General Terms and Conditions

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 ownership 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 Agreement”) and these General Terms.

Available means the Platform is available and operable for access and use by Customer and its Users over the Internet in conformity with the Specifications.

Confidential Information means any information 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 confidential.

Customer means the entity set out in the End Client SaaS Agreement.

Data means any data entered in the Platform by the users.

Documentation means all generally available documentation relating to the Platform, including all user manuals, operating manuals, and other instructions, specifications, documents, and materials, in any form or media, that describe any component, feature, requirement, or other aspect of the Platform, including any functionality, testing, operation, or use thereof.

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 8-20 CET / 2am – 2pm EST excluding weekends and public holidays.

Parties means the Customer and Eurekos collectively.

Platform means the Eurekos Learning Management Platform.

Service Error means any failure of the Platform to be Available or otherwise perform in accordance with this Agreement and the Specifications.

Service Fees means the fees charged by Eurekos.

Service Term a period of 12 months following the date of Customer signing the End Client SaaS Agreement. After the expiry of the 12 months period, the Service Term shall continue until the Agreement is terminated.

Specifications means the specifications for the Platform set forth in the End Client SaaS Agreement and, to the extent consistent with and not limiting of the foregoing, the Documentation.

User(s) means the individuals, designated by Customer, who will access and use the Platform.

1. Introduction
1.1 The following General Terms shall govern the Customer’s use of the Platform and other services provided by Eurekos or its sub-contractors. Unless a separate professional services agreement exists, these General Terms govern the provision of professional services. Deviations from these General Terms shall only apply to the extent they have been accepted by the Parties in writing as part of the End Client SaaS Agreement.

2. The Services
2.1 For the duration of the Service Term, Eurekos shall make the Platform available to the Customer. Eurekos may deliver Additional Services to the Customer according to separate agreements.

2.2 This Agreement grants to the Customer and its Affiliates, a time-limited, non-transferable, non-exclusive global license to use the Platform including any patches and associated documentation subject to the terms set forth herein.

2.3 The Customer’s use of the Platform is subject to the Customer’s timely and effective payment of Service Fees charged by Eurekos, including for the number of active users logged on the Platform in the preceding month.

2.4 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 Customer, amend, modify, make additions, deletions or changes to the Platform; or (iv) if the Customer permits non-authorized users to use the Platform.

2.5 Eurekos shall be entitled to amend and change the Platform for updates, patches, and technical reasons, without the Customers prior consent, provided that such amendments do not materially prevent the Customer from using the Platform as specified in this Agreement. A current description of the Platform and key functionality can be be requested by email to your account team or [email protected]. Notwithstanding, Eurekos may, at its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance the quality or delivery of Eurekos’ products or services to its customers or such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.

2.6 The Customer is aware and accepts that the Platform is “as is” without any guarantee 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 validation thereof.

2.7 The use of the Platform may require for the Customer’s IT-systems and communication capabilities to have certain minimum specifications, as set out by Eurekos in the end Client SaaS Agreement. The Customer is responsible for that such requirements are met by the Customer and will continue to be so during the term of the Agreement.

2.8 Eurekos always recommend using the latest version of browsers. Eurekos will run on most known browsers. 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 corrective action and should be performed before contacting Eurekos.

2.9 Eurekos may provide the Customer with information and notices about the Platform electronically, including via email, through the Platform, or through www.eurekos.com. Notice is given as of the date it is made available by Eurekos.

2.10 This Paragraph shall apply to content uploaded into the Platform by Customer (“Customer Content”). The Customer is aware and accepts that the Customer Content is “as is” without any guarantee or warranty for the correctness. Further, any use of the Customer Content by the Customer shall be at the Customer’s own risk. The entire risk associated with the accuracy of the Customer Content is assumed by the Customer. Eurekos does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Customer Content. Eurekos makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program contained in the Customer Content at the time it is uploaded into the Platform by Customer. Eurekos further expressly disclaims any warranty or representation to any third party who may operate or otherwise utilize the Platform.

3. Customer Obligations
3.1 The Customer shall:

• provide Eurekos 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 Eurekos with access to its IT-installations and the databases
• cooperate with Eurekos in any disaster recovery efforts, in accordance with Appendix B, to ensure continuity of services in the event the Platform is deemed inaccessible.

4. Availability
4.1 Eurekos intends that the Platform shall be available to the Customer 24 hours each day, 365 days a year.

4.2 The availability of the Platform shall be, at minimum 99% calculated monthly. In cases where the Platform experiences a “Disaster” as defined in Appendix B, Eurekos shall undertake disaster recovery efforts based on the RTO and RPO timelines specified in the same Appendix.

4.3 The Availability shall be calculated based on the following formula:

Availability = Actual Uptime / (Expected Uptime – Scheduled Downtime) * 100 %.

Where:

• “Actual Uptime” shall be calculated as the sum of time where the Platform was operable as reported by Eurekos.
• Expected Uptime shall be the number of hours in each month.
• Scheduled Downtime shall be any planned service windows as further set below.
  • Ordinary planned service windows: every 3rd Sunday of the month between 8am-12pm CET / 2am-6am EST.
  • Planned service windows 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.

4.4 Emergency situations, including but not limited to Force Majeure Incidents, may require maintenance work to be done outside the service windows and/or with shorter or no prior notice.

4.5 Eurekos shall not be liable – and any lack of availability shall not count against Actual Uptime – if due to any delay or failure due to breakdown in communication access or facilities or for a lack of internet access caused by the Customer’s own devices, internet providers, utilities and/or systems which integrate to Eurekos or other matters outside Eurekos’ control.

5. Backup and Stored Data
5.1 Eurekos uses sub-processors, to deliver the Platform. According to the standard data processing agreement provided by Eurekos customers will be informed if Eurekos replaces sub-processors.

5.2 In case no specified custom agreement is in place with a client regarding backups, Eurekos will, at minimum, retain daily incremental backups of the Platform, Data & Video for 1 week, and incremental weekly backups for 4 weeks.

5.3 Eurekos is obliged to perform reasonable attempts to restore Data lost or corrupted without undue delay, and free of charge, if Data loss or corruption is caused by Eurekos, its affiliates, or its suppliers or subcontractors. Data restore for reasons attributable to the Customer, such as e.g., accidental deletion by the Customer, will be considered an Additional Service if Eurekos must spend more than 2 hours and invoiced at EUR 150 per hour. In the case of a “Disaster” as defined in Appendix B, Eurekos shall prioritize data recovery in alignment with the Recovery Point Objective (RPO) outlined in Appendix B.

5.4 The Customer’s systems logs will be saved for 1 month. Statistical Data is kept and stored for 5 years after the user’s deletion. Logs and statistic older than the specified period will be deleted without prior notice. Eurekos ensures that Statistical Data does not contain any information relating to an identified or identifiable natural person (‘Personal data’).

6. Support & Service Levels
6.1 Eurekos shall provide maintenance and support services (collectively, “Support Services”) for the Platform in accordance with the provisions of this Section 6. The Support Services are included in the subscription to the Platform, and Eurekos shall not assess any additional fees, costs, or charges for such Support Services. This section set forth the terms for the service levels and support between the Parties of the Agreement.

6.2 Guidelines for use of the Platform are found via the online “Help” functionality provided with the Platform. For any additional help Eurekos support team can be reached by emailing [email protected].

6.3 The Customer makes the initial definition of the support level at the time of fault notification to Eurekos. The response time is determined by the initial severity level definition made by the Customer. During or after the troubleshooting and remedy work, Eurekos has the sole authority to redefine severity level. If the severity level is changed, Eurekos shall notify the Customer without delay.

6.4 The Customer shall provide 1st level support services regarding questions relating to login, including but not limited to matters relating to user access rights, roles, registrations, organizational aspects – and change, and the guidance of the users in the use of Eurekos in the Customer’s own organization.

6.5 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.

6.6 Support requests may only be submitted to Eurekos by Platform administrators who have a working understanding of the Platform.

6.7 Definition of support levels when escalated to Eurekos (following 1st and 2nd level support provided by the Customer) is enclosed as Appendix A. For issues related to major service disruptions or “Disasters” as defined in Appendix B, Eurekos shall follow the disaster recovery protocols and timelines as specified in that Appendix.

6.8 Matters pertaining to infrastructure are subject to 3rd level support from Eurekos service level response times for 3rd level support is based on time of reporting the issue to the hosting supplier (‘sub-processor’).

7. Updates and Releases
7.1 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 upon 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 environment. New releases may require changes to integrations etc.

8. User Account
8.1 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.

8.2 The Customer shall ensure that the Access Details are secured at the same level of standards as its other credentials. The Customer is liable for any misuse of the Platform. Furthermore, the Customer shall inform Eurekos immediately if the Customer suspect that any of the Customers Access Details or Accounts have been compromised. Eurekos reserves the right to suspend access to the Platform to any Account being used in a way that circumvents or breaches the General Terms. Upon suspending access to the Platform, Eurekos shall promptly notify the Customer of the suspended Account, and Eurekos’ reasons for suspending the account.

9. Compliance with Legislation
9.1 Each party shall comply with all relevant legislation applicable to its performance under this Agreement. Each party shall comply with all relevant legislation in its jurisdiction.

9.2 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 making 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.

9.3 If required to comply with applicable law, the Customer shall obtain the necessary consent from the users of the websites for which the Platform are applied by Costumer.

10. Data – Ownership and Security
10.1 As between Customer and Eurekos, Customer Content and Data entered in the Platform by Customer and Users shall belong exclusively to Customer. Eurekos shall use Data and Customer Content solely for the purpose of providing the Platform to Customer and Users in accordance with the terms of this Agreement.

10.2 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 processes see clause 5.

10.3 Eurekos owns the Platform, including all related intellectual property rights. Eurekos may make software components available, via app stores or other channels, as part of the Platform.

10.4 The General Terms are subject to latest version of Eurekos System ApS Data Processing Agreement which the Customer has received.

10.5 Infringement Indemnification. Eurekos shall indemnify, defend, and hold Customer harmless from any third-party claim (including but not limited to payment of reasonable attorney’s fees) alleging that the Product or any portion thereof as furnished under the Agreement infringes any copyright, patent, trade secret, or any other intellectual property rights of any third party. Customer shall indemnify, defend, and hold Eurekos harmless from any third-party claim (including but not limited to payment of reasonable attorney’s fees) alleging that any content Customer uploads into the Product, or any portion thereof infringes any copyright, patent, trade secret or any other intellectual property rights of any third party.

11. Service Fees and Payment Terms
11.1 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 usage of the Platform during such month, including the number of active users on the Platform. Invoices shall become due on the date of the invoice and shall become due and payable 14 calendar days from the date of the billing.

11.2 All prices are exclusive of any taxes, vat, fees, levies, or duties imposed by tax authorities.

11.3 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) is made.

11.4 The Customer shall not be entitled to off-set or omit due payments with a counterclaim.

12. Term and Termination
12.1 The Agreement becomes effective when signed by both Parties and runs until terminated by either party.

12.2 Unless otherwise agreed in writing and except for termination pursuant to Sections 12.3 or 12.4, 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 the Customer giving 90 days’ notice before the end of the month and by Eurekos giving 90 days’ notice.

12.3 If a party ceases to do business or otherwise terminates its business operations or becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against a party and is not dismissed within 30 days, the other party may terminate this Agreement upon giving 30 days’ notice of termination.

12.4 Eurekos shall have the right to terminate the Agreement for Customer’s breach of the Agreement (including failure of payment) if such breach is not cured within 30 days after receiving written notice from Eurekos of such breach. If Eurekos terminates for Customer’s breach, Eurekos shall be entitled to payment of all earned fees, up to the date of termination. In the event of a Claim, Customer shall have the right to terminate this Agreement effective upon notice to Eurekos. If Customer terminates this Agreement pursuant to this Section 12.4 Eurekos shall refund to Customer all fees prepaid by Customer for the Platform for the remainder of the Service Term.

13. Warranties
13.1 Eurekos warrants that:

(i) it has the right to enter into this Agreement and to grant to the Customer a license or sub-license to use the Platform as contemplated by this Agreement

(ii) the Platform is to the best of Eurekos’ knowledge free from viruses and other malicious code

(iii) the Platform will conform to and perform in accordance with the Specifications and all requirements of this Agreement, including the Availability provisions set forth in Section 4, and

(iv) all Specifications are and will be continually updated and maintained so that they continue to be, current, complete, and accurate so that they do and will continue to fully describe the Platform in all respects such that at no time will the Platform have any undocumented feature

13.2 Except for the expressed warranties set forth herein Eurekos and its suppliers disclaim all other warranties, promises or representations, expressed or implied, including the warranties of merchantability or fitness for any particular purpose, with respect to the Platform, any lost Data or documentation, software produced Data, any services or technical assistance or any other item delivered by Eurekos.

14. The Customer’s Remedies
14.1 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 exclusive choice of Eurekos, either to fix or replace the defective elements for the Platform. Defects shall not include any actions by third parties to compromise, crack, or otherwise breach the platform.

14.2 The Customer has no other remedies except if required by mandatory law in the customers jurisdiction.

14.3 In case the availability of the Platform does not meet the availability as set out in clause 4.2, the Customer shall be entitled to request a deduction from Eurekos’s next invoice calculated as follows:

14.4 In no event shall the total credited amount for one month payable pursuant to Section14.3 exceed 100 % of the monthly Service Fees.

14.5 Any unavailability caused by planned service windows as set out in Section 4.5 shall not be subject to deduction as described above in Section 14.3.

14.6 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.

15. Liabilities
15.1 Except with respect to liability arising from Eurekos’ breach of Section 10 (Data and Customer Content – Ownership and Security) or Section 17 (Confidentiality), 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 performance of the services, even if Eurekos or its officers, agents, employees, or suppliers have been advised of the possibility of such damages. Without prejudice to Eurekos’ obligations to restore Data as set out in Section 5.3, loss of Data and the cost of restoration thereof shall be considered indirect damages hereunder.

15.2 The Customer can only claim documented losses and costs reimbursed if these are a direct and foreseeable consequence of Eurekos’ material breach of the Agreement.

15.3 In no event shall the total, cumulative liability, including without limitation damages, proportional reductions, and indemnifications, of Eurekos and its suppliers exceed the higher of, 1) twelve months of Service Fees or 2) two hundred thousand dollars (USD 200,000).

16. Indemnification
16.1 If a third party makes a claim against the Customer that any part of the Platform og other services originating from Eurekos infringes, misappropriates, or otherwise violates any patent, copyright, or other intellectual property right (a “Claim”), Eurekos will defend the Customer against such claim and pay all costs, damages, and expenses – including reasonable attorney’s fees – finally awarded against the Customer by a court having jurisdiction over the matter; provided that:

(i) the Customer notifies Eurekos in writing no later than 2 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 authority, which in the reasonable opinion of Eurekos will be necessary to perform Eurekos’ obligations under this Section 16.1.

16.2 Notwithstanding the above, Eurekos shall have no liability under Section 16.1 for a Claim to extent such Claim result from

(i) any claim based on the combination of the Platform with products or services not provided by Eurekos

(ii) any use of the Platform not in accordance with this Agreement

(iii) any claim based on information or materials shared via the Platform by Client or a third party or

(iv) modification of the Platform by any person other than Eurekos.

16.3 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 provided that such modification or replacement will provide the Customer with a substantially equivalent result.

then:

a. Eurokos shall promptly notify Customer of the same

b. Eurekos shall promptly and at its own expense

x. Obtain for the Customer the right to continue the use of this part of the Platform, or

y. Replace or modify the Platform to make it non-infringing provided that such modification or replacement will provide the Customer with a substantially equivalent result.

16.4 If Eurekos reasonably determines that, with respect to a Claim none of the above options are available on a basis that Eurekos considers to be commercially reasonable, then Eurekos may – in whole or in part – terminate the Agreement and refund to the Customer the Service Fee paid in advance and unused by the Customer for the infringing 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 unresolved infringement

17. Confidentiality
17.1Each party (the “Receiving Party”) shall maintain confidentiality of the other party’s (the “Disclosing Party”) Confidential Information and shall not use such Confidential Information for any purpose other than performing its obligations under this Agreement. In particular, the Receiving Party shall keep this Agreement, and all other commercial, financial, technical information of the Disclosing Party disclosed to or otherwise learned by the Receiving Party, its employees, or advisors, in connection with this Agreement (whether disclosed orally, in documentary form, by demonstration or otherwise) confidential. As used in this Agreement, the term “Confidential Information” means this Agreement and all other commercial, financial, technical information of the Disclosing Party disclosed to or otherwise learned by the Receiving Party, its employees or advisors, in connection with this Agreement (whether disclosed orally, in documentary form, by demonstration or otherwise) confidential. In addition, Data and Customer Content constitute the Confidential Information of Customer.

17.2 If the Receiving Party wishes to provide access to Confidential Information of the Disclosing Party, including confidential material such as instruction books, training materials, flow charts, Data models and entity relationship (s) diagrams to a third party providing consultancy or any IT services to the Receiving Party, such disclosure is permitted, provided such third party prior to any disclosure has signed and executed either a non-disclosure agreement containing terms no less restrictive than those stated in this Section 17 and subject to the express, written approval of the Disclosing Party. The Receiving Party 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.

17.3 Upon termination of the Agreement, for whatever reason, the Parties shall at the election of the Disclosing Party promptly return to the Disclosing Party, or securely destroy, all Confidential Information received from the Disclosing Party, except materials that in accordance with statutory requirements must be maintained for archiving purposes, which materials are subject to the terms of this Section 17 for so long as they may remain in the Receiving Party’s possession.

17.4 Neither party shall not in any way be restricted from using any general and specific knowledge and knowhow obtained from the other party in connection with the performance of this Agreement. However, such use shall not misappropriate the other party’s intellectual property rights or Confidential Information.

18. Assignment
18.1 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 subcontractors. Eurekos’ use of subcontractors does not release Eurekos from its obligations vis-à-vis the Customer.

18.2 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, except as provided in Section 18.3.

18.3 The Customer may assign the Agreement without any consent from Eurekos: (i) within the Customer owned group of companies including e.g., Parent company and affiliates, and (ii) in the case of any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity), or a sale of all or substantially all of Customer’s business or assets relating to this Agreement to an unaffiliated third party. In such case, the Customer shall notify Eurekos without delay.

19. Disputes, Choice of Law and Venue
19.1 The Agreement shall be governed by, and exclusively construed in accordance with, the laws of Denmark, not considering its provisions that may lead to the application of any other substantial law than Danish law.

19.2 Should any disagreement arise between the Parties in connection with the Agreement, the Parties shall seek to initiate negotiations for the purpose of solving the dispute with a positive, cooperative, and responsible attitude. If necessary, efforts shall be made to escalate such negotiations to a higher level within the Parties’ organizations.

19.3 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.

19.4 The place of arbitration is Copenhagen, Denmark, and the language of the arbitration is the English language. Notwithstanding the above, the arbitration may be held remotely.

19.5 The arbitration tribunal is appointed by the Danish institute of arbitration in accordance with the “rules on simplified arbitration of the Danish institute of arbitration”. The arbitrator is appointed by the Danish institute of arbitration.

Appendix A – Support levels when escalated to Eurekos 

Appendix B – Support levels when escalated to Eurekos 

General Terms and Conditions 17. November 2023