClickLearn may amend the terms effective as of the renewal date for the coming Term.

    3.6 The Supplier may, without any liability to the Customer, disable the Customer’s access to all or part of the Services, and the Supplier shall be under no obligation to provide any or all of the Services, while the invoice(s) for the Services concerned remain unpaid.

    3.7 Unless otherwise stated in sub-schedule 1.2, the Supplier shall be entitled to increase any Fees relating to the Services as effective at the start of each renewal of a Term upon 30 (thirty) days’ prior notice to the Customer and the Purchase Order shall be deemed to have been amended accordingly.

    4 Customer Data

    4.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data. The Customer is entitled to transmission of Customer Data as per the digital formats made available by the Supplier.

    4.2 The Supplier shall ensure relevant security, including back-up, as deemed relevant by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Privacy Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).

    4.3 The Supplier shall, in providing the Services, comply with its Privacy Policy, as such document may be amended from time to time by the Supplier in its sole discretion.

    4.4 Both parties will comply with all applicable requirements of the relevant Data Protection Legislation. Without prejudice to the foregoing, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this Agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf.

    4.5 When using the Services, the Customer shall use synthetic test data, only, and shall never use any data containing Personal Data and/or production data.

    5 General restrictions

    5.1 The Customer shall not, except as may be allowed by any applicable law, which is in-capable of exclusion by agreement between the parties, and except to the extent expressly permitted under this Agreement:

    1. Exceed the maximum number of Authors and/or End-Users that it authorizes to access and use the Services;
    2. use any features or Platform connectivity under the Services unless such use is explicitly permitted under a current License purchased by Customer;
    3. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Content (as applicable) in any form, media or by any other means, except where specifically licensed under the applicable License Type as described in Sub-Schedule 1.2 or where this is inherent in the intended use of the Services;
    4. attempt to decompile, reverse compile, disassemble, reverse-engineer or otherwise reduce to human-perceivable form all or any part of the software provided under the Services;
    5. access all or any part of the Services and System Documentation in order to build a product or service which competes with the Services and/or the System Documentation; or use the Services and/or System Documentation to provide services to third parties unless where this is inherent part of the Agreement between ClickLearn and the Customer and set out in the licence, cf. Sub-schedule 1.2; and/or
    6. subject to Clause 22, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, System Documentation or Content available to any third party, except the Authors and End-Users.

    5.2 The Customer accepts that the availability and flexibility of the Services is subject to fair use of the Services by the Customer under the intended use. Accordingly, the Customer shall not claim or use storage for Customer Data excessively. The Supplier shall assess this on a continuous basis in comparison with other customers with similar Licenses and usage requirements. The Customer accepts that the Supplier in such case may demand the Customer to limit, align and normalize its use of the Services without the Supplier incurring any liability under the Agreement. Further, the Customer also accepts that any latency due to upload time and availability time pertaining to large amounts of Customer Data shall not be attributed to the Supplier nor considered a breach under the Agreement.

    5.3 The Customer shall not access, store, distribute or transmit any Virus, or any material during the course of its use of the Services that:

    1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
    2. facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence;
    3. is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; and/or
    4. is otherwise illegal or causes damage or injury to any person or property.
      The Supplier reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Customer’s access to any material that breaches the provisions of this clause.

    5.4 The rights provided under this Agreement are granted to the Customer, only, and shall not be considered granted to any subsidiary or holding company of the Customer, unless specified in the Purchase Order or applicable License Type.

    6 Additional Services

    6.1 The Customer may, from time to time during any Term, purchase additional Services in excess of any volumes set out in Purchase Order. The Customer shall place such an order online, by e-mail or phone. Confirmation is provided via invoice.

    6.2 Payment terms for any additional Services follows the relevant Purchase Order and the Terms and Conditions.

    7 Supplier’s Obligations

    7.1 The Services are provided “as is” and the Supplier undertakes that the Services will perform substantially in accordance with the System Documentation and the Supplier will act with reasonable skill and care in its performance under the Agreement.

    7.2 The Services are not contingent on or tied to any particular version or functionality at any particular point in time, nor any publications, materials or comments made by or on behalf of the Supplier but the Services may vary depending on the particular version of the Customer’s software and IT environment, and the Supplier may freely update its Services, cf. Clause 7.3. The Customer may access and use online software as it is provided at any given time. Where software is installed on the Customer’s IT environment, the Customer is responsible for using a supported version of the Services and software.

    7.3 The Supplier reserves the right to make improvements, add, change or remove functionality, or correct any errors or omissions in any part of the Services at its sole discretion and without any obligation or liability accruing therefrom. In the unlikely event such a modification permanently, or for a period of more than two (2) months, disables or removes functionality which forms a material part of the Services made available to the Customer, , the Customer is entitled to terminate its agreement with respect to the affected Services, and to receive a pro-rated refund for any Fees paid in advance for the affected Service(s) as sole remedy.

    7.4 The Supplier reserves the right to discontinue any Service, or its availability in a particular market, on twelve (12) months prior notice. The Customer shall be entitled to a pro-rated refund for any Fees paid in advance for the period after the date of discontinuation for the relevant Service. The Customer shall cease using the affected Service after the date of discontinuation of the relevant Service, and shall not be entitled to make any further claims against the Supplier.

    7.5 The Supplier’s obligations above shall not apply to the extent of any non-conformity, which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorized contractors or agents. If the Services do not conform with the foregoing undertaking, the Supplier will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 7.1.

    7.6 Notwithstanding the foregoing in Clause 7.1 and 7.5, the Supplier:

    1. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, System Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
    2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and System Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

    7.7 The Supplier warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.

    8 Customer's Obligations

    8.1 The Customer shall provide the Supplier with:

    1. all necessary co-operation in relation to this Agreement; and
    2. all necessary access to such information as may be required by the Supplier, in order to provide the Services, including but not limited to Customer Data, security access information and configuration services.

    8.2 The Customer shall without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement. The Customer will carry out all its other obligations set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of any assistance agreed between the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary.

    8.3 The Customer shall ensure that the Authors and End-Users use the Services in accordance with the Agreement and shall be responsible for any of its Authors’ and/or End-Users’ breach of the Agreement.

    8.4 The Customer shall ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet shall be borne exclusively by the Customer.

    9 Specific Cloud Service Terms

    9.1 This section applies only to Services rendered by the Supplier as a cloud service from time to time. The ClickLearn cloud environment is comprised of various applications and functionalities that may change under the Terms and Conditions of the Agreement.

    9.2 The parties acknowledge that if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Customer is the Controller and the Supplier is the Processor for the purposes of the Data Protection Legislation. Sub-Schedule 1.3 sets out (i) the scope, nature and purpose of processing by the Supplier, (ii) the duration of the processing and (iii) the types of Personal Data and categories of the data subject. The Customer is informed that it may by way of configuration enable the use of the Supplier as data processor.

    9.3 The Supplier shall supply the level of service as detailed in Sub-Schedule 1.1.

    10 On-Premise Service Terms

    10.1 This section applies to the supply of Services to the Customer were the software is to be installed on Customers own IT environment on the Customer’s premises, including devices.

    10.2 The Provision of Services via any on-premise installations, including but not limited to ClickLearn Studio Application, is subject to the technical requirements stated in the System Documentation at any point in time.

    10.3 The functionalities of Services in on-premise installation may from time to time differ in scope and availability compared to Services provided via cloud. Availability of and development of functionalities are and shall remain at the full discretion and choice of the Supplier.

    10.4 The Customer is responsible for ensuring that the IT environment of the Customer meets and during the Term maintains the minimum technical requirements as required by the Supplier under the System Documentation. The Customer is advised to seek relevant professional assistance and/or advice.

    10.5 The Supplier shall, during the Term, provide the Services and make available the System Documentation to the Customer on and subject to the terms of this Agreement.

    10.6 To the extent that the Supplier may process any personal data on the Customer’s behalf under this Agreement, the provisions of Clause 9.2 similarly applies.

    11 Warranty, maintenance and support

    11.1 The Service Level Agreement (Sub-Schedule 1.1) describes the level of support which the Supplier shall provide where applicable.

    11.2 The Supplier provides a limited one hundred eighty (180) days warranty period from the Effective Date provided the Customer’s IT environment is free from errors and fulfill Clause 8.4 in which the software will perform substantially in accordance with the System Documentation.

    11.3 Error correction and updates under the Service Level Agreement

    11.3.1 The Supplier does not warrant that the software will be completely free from any error or malfunction. Notwithstanding anything to the contrary in this Agreement, the Supplier is obliged to correct any errors or malfunctions in the software as per the Service Level Agreement (Sub-Schedule 1.1).

    11.3.2 The Customer’s only remedy in the event of any error and/or malfunction shall be to demand that the Supplier either:

    1. corrects the error and/or malfunction, and/or
    2. helps the Customer work around or avoid the error or malfunction.
      The limited warranty is considered void if failure of the software is a result from accident, abuse, or misapplication attributable to the Customer, including any such resulting from the Customer’s IT environment.

    11.3.3 When new upgrades and updates of the software become available during the Term, the Supplier shall make them accessible to the Customer. Upon login, the Customer can be notified of such upgrades and updates. Supplier will notify the Customer of upgrades and/or updates via e-mail and/or the Supplier’s homepage.

    12 Propriety Rights

    12.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights pertaining to the Licenses as well as in the Services. The Customer shall retain its rights in Customer Data and relevant documentation as detailed in Clause 4.1, except as provided for in Sub-schedule 1.2.

    12.2 Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any intellectual property rights, including but not limited to patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services or the System Documentation.

    12.3 The Supplier warrants that it owns or has obtained adequate licenses to the intellectual property rights in relation to the Services and the System Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

    13 Confidentiality

    13.1 Each party may be given access to Confidential Information from the other party in order to perform its rights and obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:

    1. is or becomes publicly known other than through any act or omission of the receiving party;
    2. was in the other party’s lawful possession before the disclosure;
    3. is lawfully disclosed to the receiving party by a third party without restriction on dis-closure; and/or
    4. is independently developed by the receiving party, which independent development can be shown by written evidence.

    13.2 Subject to Clause 13, each party shall hold the other’s Confidential Information in confidence and not make the other party’s Confidential Information available to any third party or use the other party’s Confidential Information for any purpose other than as intended under this Agreement.

    13.3 Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

    13.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 13, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

    13.5 Subject to the above, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party, except where required by law.

    13.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitutes the Supplier’s Confidential Information.

    13.7 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

    13.8 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority, any court or other authority of competent jurisdiction.

    13.9 Clause 13 shall survive termination of this Agreement.

    14 Indemnity

    14.1 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or System Documentation infringes any intellectual property rights in force as of the Effective Date, including patents, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

    1. the Supplier is given prompt notice of any such claim;
    2. the Customer provides reasonable co-operation to the Supplier in the defense and settlement of such claim, at the Supplier’s expense; and
    3. the Supplier is given sole authority to defend or settle the claim.

    14.2 In the defense or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement with seven (7) Business Days’ notice to the Customer and in such event the Supplier’s liability shall not exceed an amount equal to a pro-rated refund for any Fees paid in advance for the period after the date of the termination, and shall thus not be liable for any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

    14.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

    1. a modification of the Services or System Documentation by anyone other than the Supplier;
    2. the Customer’s use of the Services or System Documentation in a manner contrary to the instructions given to the Customer by the Supplier; and/or
    3. the Customer’s use of the Services or System Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

    14.4 The abovementioned shall constitute the Customer’s sole and exclusive rights and remedies and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability in regards to infringement of intellectual property rights, including but not limited to patent, copyright, trademark, data-base rights or rights in trade secrets.

    15 Limitation of Liability

    15.1 The Services and the System Documentation are provided to the Customer on an “as is” basis, cf. Clause 7.1. Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for results obtained from the use of the Services and the System Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;

    15.2 The Supplier shall not be liable for any indirect claims and or/ losses or tort, including loss of profits, loss of business, depletion of goodwill and/or similar losses or loss of data or information (except where back-up is provided under the Services), or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges, or expenses however arising under this Agreement.

    15.3 The Supplier’s total aggregate liability in contract (excluding any specific indemnities, cf. Clause 14), including tort (including negligence or breach of statutory obligations, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid or payable by the Customer during the twelve (12) months immediately preceding the date on which the claim arose.

    15.4 Nothing in this Agreement excludes the liability of the Supplier for death or personal injury caused by the Supplier’s negligence, fraud or fraudulent misrepresentation.

    16 Term Renewal and Termination

    16.1 This Agreement shall, unless otherwise terminated in accordance with this Clause 16, commence on the Effective Date and shall continue for the duration of the Term.

    16.2 The Agreement shall be automatically renewed subject to the timely payment of the invoice for the coming Term. Invoice for such renewal is issued no later than thirty (30) days prior to the end of Term calculated from the Effective Date or as otherwise agreed between the parties in writing. Failure to pay such invoice constitutes a termination of the Agreement and revocation of the associated Services and License(s) at the end of the Term.

    16.3 The Agreement cannot be terminated for convenience during the Term.

    16.4 Termination for cause: Without affecting any other right or remedy available to it, a party may terminate this Agreement with immediate effect by giving written notice to the other party if:

    1. the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default for no less than thirty (30) days after being notified in writing to make such payment;
    2. a party commits a material breach of any other terms of this Agreement where such breach is irremediable, or (if such breach is remediable) fails to remedy that breach within a period of 30 (thirty) days after being notified in writing to do so;
    3. a party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
    4. the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due, or a ruling of bankruptcy, debt restructuring, compulsory dissolution, or reconstruction has been passed in relation to the Customer, unless the appointed relevant trustee(s) (e.g. of the insolvent estate or restructuring case) without undue delay inform(s) us and accept(s) the continuance of the Agreement;
    5. any other event occurs, or proceeding is initiated, with respect to the other party in any jurisdiction to which it is subject, that has an effect equivalent or similar to any of the events mentioned in Clause 16; and/or
    6. as otherwise set out explicitly in this Agreement.

    16.5 Upon termination for any reason, and lapse of any termination period set out under this Agreement:

    1. all licenses granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the System Documentation;
    2. each party shall return and make no further use of any equipment, property, System Documentation and other items (and all copies of them) belonging to the other party;
    3. the Supplier shall destroy or otherwise dispose of any of the Customer Data in its possession in accordance, unless the Supplier receives, no later than thirty (30) days after the effective date of the termination of this Agreement, a request for the de-livery to the Customer of the Customer Data. The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
    4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

    17 Force Majeure

    17.1 The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, terrorism, epidemic, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

    18 Conflicting Terms

    18.1 If there is an inconsistency between any of the provisions in the main body of the Agreement, Purchase Order, the Terms and Conditions and the Schedules, including Sub-Schedules, the provisions in the Sub-Schedules shall prevail unless otherwise explicitly agreed in writing between the parties. Any Appendices agreed between the Parties shall always be prevailing. Notwithstanding the above, the terms relating to Data Protection in Sub-Schedule 1.3 shall always be prevailing. The Supplier may use and add a customer specific purchase order number (or the likes) in the Supplier’s Purchase Order to the Customer. However, any such reference shall not imply any other terms and conditions are made part of the Agreement by reference.

    19 Variation, Waiver and Rights and Remedies

    19.1 No variation of this Agreement shall be effective unless it is in writing and signed by the parties.

    19.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

    19.3 Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

    20 Severance

    20.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforce-ability of the rest of this Agreement.

    20.2 In the event that any provision or part-provision of this Agreement is deemed deleted as per the above clause 20.1, the parties shall negotiate in good faith to agree a replacement provision which, to the furthest extent possible, achieves the intended commercial result of the original provision and has the most similar legal meaning.

    21 Entire Agreement

    21.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

    21.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

    21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

    22 Assignment

    22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract, sublicence or deal in any other manner with all or any of its rights or obligations under this Agreement.

    22.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

    23 No Partnership or Agency

    23.1 Except in the event of the parties entering into a specific written agreement to this effect, nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

    24 Notices

    24.1 Any notice required to be given under this Agreement shall be made via e-mail. Parties agree to conscientiously and loyally confirm receipts of business notices received via e-mail.

    24.2 If notices may not be send or are confirmed via the above method, a Party shall send relevant notices by prepaid first-class post or recorded delivery post which shall be deemed to have been received at the time at which it would have been delivered in the normal course of postal service.

    25 Changes

    25.1 The Supplier may from time to time modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. The Supplier will post notice of modifications to these terms on its website www.ClickLearn.com and/or the Customer’s portal. Changes will not apply retroactively and will become effective no sooner than thirty (30) days after they are posted, unless such changes are result of changes in the law as may apply sooner.

    26 Governing Law, Dispute Resolution and Venue

    26.1 This Agreement and all disputes arising out of or in relation to this Agreement shall in all aspects be governed by the Laws of the Kingdom of Denmark, except for its rules pertaining to conflict of laws. The United Nations Convention on Contracts for the International Sale of Good shall not apply.

    26.2 The Court of Copenhagen Denmark shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement in the first instance.