Service License Agreement and General License Terms

Service License Agreement

SECTION 1: PARTIES

This Service License Agreement (the ”SLA”) sets out the terms for accessing and using certain software as a service (SaaS) provided by WhistleSystem ApS for the purpose of Customer’s internal management of misconducts (the “WhistleSystem”). The Agreement is made by and between:

WhistleSystem ApS hereby as “Supplier”
VAT no. 41576561
Address: Roholmsvej 12A, 2620 Albertslund

and

The organization accepting this agreement.
hereby as “Customer”

(Supplier and the Customer each a ”Party” and together the ”Parties”)

SECTION 2: EFFECTIVE DATE

(DATE OF ACCEPT) The SLA shall remain in effect until terminated by either Party pursuant to clause 9 of the General License Terms (“License Period”).

SECTION 3: FEES

The fees shall be paid according to Section 4 of the General License Terms and include a start-up fee (one-off payment) and a service license fee (annual report fee) as following:

3.1 Set-up fee: According to written offer.
The set-up fee covers the set-up of the number of subscriptions according to the written offer.

3.2 Subscription fee: According to written offer.
The subscription fee covers the subscription fee of the number of subscriptions according to the written offer.

3.3 Payment terms:
(14) days after the invoice date, unless otherwise listed in the written offer. Invoices are sent by mail or email to the invoice e-mail from the ordering form. See section 5 below.

SECTION 4: SERVICE

The Agreement covers the Customer’s license to use the WhistleSystem as a Service (the “Service”). The Service consists in an online platform, developed for Customer’s internal use that allows Customer’s employees to anonymously report misconducts. It also includes access to an administrator portal that where the administrators can read and reply to the filed reports.

SECTION 5: LICENSE PERIOD

By entering into the Agreement, the Customer subscribes for the agreed Services for one (1) year at a time calculated from the date of subscription (the “License Period”). If the Customer does not terminate the Agreement prior to the commencement of a new License Period, the Agreement will continue to be in force for a new License Period. The Customer can terminate the Agreement at any time by providing the Supplier with a written notice of termination of three (3) months to the end of a month. See section 9 of the General License Terms.

SECTION 6: CONTACT PERSON
On the Effective Date, the Customer has appointed the following Contact Person (see clause 3 of the General License Terms). The contact person is stated in the ordering form.

SECTION 7: AGREEMENT
The Agreement includes the Service License Agreement, the General License Terms, the Data Processing Agreement, and the written offer sent by e-mail.

General License Terms

1. THE WHISTLESYSTEM

1.1 The WhistleSystem is made available as Software as a Service (SaaS) in the standard version applicable at any time and configured to the Customer’s needs upon agreement with the Customer.

1.2 Supplier makes the necessary software available for the continuous operation of the WhistleSystem and, to the extent specified in section 2 below, oversees and handles the operation remedial actions, backup, hotline, maintenance, upgrading and updating of the WhistleSystem.

1.3 The Customer and its licensed users must use the WhistleSystem in accordance with the Supplier’s instructions, user manuals (if applicable) and the Agreement.

2. OPERATION, MAINTENANCE AND REMEDIAL ACTIONS

2.1 The Supplier must provide the Service specified in the Agreement in due time, and in a quality, to an extent and in a way, that is in accordance with the Agreement and normal good practice recognized within Supplier’s line of business.

2.2 Supplier undertakes, through a thirdparty operator, the daily operations and supervision of the WhistleSystem and arranges for the ongoing backup etc. Supplier, in its sole discretion, may have the operator replaced at any time and for no specified reason.

2.3 Supplier is not liable for any interruptions in operation that may occur in the transmission of data between Supplier’s hosting provider and the Customer, its internet domain(s) or licensed users, unless such interruptions are caused by errors in the WhistleSystem.

2.4 Supplier offers hotline support in the primary operation period (Monday to Friday from 8:30 – 16:00 (CET), except Danish public holidays) by email to answer and solve urgent user related questions and problems. For support outside of the working hours a response time will be calculated according to the priority level of each case as defined by Supplier. All support response times are calculated based on working hours.

2.5 Subject to clause 2.6 below, Critical errors such as errors that involve unavailability of the WhistleSystem or very limited availability shall be remedied without undue delay. Noncritical errors shall be remedied within a reasonable period after observation and logging with Supplier thereof. Supplier must remedy identified errors with respect to the WhistleSystem.

2.6 If errors in third party software are observed, Supplier is only obligated to inform the manufacturer of the error, encouraging the manufacturer to remedy the defective software within a reasonable period. In the event of critical errors or errors that significantly reduce the use of the WhistleSystem for the Customer, Supplier is obligated to use reasonable best efforts to create a temporary “work around”.

3. ADMINISTRATION

3.1 The Customer’s Contact person and administration of license rights

3.1.1 The Customer shall appoint a contact person (the “Customer’s Contact Person”) who shall act as contact person towards Supplier and shall handle the overall administration of the Customer’s license, see Service License Agreement.

3.1.2 The Customer assumes the full liability and risk of planning the user administration expediently and in such a way that usernames and passwords cannot be misused to obtain unauthorised access to the WhistleSystem

3.1.3 The Customer’s Contact person may be replaced by notifying Supplier in writing of the person who is to take over the duties as the Customer’s Contact person and the date of replacement.

4. FEES, PAYMENT TERMS AND PRICE ADJUSTMENTS

4.1 Fees

4.1.1 As fee for the right to access and use the WhistleSystem and as fee for Supplier’s overseeing and handling of the continued operations, backup and hotline, maintenance and development of the WhistleSystem, the Customer shall pay a start-up fee (one-off payment) and an annual subscription fee, see the Service License Agreement. Both start-up fee and annual subscription fee are paid in advance upon the Customer’s subscription to the Service. The annual subscription fee shall be also paid further upon start of every new License Period.

4.1.2 Fees and prices are set out in the Service License Agreement. The annual subscription fee might be subject to annual indexation according to the “Producer price Index for Services” as published by Statistics Denmark.

4.1.3 All amounts specified in the Agreement are exclusive of VAT.

4.2 PAYMENT TERMS

4.2.1 Supplier’s invoices are due for payment upon receipt, the last due payment date being thirty (30) days after the invoice date. If an invoice has not been settled for a period of more than thirty (30) days after the invoice date, default interest will be added per the provisions of the Danish Interest Act.

5. PERSONAL DATA

5.1 Supplier does not collect, process, or store any sensitive personal data on behalf of the Customer and/or its Users. Supplier keeps Customer’s contact person’s information, necessary for Supplier’s administration of the relationship with Customer and execution of the Agreement.

5.2 Supplier agrees to comply with the General Data Protection Regulation (EU Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”)) and, upon Customer’s request, enter into a Data Processing Agreement, to be agreed and signed separately by the Parties.

5.3 In any case, Supplier is entitled to extract and store the Customer’s data depersonalised (anonymised) for statistical analysis as part of the ongoing improvement and further development of the WhistleSystem.

5.4 Supplier has made such reasonable technical and organisational arrangements deemed necessary to guarantee that any data uploaded in the databases of the WhistleSystem (i) is not accidentally or unlawfully destroyed, lost or impaired, (ii) is not communicated to any third parties, (iii) is not wrongly processed and (iv) is not otherwise processed by Supplier in conflict with the GDPR or the Danish Data Protection Act (in Danish: “Databeskyttelsesloven”).

6. WARRANTIES

6.1 Supplier warrants to the Customer that the WhistleSystem in essential will work according to its specifications and the Agreement.

6.2 Supplier warrants to the Customer that Supplier holds all permits, licenses, approvals etc., required for Supplier to sustain operation and maintenance of the WhistleSystem in accordance with the Agreement.

6.3 Customer warrants to Supplier that the Customer does not use the WhistleSystem for collection, registration, storage, processing or manipulation of data in violation of any applicable legislation, including that the Customer has obtained all required permits from public authorities etc. with respect to the implied collection, storage and use etc. of data.

7. RIGHTS OF OWNERSHIP AND USE

7.1 Within the scope of the Agreement, Customer acquires a limited, non-exclusive, non-transferable right to access and use the WhistleSystem and any related Service provided by the Supplier.

7.2 Supplier has and will maintain the full, undivided, and unrestricted rights of ownership and/or use of all aspects of the WhistleSystem. This also applies to the user manuals, training material and other tangible and intangible assets and knowhow which Supplier has developed, or which Supplier subsequently may (perhaps in cooperation with the Customer) develop for the Customer’s use of the WhistleSystem.

7.3 Customer has and will maintain the full, undivided and unrestricted rights to all data collected by the WhistleSystem in the License Period.

7.4 Upon termination of the Agreement, each Party is obligated, upon request from the other Party, to hand over any material which is the property of the other Party and in the possession of the first mentioned Party. Such request must be made in writing no later than six (6) months after the termination or expiry date of the Agreement.

8. CONFIDENTIALITY

8.1 Each Party is obligated to observe unconditional secrecy with respect to any information exchanged between the Parties in connection to the Agreement (“Confidential Information”), including but not limited to information about the Customer’s users and information about passwords and user IDs used to control access to the WhistleSystem. The information about the Customer’s users must only be used if needed and for the warranted handling of Supplier’s administrative obligations with respect to the WhistleSystem.

8.2 Supplier is obligated to treat data which is uploaded into the WhistleSystem by the Customer as confidential information which may not be copied, reproduced or released, in full or in part, to any third party without the written consent of the Customer. Supplier is obligated to ensure that Supplier’s employees and subcontractors having access to the WhistleSystem are subject to the same confidentiality.

8.3 Subject to the clauses 7.4 and 8.4, confidential information made available under the Agreement and copies thereof must be deleted or returned at the earlier of either:

8.3.1 six (6) months after the Agreement is terminated; or

8.3.2 when the Party owning the relevant confidential information makes such request in writing.

8.4 Section 8 shall survive to the termination of the Agreement and shall remain in effect, for a period of two (2) years after termination of the Agreement or until either Party still in possession of the other Party’s Confidential Information, whichever the longest.

9. EFFECTIVE DATE AND TERMINATION

9.1 The Effective Date of the Agreement is the date specified in the Service License Agreement.

9.2 The Customer subscribes for the agreed Service (see the Service License Agreement) for the initial term as specified in the Service License Agreement (initial “License Period”). If the Customer does not terminate the Agreement prior to the commencement of a new License Period, the Agreement will continue to be in force for a new License Period of subsequent twelve (12) months each time.

9.3 The Agreement can be terminated by either Party by giving to the other Party a three (3) month’s written notice to the end of any calendar month.

9.4 Supplier’s Service are not based on a monthly subscription so no refund will be issued unless Supplier terminates the Agreement without a cause. In this case Supplier will refund Customer proportionally to the time left on the current License Period. It will not include start-up fee.

9.5 There will be no refund if the Agreement is terminated by the Supplier due to the Customer’s material breach of the Agreement.

9.6 If the Agreement is terminated by the Customer, the Customer will not be reimbursed for any prepaid fees or payments made to the Supplier prior to the Customer’s termination of the Agreement, unless the termination is due to a Supplier’s material breach of the Agreement in which case the proportional refund mentioned in 9.4 applies.

9.7 With effect from the date of termination, all licenses shall terminate and the Customer’s right to use the WhistleSystem will lapse.

10. FORCE MAJEURE

10.1 Neither Party is liable for any delay or defects because of circumstances beyond the reasonable control of the concerned Party (force majeure), including in the event of mobilisation, war, natural disasters, strikes/lockouts, restrictions with respect to use of power and/or communication lines, including power blackout and breakdown of communication lines, which the Party could not, within reason, have foreseen, avoided or overcome. In the event of force majeure, the Parties’ obligations are suspended as long the event is reasonably deemed to continue. Force majeure may only be claimed, if the concerned Party has notified the other Party thereof no later than ten (10) days after the event of force majeure having occurred.

11. COMPLAINTS, BREACH AND COMPENSATION, LIMITATION OF LIABILITY

11.1 If a Party breaches its obligations under the Agreement, the other Party is, by registered mail or email is entitled to order the Party in breach to remedy the breach within a period of thirty (30) days as from the time of receipt of the request.

11.1.1 If the Party in breach does not comply with the request and if the breach communicated was deemed to be a material breach, the other Party is entitled to terminate the Agreement without further notice.

11.1.2 If the Customer’s payments are suspended, if either Party enters into negotiations for voluntary arrangements with creditors or compulsory arrangement with creditors or apply for reconstruction or is administered in bankruptcy, the Agreement may notwithstanding this clause 11.1 be terminated immediately by the other Party without prior notice, unless otherwise dictated by mandatory law.

12. LIABILITY FOR VIOLATION OF THIRD-PARTY RIGHTS

12.1 The Supplier shall indemnify, defend, and hold Customer harmless against any claims, actions, damages, losses, costs and expenditures, including but not limited to attorneys’ fees and costs, incurred by Customer, its affiliates, any of its customers, subcontractors or contract manufacturers as a result of any infringement or alleged infringement of any third party patents, copyrights, trademarks, registered designs or other intellectual property rights arising out of or relating to Supplier’s WhistleSystem. If legal proceedings are initiated against Supplier in which it is claimed that such violation of third-party rights exists, Supplier shall inform the Customer thereof immediately. If a decision is made with respect to any third-party claim, Supplier may choose to either (i) acquire the rights necessary for the continued lawful use of the WhistleSystem, or (ii) remedy the violation by changing or replacing the WhistleSystem or parts thereof with a new or modified solution, which essentially functions as the WhistleSystem, or (iii) terminate the Agreement against a proportionate refund (as indicated in clause 9.4). In such case, the Customer cannot make additional claims because of the termination or the violation.

12.2 The remedies made available to the customer in this clause 12 are the sole and exclusive remedies which are available to the Customer if the WhistleSystem if violating any third-party intellectual property rights.

13. LIMITATIONS TO THE LIABILITY OF SUPPLIER

13.1 Notwithstanding the provisions in the clauses 11.2 and 12.1, Supplier’s obligation to compensate through damages and/or proportionate reduction of the annual subscription fee or other fees is subject to the following limitations:

13.1.1 Supplier is at no time liable for and bears at no time any part of the risk for the quality of any usage or work results or output generated using the WhistleSystem based on reports submitted to the WhistleSystem by Customer and the Customer’s users.

13.1.2 Supplier is at no time obligated to compensate the Customer for any indirect or consequential loss, including but not limited to loss of expected earnings, loss of data, expenses foe remedial action of damage to or errors in data or any loss because of covering purchases made.

13.1.3 The maximum compensation which Supplier may be ordered to pay to the Customer under the Agreement cannot exceed five times (5x) the annual subscription fee paid by Customer in the License Period where the damage has occurred.

13.2 Any disregard of the agreed limitations of liability is subject to the general rules of Danish law.

13.3 The limitations of liability contained herein shall not apply in cases of intentional misconduct or gross negligence.

14. OTHER PROVISIONS

14.1 Venue and choice of law

14.1.1 The Agreement is governed by Danish law, excluding its conflict of law provisions.

14.1.2 To the extent possible, the Parties must attempt to amicably resolve any dispute with respect to the application or interpretation of the Agreement through negotiations. Disputes, which cannot be amicably resolved by the Parties, must be brought before the ordinary courts of Denmark with the Copenhagen City Court as agreed venue with access to referral and appeal in accordance with the Danish Administration of Justice Act.

14.2 Unity and entirety of the Agreement

14.2.1 The General License Terms, Service License Agreement, Data Processing Agreement, and written offer form the complete Agreement between the Parties and shall replace all previous, oral and written, agreements between the Parties. In the event of inconsistency between these General License Terms and the terms in the Service License Agreement, the terms in the Service License Agreement take precedence over the General License Terms. It is an element of valid contract that the Service License Agreement prepared for the Agreement are signed by both Parties.

14.3 Assignment and subcontractors

14.3.1 Considering the nature of the Service acquired, described in clause 7.1, the Customer is not entitled to assign any rights and obligations under the Agreement to any third party without the prior written consent of Supplier.

14.3.2 Supplier is entitled to assign rights and obligations under the Agreement to any company or legal entity, which is affiliated with Supplier.

14.3.3 Further, Supplier is entitled to assign rights and obligations under the Agreement as part of a transfer of Supplier’s business activities, in part or in full, and agrees to inform Customer if that such transfer is made to a company or other legal entity not affiliated with Supplier.