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

Version 1.0 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 and the Customer (as identified on the Purchase Order) and set forth the terms and conditions under which ClickLearn will supply or provide access to certain software solutions, applications, maintenance and support.

    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:

    the Purchase Order and Terms and Conditions, including schedules incorporated by reference and link.

    Authors

    are registered and named individuals associated with Customer as per the current Subscription AND as defined in Sub-Schedule 1.2 from time to time.

    Business Day:

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

    Confidential Information:

    information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 12.

    Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures:

    shall have the meaning as defined in the Data Protection Legislation.

    Content

    Refers to such recordings, files etc created by Authors and generated by the Services with the purpose of subsequently being viewed by End-User Consumers.

    Customer

    the legal entity contracting the Services.

    Customer Data:  

    the data input and Content created by the Customer’s Authors when using the Services irrespective of the digital format, and such documentation and materials generated by the service shall remain the property of the Customer.

    Data Protection Legislation:  

     

    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:  

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

    End-users

    the total number of unique individuals who are authorised by Customer to use (consume) the Content created via the Services according to current Subscription AND as so defined in Sub-Schedule 1.2 from time to time.

    Fees:  

    the Fees payable by the Customer to the Supplier for the Subscription, as set out Purchase Order.

    License

    the total assigned rights to Customer as per any paid and current Subscription in any Term under the Agreement.

    Normal Business Hours:

    09.00 am to 17.00 CET/EST, each Business Day

    Platform:

    the different types of third-party software that the Services may connect to subject to Customer’s Subscription AND as so defined in Sub-Schedule 1.2 from time to time.

    Privacy policy

    Suppliers privacy policy as it is made available at https://www.clicklearn.com/clicklearn-studio-privacy-policy

    Purchase Order:

     

    the first page(s) of this Agreement marked as such where specification of purchased Services are stated. A Purchase Order shall be in the format of Supplier’s Purchase Order to be binding, and not any similar named purchase order format from Customer.

    Services:  

    the various elements of services provided by the Supplier to the Customer under this Agreement:

    cloud based services provide to 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 as part of the Services to Customer for on-premise or device installation;

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

    System Documentation:  

     

    any documentation made available to the Customer by the Supplier online 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:  

    is the Subscription period as per the Purchase Order.

    Terms and Conditions

    Terms and Conditions for Supply of ClickLearn Services

    Trial:

    means the usage of Services, in part or in full, for a by Supplier determined period of time without payment.

    Trial Customer:

    the legal entity contracting a Trial of Services.

    Subscription:  

    is the total scope of licensed rights to the Service in a Term according to the current Subscription and subject to the Terms and Conditions as this will vary depending on purchased features (Basic, Essentials, Professionals and Enterprise), number of Authors, End-Users and the selected Platforms which the Services may be applied on.

    Virus:

    anything or device (including 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 Supplier shall render and supply to Customer the Services as stated in the Purchase Order and subsequent Subscription amendments under the Terms and Conditions of the Agreement.

    2.2 Under the restrictions of the Subscription, Customer accepts to use the Services for their intended use only which is generation of e-learning pertaining to Customer’s Platforms. In pursuing this purpose, Customer will also use synthetic test data and never any data containing actual personal data and/or production data.

    3 Fees, Charges and Payments

    3.1 The Customer shall pay the Fees to the Supplier for the Services as per the Subscription.

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

    3.3 All amounts and fees stated or referred to in this Agreement shall be payable in Euros (€), unless otherwise stated in Purchase Order, and are exclusive of any and all taxes, tariffs etc; and are non-cancel-able and non-refundable. Supplier is not, and Customer shall be responsible for ensuring any additional payment of taxes, tariffs etc. incumbent on Customer as per the local law of Customers jurisdiction.

    3.4 Subscription are subject to an annual Fee. Any additional purchases during the Term will be prorated and invoiced for the current Term to ensure overall alignment of Customers total payment for Services as per the first coming renewal.

    3.5 Invoices for any subsequent Terms will be issued by Supplier and due date will be set at commencement of a new Term. Non-payment constitutes termination of the services.

    3.6 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) concerned remain unpaid; and

    3.7 The Supplier shall be entitled to increase any Fees relating to the Services at effective of the start of each renewal of a Term upon 30 (thirty) days’ prior notice to the Customer and Purchase Order shall be deemed to have been amended accordingly.

    4 License Under The Subscription – Rights and Restrictions

    4.1 Subject to the Customer purchasing Services under the Agreement, the Supplier hereby grants to the Customer and solely for the Customer’s business operations and in accordance with the Purchase Order and/or at any time current license statement a global, non-exclusive, non-transferable right, without the right to grant sublicences, to use and permit the Authors and End-Users to use the Services and the System Documentation during the Term. Any changes to the purchased Services and/or lapse of existing Services will be reflected in the license statement. Customer may upon request receive an updated license statement.

    4.2 The criteria defining the license model is described in Sub-Schedule 1.2.

    4.3 Customer Data

    4.3.1 The Customer shall own all right, 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. Customer is entitled to transmission of Customer Data as per the digital formats made available by Supplier.

    4.3.2 The Supplier shall ensure relevant security, including back-up, as deemed relevant by 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 commercial 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).

    4.3.3 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.

    4.3.4 Both parties will comply with all applicable requirements of the relevant Data Protection Legislation. Without prejudice to the foregoing, 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.

    4.4 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 End-Users that it authorizes to access and use the Services and the System Documentation;
    2. Use any Features or Platform connectivity under the Services unless comprised of the Subscription;
    3. Except where specifically licensed under Clause 4.2, or where this is inherent in the intended use of the Services and the System Documentation, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, dis-play, transmit, or distribute all or any portion of the Services and/or System Documentation (as applicable) in any form or media or by any means; or
    4. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software provided under the Services; or
    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 in the Services; or
    6. subject to Clause 21, license, sell, rent, lease, transfer, assign, distribute, display, dis-close, or otherwise commercially exploit, or otherwise make the Services and/or System Documentation available to any third party except the Authors and End-Users,
    7. No commercial and/or free distribution of Content. The Customer shall not commercially exploit, or otherwise make the Content available to third parties. Any third par-ties must purchase and maintain relevant subscriptions from Supplier. For the sake of clarify, Customer’s authorized Authors and End-Users are not considered third parties to customer.
    8. The Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the System Documentation and, in the event of any such unauthorized access or use, promptly notify the Supplier.

    4.5 Fair usage of the Services. Customer accepts that the availability and flexibility of the Services is subject the fair use of the Services by Customer under the intended use. Accordingly, Customer shall not claim or use storage for Customer Data excessively. Supplier shall assess this on a continuous basis in comparison with other customers with similar subscriptions and usage requirements. Customer accepts that Supplier in any such case may demand Customer to limit, align and normalize its use of the Services without incurring any liability under the Agreement. Further, Customer also accepts that any latency due to upload time and availability time pertaining to large amounts of Customer Data shall not be deemed Supplier default under the Agreement.

    4.6 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, in-fringing, 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;
    4. or is otherwise illegal or causes damage or injury to any person or property.
    5. the supplier reserves the right, without liability or prejudice to its other rights to the customer, to disable the customer’s access to any material that breaches the provisions of this clause.

    4.7 The rights provided under this Chapter 4 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 Subscription.

    5 Trial

    5.1 The trial is free, non-binding and automatically expires after the Trial period as this is set by Supplier, unless the Trial period is extended by Supplier, in its sole discretion. The Trial is intended for evaluation purposes of the Services, only.

    5.2 Supplier will make such Services available to Trial Customer as defined in the Trial confirmation e-mail until the earlier of (a) the end of the free Trial period for which Trial Customer purchases in whole or in part the Services rendered in Trial Period; (b) the start date of any Subscription to other Services purchased by Trial Customer; or (c) termination of the Trial by Supplier in its sole discretion.

    5.3 The Trial is subject to these Terms and Conditions that govern the access to and use of the Services offered in the Trial and is considered an Agreement between Supplier and Trial Customer.

    5.4 By accepting a Trial, Trial Customer agree to ensure that anyone who uses the Services does so only for Trial Customer’s authorized use and complies with the Terms and Conditions.

    5.5 The Trial is owned by Supplier, and is licensed, not sold, to the Customer. Supplier grants a limited, non-exclusive, non-assignable, non-transferable, revocable world-wide license for the Trial.

    5.6 The Trial is supplied "as is", without any warranty, express or implied, including, but not limited to, the implied warranties or conditions of merchantability and fitness for a particular purpose or uninterrupted or error free use of the Trial or that defects will be corrected or that the Trial makes it available are free of viruses or anything else which may be harmful or destructive. The entire risk arising out of use or performance of the Trial and any System Documentation remains with Trial Customer.

    5.7 Any Content generated by Trial Customer as part of a Service during the Trial will be permanently lost unless Trial Customer purchase a Subscription to the same Service as covered by the Trial.

    5.8 As the Trial is free, any terms regarding payment shall be disregarded in the Trial period. Other terms specifically covered in this Chapter 5 will prevail any wording to the contrary in the Terms and Conditions. Further Chapter 6, 9, 10, 13 and 15.1-3 shall not apply to Trial.

    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 or 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 Suppliers Obligations

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

    7.2 The Services is 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 Supplier. 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 software.

    7.3 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 disables or removes functionality which forms a material part of the Services permanently, or for a period of more than two (2) months, the Customer is entitled to terminate its Subscription for the affected Services, and to receive a pro-rated refund for any Fees paid in advance for the affected software.

    7.4 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, shall cease using the affected Service after the date of discontinuation for the relevant Service, and shall not be entitled to make any further claims against Supplier.

    7.5 The undertaking 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 fore-going undertaking, 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 (a) does not war-rant 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 (b) 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 (i) all necessary co-operation in relation to this Agreement; and (ii) 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 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. Customer will carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may ad-just any agreed timetable or delivery schedule as reasonably necessary.

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

    8.4 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.

    9 Specific Cloud Service Terms

    9.1 This section applies only to Services rendered by 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 Data Processing. 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 the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject. Customers is informed that it may by way of configuration enable the use of Supplier as data processor.

    9.3 Service Levels. 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 Customer were the software is to be installed on Customers own IT environment on Customer’s premises, including devices.

    10.2 The Provision of Services via any on-premise installations hereunder 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 supplier.

    10.4 Customer is responsible for ensuring that the IT environment of Customer meets and during the Term of the Agreements maintains the minimum technical requirements as required by Supplier under the System Documentation. Customer is ad-vised 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 Data Processing. To the extent that Supplier may process any personal data on Cus-tomer’s behalf under this Agreement, the provisions of Clause 9.2 similarly applies.

    10.7 Warranty, maintenance and support

    10.7.1 The Service Level Agreement (Sub-Schedule 1.1) describes the support Supplier shall provide.

    10.8 The Supplier provides a limited one hundred eighty (180) days warranty period provided Customers IT environment is free from errors and fulfill Clause 9.2 in which the software will perform substantially in accordance with the System Documentation.

    10.9 Error correction and updates under the Service Level Agreement

    10.9.1 Supplier does not warrant that the software will be completely error free. Not withstanding 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.

    10.9.2 Customers only remedy shall be for ClickLearn either to (a) correct the error or (b) help Customer work around or avoid the error. The limited warranty is considered void if failure of the software is a result from accident, abuse, or misapplication attributable to Customer including Customers IT environment.

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

    11 Propriety Rights

    11.1 The Customer acknowledges and agrees that the Supplier and/or its licencors own all intellectual property rights in the Services and the System Documentation. Customer is entitled to keep Customer Data and relevant documentation as detailed in Clause 4.3.

    11.2 Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any 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.

    11.3 The Supplier confirms that it has all the 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.

    12 Confidentiality

    12.1 Each party may be given access to Confidential Information from the other party in order to perform its 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; or
    4. is independently developed by the receiving party, which independent development can be shown by written evidence.
    5. Subject to Clause 12, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

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

    12.3 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 12, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

    12.4 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.

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

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

    12.7 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.

    12.8 The above provisions of this Chapter 11 shall survive termination of this Agreement, however arising.

    13 Indemnity

    13.1 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, including patents effective as of the Effective Date, 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.

    13.2 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 on seven (7) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

    13.3 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; or
    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; 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.

    13.4 The foregoing states 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, for infringement of any patent, copyright, trademark, data-base right or right of confidentiality.

    14 Limitation of Liability

    14.1 The Services and the System Documentation are provided to the Customer on an “as is” basis. 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;

    14.2 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.

    14.3 the Supplier’s total aggregate liability in contract (excluding any specific indemnities), 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.

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

    15 Term Renewal and Termination

    15.1 This Agreement shall, unless otherwise terminated as provided in this Clause, commence on the Effective Date and shall continue for a Term, as defined in the Purchase Order, from the Effective Date.

    15.2 The Agreement is automatically renewed subject to the timely payment of the in-voice for coming Term. Invoice is issued no later than thirty (30) days prior to the anniversary date of the Effective Date, or at any the payment terms agreed.  Failure to pay invoice, constitutes a termination of the Agreement and the associated subscription.

    15.3 The Agreement cannot be terminated for convenience in the Term.

    15.4 Termination for cause: Without affecting any other right or remedy available to it, either 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 not 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 which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 (thirty) 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. 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 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 taken, 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 15;

    15.5 On termination of this Agreement for any reason:

    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.

    16 Force Majeure

    16.1  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.

    17 Conflicting Terms

    17.1 If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail. The aforementioned shall not apply to terms relating to Data Protection in Sub-Schedule 1.2. Supplier may use and add a Customer specific purchase order number (or the like) in Supplier’s Purchase Order. However, any such reference shall not imply any other terms and conditions shall be made part of the Agreement by reference.

    18 Variation, Waiver and Rights and Remedies

    18.1 No variation of this Agreement shall be effective unless it is in writing and signed by the Parties, except where otherwise explicitly stated in the Agreement.

    18.2 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.

    18.3 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.

    19 Severance

    19.1 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. If any provision or part-provision of this Agreement is deemed deleted as per the above clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

    20 Entire Agreement

    20.1 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.

    20.2 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.

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

    21 Assignment

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

    21.2 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.

    22 No Partnership or Agency

    22.1 Nothing in this Agreement is intended to or shall operate to create a partnership be-tween 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).

    23 Notices

    23.1 Any notice required to be given under this Agreement shall be made via e-mail. Par-ties agree to conscientiously and loyal confirm receipts of business notices received via e-mail.

    23.2 If not, a Party shall send relevant notices by prepaid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

    24 Changes

    24.1 Supplier may from time to time modify these terms or any additional terms that apply to a Service to, for example, to reflect changes to the law or changes to our Services. Supplier will post notice of modifications to these terms on www.ClickLearn.com and/or Customer 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.

    25 Governing Law, Dispute Resolution and Venue

    25.1 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 the laws regarding conflict of laws. Notwithstanding the foregoing, the United Nations Convention on Contracts for the International Sale of Good shall not apply.

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