General Terms and Conditions
The following General Terms and Conditions shall govern the Customer’s use of the Platform and other services provided by Eurekos or its sub-contractors.
Definitions In these terms and conditions, defined terms and expressions with capital letters shall have the meaning set out below:
Account means a user account accessible by way of a user-ID and a password which each user designated by the customer will be equipped with in order to use the Platform.
Access Details means the user-IDs and passwords to access the account designated to each user to use the Platform.
Additional Services means other services than the Platform, such as e.g. Consultancy or training services, which Eurekos may deliver according to separate agreements.
Affiliate means a legal entity controlled by the Customer by (i) direct or indirect owner-ship of more than 50% (fifty per cent) of the share capital or other ownership interest; or (ii) by the right to exercise more than 50% (fifty per cent) of the votes; or (iii) by the contractual right to designate more than half of the members of such entity’s board of directors or similar executive body.
Agreement means the Eurekos SaaS agreement consisting of the individual terms setting out the relevant product and pricing methodology (The “End Client SaaS Agree-ment”) and these General Terms.
Confidential Information means any infor-mation disclosed by one party to the other pursuant to this Agreement which is marked “Confidential”; “Proprietary,” or which, under the circumstances surrounding disclosure, would reasonably be expected to be confi-dential.
Customer means the entity set out in the End Client SaaS Agreement.
Data means any data entered into the Plat-form by the users.
Eurekos means Eurekos Systems ApS.
General Terms means these Eurekos ApS General Terms and Conditions and the Data Processing Agreement.
License means the license granted to the Customer in this Agreement.
Normal Business Hours means 8-18 CET excluding weekends and public holidays.
Parties means the Customer and Eurekos collectively.
Platform means the Eurekos Learning Man-agement Platform.
Service Fees means the fees charged by Eurekos.
The following General Terms shall govern the Customer’s use of the Plat-form and other services provided by Eu-rekos or its sub-contractors. Unless a separate professional services agree-ment exists, these General Terms gov-ern the provision of professional ser-vices. Deviations from these General Terms shall only apply to the extent they have been accepted by the Parties in writing.
2. The Services
Eurekos shall make the Platform availa-ble to the Customer. Eurekos may deliv-er Additional Services to the Customer according to separate agreements.
This Agreement grants to the Customer and its Affiliates, a non-transferable, non-exclusive global license to use the Platform including any patches and as-sociated documentation subject to the terms set forth herein.
The Customer’s use of the Platform is subject to the Customer’s timely and ef-fective payment of Service Fees charged by Eurekos, including for the number of active users logged on the Platform in the preceding month.
Eurekos may grant access to additional modules of the Platform. Such access is subject to separate agreements and pricing.
Eurekos may at its discretion disable the customers access to the Platform and/or terminate the Agreement immediately (i) if Service Fees or other fees are not paid on time for at least two consecutive payment periods, or (ii) if the Customer uses the Platform beyond the agreed scope or (iii) if a third party instructed, engaged or allowed access by the Cus-tomer, amend, modify, make additions, deletions or changes to the Platform; or (iv) if the Customer permits non-authorized users to use the Platform; or, (v) if the Customer fails to comply with any other provision of these General Terms.
Eurekos shall be entitled to amend and change the Platform for updates, patch-es and technical reasons, without the Customers prior consent, provided that such amendments do not materially pre-vent the Customer from using the Plat-form as specified in this Agreement. A current description of the Platform and key functionality can be found on Eure-kos website.
The Customer is aware and accepts that the Platform is “as is” without any guar-antee or warranty for the correctness of the output content. Further, any use of the output content by the Customer shall be at the Customer’s own risk and no business decisions should be made based on the results without prior vali-dation thereof.
The use of the Platform may require for the Customer’s it-systems and communi-cation capabilities to have certain mini-mum specifications, as set out by Eure-kos. The Customer is responsible for that such requirements are met by the Cus-tomer and will continue to be so during the term of the Agreement.
Eurekos always recommend using the latest version of browsers. Eurekos will run on most known browsers. Mobile ac-cess/tablets can be used but not all functions will be accessible on all types of units or could have a different user in-terface depending on the unit. The standard browser is Google Chrome and if problems or issues arise, they can be immediately handled by using a different browser, this is to be considered a cor-rective action and should be performed before contacting Eurekos.
Eurekos may provide the Customer with information and notices about the Plat-form electronically, including via email, through the Platform, or through a web site that Eurekos identifies. Notice is given as of the date it is made available by Eurekos.
3. Customer Obligations
The Customer shall:
- provide Eurekos’s consultants with the information reasonably required to complete the work;
- contribute to planning the work and allocate relevant resources (including personnel);
- as far as necessary provide the consultants with access to its IT-installations and the databases;
- ensure availability of necessary backup, so that the Customer’s Data at any given time may be reconstructed.
Eurekos intends that the Platform shall be available to the Customer 24 hours each day, 365 days a year.
The availability of the Platform shall minimum be 99% calculated on a monthly basis.
The Availability shall be calculated based on the following formula:
Availability = Actual Uptime / (Expected Uptime – Scheduled Downtime) * 100 %.
- Actual Uptime shall be calculated as the sum of time where the Platform was operable as report-ed by Eurekos.
- Expected Uptime shall the num-ber of hours in a given month.
- Scheduled Downtime shall be any planned service windows as fur-ther set below.
- Ordinary planned ser-vice windows: every 3rd Sunday of the month 8-12.
- Planned service win-dows can further be made in case of critical errors or security breaches by Eurekos giving 48 hours prior notice to the Customer on the Platform.
Emergency situations may require maintenance work to be done outside the service windows and/or with shorter or no prior notice.
Eurekos shall not be liable – and any lack of availability shall not count against Ac-tual Uptime – if due to any delay or fail-ure due to breakdown in communication access or facilities or for internet break-down and/or cause by the Customer’s own service Platform and/or systems which integrate to Eurekos or other mat-ters outside Eurekos’ control.
5.Backup and Stored Data
Eurekos currently uses DigitalOcean as cloud hosting and application storage partner and Amazon Web Services for video streaming and video storage. Eu-rekos will inform Customer if it replaces either of those subcontractors.
In case no specified agreement with a client is in place, Eurekos minimum re-tain incremental backups of the applica-tion and application Data daily for 1 week, weekly for 4 weeks but not for vid-eo Data (which is not backed up by Eure-kos.
Eurekos is obliged to perform reasona-ble attempts to restore Data lost or cor-rupted without undue delay, and free of charge, if Data loss or corruption is caused by Eurekos, its affiliates, or its suppliers or subcontractors. Data re-store for reasons attributable to the Customer, such as e.g. accidental dele-tion by the Customer, will be considered an Additional Service and invoiced at EUR 200 per hour.
The Customer’s systems logs will be saved for 1 month. Statistical Data is kept and stored for 5 years after the us-er’s deletion. Logs and statistic older than the specified period will be deleted without prior notice.
6. Support & Service Levels
This section set forth the terms for the service levels and support between the Parties of the Agreement.
Guidelines for use of the Platform are found via the online “Help” functionality provided with the Platform. Eurekos pro-vides support and contact details on the website.
The Customer makes the initial defini-tion of the support level at the time of fault notification to Eurekos. The re-sponse time is determined by the initial severity level definition made by the Customer. During or after the trouble-shooting and remedy work, Eurekos has the sole authority to redefine severity level. If the severity level is changed, Eu-rekos shall notify the Customer without delay.
The Customer shall provide 1st level support services regarding questions re-lating to login, including but not limited to matters relating to user access rights, roles, registrations, organizational as-pects – and change, and the guidance of the users in the use of Eurekos in the Customer’s own organization.
The Customer shall provide 2nd level support limited to matters pertaining to the functionality of the system and fault correction as stated in the agreement.
Support requests may only be passed on to Eurekos by Platform administrators who have a working understanding of the Platform. 6.7
Definition of support levels when esca-lated to Eurekos (following 1st and 2nd level support provided by the Customer) is enclosed as Appendix A.
Matters pertaining to infrastructure are subject to 3rd level support from Eure-kos service level response times for 3rd level support is based on time of report-ing the issue to the hosting supplier.
7. Updates and Releases
The Platform is regularly updated with patched or new releases are rolled out. This is to ensure a continued and secure operation. The following definitions and update procedures has been agreed up-on the signature of the Agreement:
- Patches can be made at any point at the full discretion of Eurekos.
- New releases are prepared, and the Customer is alerted 30 days ahead of the release to the production en-vironment. New releases may re-quire changes to integrations etc.
8. User Account
In order to use the Platform, each user designated by the Customer will be equipped with an Account. Each Account shall be accessed only by the individual user that is associated with that specific Account.
The Customer shall ensure that the Access Details are secured at the same level of standards as its other creden-tials. The Customer is liable for any mis-use of the Platform. Furthermore, the Customer shall inform Eurekos immedi-ately if the Customer suspect that any of the Customers Access Details or Ac-counts has been compromised.
9. Compliance with Legislation
The Customer shall comply with all relevant legislation in the Customers ju-risdiction.
Any advice or information given by Eurekos in this respect shall be given without any warranty or liability for its correctness or completeness and the Customer shall be responsible for mak-ing the necessary inquiries with relevant authorities and bodies to ensure that the Customer’s use of the Platform is compliant with any relevant legislation or applicable guidelines.
If required, the Customer shall obtain the necessary consent from the users of the websites for which the Platform are applied.
10. Data – Ownership and Security
Data entered into the Platform by the users shall belong exclusively to the Customer, however, Eurekos shall be en-titled to analyse the Data for the pur-pose of improving and maintaining the quality and scope of its services, in ac-cordance with this agreement.
Eurekos shall take reasonable and industry compliant measures to ensure that Data are kept safe and are backed up, however Eurekos shall not be liable for any such loss of Data which is beyond Eurekos’ control. For specific backup pro-cesses see clause 5.
The General terms are subject to latest version of Eurekos System ApS Data Pro-cessing Agreement which the Customer has received, and which can be found on Eurekos’ website.
11. Service Fees and Payment Terms
The Service Fees and any payment for additional services shall be billed monthly in arrears on the last date of the month reflecting the Customers us-age of the Platform, including the num-ber of users on the Platform. Invoices shall become due on the date of the in-voice and shall be payable 8 days from the date of the billing.
All prices are exclusive of any taxes, vat, fees, levies or duties imposed by tax au-thorities.
In the event of late payment Eurekos may charge interest at a rate of 1.5% per commenced month until payment in full (including interest and reminder charges) is made.
The Customer shall not be entitled to set-off or omit due payments with a counterclaim.
12. Term and Termination
The Agreement becomes effective when signed by both Parties and runs until terminated by either party.
Unless otherwise agreed in writing, the agreement shall be non-terminable for a subscription period of 12 months of the date of its signing. After the expiry of the 12 months period, the Agreement may be terminated for convenience in writing by either party giving 3 months’ notice before the end of the month.
Upon expiry, notwithstanding the cause hereof, Eurekos shall be obliged to pro-vide termination assistance services which will be billed at EUR 150 per com-menced hour, after which Eurekos is en-titled to cease the Platform and to de-lete any customer Data in its server.
If a party ceases to do business or otherwise terminates its business opera-tions or becomes insolvent or seeks pro-tection under any bankruptcy, receiver-ship, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against a party and is not dismissed within 60 days, the other party may ter-minate this Agreement upon giving 30 days’ notice of termination.
Eurekos warrants that:
(i) it has the right to enter into this Agreement and to grant to the Cus-tomer a license or sub-license to use the Platform as contemplated by this Agreement;
(ii) the Platform is to the best of Eure-kos’ knowledge free from viruses and other malicious code.
Except for the expressed warranties set forth herein Eurekos and its suppliers disclaim all other warranties, promises or representations, expressed or im-plied, including the warranties of mer-chantability or fitness for any particular purpose, with respect to the Platform, any lost Data or documentation, soft-ware produced Data, any services or technical assistance or any other item delivered by Eurekos.
14. The Customer’s Remedies
The Customer’s sole remedy for any defect in the Platform for which Eurekos is responsible and Eurekos’ obligation under the Agreement will be at the ex-clusive choice of Eurekos, either to fix or replace the defect services.
The Customer has no other remedies except if required by mandatory law in the customers jurisdiction.
In case the availability of the Platform does not meet the availability as set out in clause 4.2, the Customer shall be en-titled to request a deduction from Eure-kos’s next invoice calculated as follows: Availability: 99.0% or more / Penalty: Monthly Service Fees * 0%
Availability: 97% to less than 99% / Penalty: Monthly Service Fees * 5%
Availability: 96% to less than 97% / Penalty: Monthly Service Fees * 10%
Availability: 95% to less than 96% / Penalty: Monthly Service Fees * 15%
Availability:Less than 95% / Penalty: Monthly Service Fees * 100% 14.4
In no event shall the total credited amount for one month payable pursuant to Clause 14.3 exceed 100 % of the monthly Service Fees.
Any unavailability caused by planned service windows as set out in clause 4.5 shall not be subject to deduction as de-scribed above in clause
Payment of penalty as set out above shall be Customer’s sole and exclusive remedy for Eurekos’s non-compliance with the Service Levels for availability of the Platform.
In no event shall Eurekos, its officers, agents, employees or suppliers be liable to any person or entity for the loss of profits or for indirect, special, incidental or consequential damages arising out of or related to the Platform or the perfor-mance of the services, even if Eurekos or its officers, agents, employees, or sup-pliers have been advised of the possibil-ity of such damages. Without prejudice to Eurekos’ obligations to restore Data as set out in Clause 5.3, loss of Data and the cost of restoration thereof shall be considered indirect damages hereunder.
In no event shall the total, cumulative liability, including without limitation damages, proportional reductions and indemnifications, of Eurekos and its sup-pliers exceed the higher of 1) twelve months service fee, or 2) EUR 200.000.
16. Third Party Rights
If a third party makes a claim against the Customer that any part of the ser-vices originating from Eurekos infringes any patent, copyright or other intellec-tual property right, Eurekos will defend the Customer against such claim and pay all costs, damages and expenses – including reasonable attorney’s fees – fi-nally awarded against the Customer by a court having jurisdiction over the mat-ter; provided that:
(i) the Customer notifies Eurekos in writing no later than 5 days after the Customer has become aware of a claim or a potential claim;
(ii) Eurekos may assume sole control of the legal handling of the claim and all related actions and negotiations; and
(iii) the Customer – at the Customer’s own cost – provide Eurekos with the assistance, information and authori-ty, which in the reasonable opinion of Eurekos will be necessary to per-form Eurekos’ obligations under this clause.
Notwithstanding the above, Eurekos shall have no liability for
(i) any claim based on the combination of the Platform with products or ser-vices not provided by Eurekos
(ii) any use of the Platform not in ac-cordance with this Agreement; or
(iii) modification of the Platform by any person other than Eurekos.
If, due to a claim or the threat of a claim,
(i) any part of the Platform is held by a court having jurisdiction over the matter, or in Eurekos’ reasonable opinion may be held to infringe the rights of a third party by such a court,
(ii) the Customer receives a valid court order preventing the Customer from using any part of the Platform, or
(iii) in Eurekos’ reasonable opinion the Customer may receive such an order, Eurekos shall at its own expense
a. Obtain for the Customer the right to continue the use of this part of the Platform, or
b. Replace or modify the Platform to make it non-infringing pro-vided that such modification or replacement will provide the Customer with a substantially equivalent result.
If none of the above options are availa-ble on a basis that Eurekos considers to be commercially reasonable, then Eure-kos may – in whole or in part – terminate the Agreement and refund to the Cus-tomer the Service Fee paid in advance and unused by the Customer for the in-fringing part of the Platform, as well as the license fee paid for any part of the Platform that are rendered unusable by the Customer as a result of such unre-solved infringement
Each party shall maintain confidentiality of the other party’s Confidential Infor-mation. In particular, the Customer shall keep this Agreement, and all other commercial, financial, technical infor-mation disclosed to or otherwise learned by the Customer, its employees or advi-sors, in connection with this Agreement (whether disclosed orally, in documen-tary form, by demonstration or other-wise) confidential.
If the Customer wishes to provide access to Confidential Information, including confidential material such as instruction books, training materials, flow charts, Data models and entity relationship (er) diagrams to a third party providing con-sultancy or any IT services to the Cus-tomer, such disclosure is permitted, pro-vided such third party prior to any dis-closure has signed and executed either a non-disclosure agreement directly with Eurekos or a non-disclosure agreement approved by Eurekos. The Customer shall be liable for any misappropriation or disclosure of Confidential Information by such third party in breach of these consulting General Terms and any non-disclosure agreement.
Upon termination of the Agreement, for whatever reason, the Parties shall im-mediately return all documents or other materials, which have been received from the other party (including but not limited to source material), except ma-terials that in accordance with statutory requirements must be maintained for archiving purposes.
Eurekos shall not in any way be restrict-ed from using any general and specific knowledge and knowhow obtained from Customer. However, such use shall not misappropriate Customer’s intellectual property rights or confidential infor-mation.
Eurekos may assign its rights under this Agreement wholly or partly to a third party or entrust the performance of its obligations or parts hereof to subcon-tractors. Eurekos’ use of subcontractors does not release Eurekos from its obli-gations vis-à-vis the Customer.
The Customer may not give away, rent, lease or sell the Platform, or assignor otherwise transfer its rights under this Agreement to any third party except with the express written consent of Eurekos.
The Customer may assign the Agree-ment without any consent from Eurekos within the Customer owned group of companies including e.g. Parent compa-ny and affiliates as well as in the case of corporate arrangement. In such case, the Customer shall notify Eurekos with-out delay.
19. Disputes, Choice of Law and Venue
The Agreement shall be governed by, and exclusively construed in accordance with, the laws of Denmark, not consider-ing its provisions that may lead to the application of any other substantial law than Danish law.
Should any disagreement arise between the Parties in connection with the Agreement, the Parties shall seek to ini-tiate negotiations for the purpose of solving the dispute with a positive, co-operative and responsible attitude. If necessary, efforts shall be made to esca-late such negotiations to a higher level within the Parties’ organizations.
If the Parties cannot reach an agreement through negotiation within 5 working days, either party may request that the dispute is resolved pursuant to the rules of Danish arbitration.
The place of arbitration is Copenhagen, Denmark, and the language of the arbi-tration is the English language.
The arbitration tribunal is appointed by the Danish institute of arbitration in ac-cordance with the “rules on simplified arbitration of the Danish institute of ar-bitration”. The arbitrator is appointed by the Danish institute of arbitration.
If you have questions or comments to our General Terms and Conditions please contact us at firstname.lastname@example.org
This is version is last updated July 2020
Eurekos Systems ApS
Appendix A – Support levels when escalated to Eurekos
|The whole or major parts of the solution are inaccessible to the users||Max 2 hours before troubleshooting and remedying must be initiated.|
|Faults which prevent usage of essential functions of the solution.||Max 4 hours before troubleshooting and remedying must be initiated. Troubleshooting and remedying is carried out in Normal Business Hours (basic support) until repaired.|
|Faults that prevent usage of less important functions||Max 8 hours before troubleshooting and remedying must be initiated. Troubleshooting and remedying is carried out in Normal Business Hours (basic support) until repaired.|
|Other faults||Max 16 hours before troubleshooting and reme-dying must be initiated. Troubleshooting and remedying is carried out in normal business hours (basic support) until re-paired. These faults may be fixed and released as a combined patch/release at a later stage at the discretion of Eurekos.|