TERMS AND CONDITIONS – PARTNER TERMS

1. Introduction

1.1
These TERMS AND CONDITIONS – PARTNER TERMS apply to the Whistleblower Software system (hereinafter the “System”) that Whistleblower Software ApS, Danish reg. no. 42045136, Inge Lehmanns Gade 10, 5., DK-8000 Aarhus C, Denmark (“Whistleblower Software”) provides to its partner customer (hereinafter the “Partner”).
1.2
The order confirmation together with any appendices and these TERMS AND CONDITIONS – PARTNER TERMS constitute the agreement (hereinafter the “Agreement”) between Whistleblower Software and the Partner. In case of any discrepancies between the order confirmation and these TERMS AND CONDITIONS – PARTNER TERMS, the terms of the order confirmation will take precedence.

2. About the system and usage of the Module

2.1
The System enables a whistleblower to report reprehensive conditions with the company (hereinafter the “Customer”). The System may be supplied to the Customer by the Partner by its usage of an administration module system made available to the Partner by Whistleblower Software (hereinafter the “Module”).
2.2
Whistleblower Software hereby grants the Partner the right to use the Module based on these terms and conditions. The right of usage to the Module enables the Partner to provide its Customers with the right of usage to the System.
2.3
The Partner must ensure that the Customer accepts the TERMS AND CONDITIONS – CUSTOMER TERMS pertaining to the System prior to the Customers use of the System or refer the Customer to enter into an agreement directly with Whistleblower Software. The Customer may be set-up either to pay Whistleblower Software directly, or to have Whistleblower Software invoice the Partner for its Customers usage of the System (reseller terms). In the event the Partner wishes to provide its Customer right of usage to the System on reseller terms, the Partner is free to set its own prices for its Customers usage of the System.
2.4
The Partner’s right of usage to the Module is non-exclusive and limited to the Term, cf. clause 16.1.
2.5
The Partner is entitled to use the System to administer its own whistleblower scheme on the terms of TERMS AND CONDITIONS – CUSTOMER TERMS.

3. Technical Requirements

3.1
The Module is available online and access to the Module may be established by usage of most available browsers.

4. Limitation on the Partner's usage

4.1
All rights granted under these terms and conditions are non-exclusive and non-transferable. Accordingly, if not expressly permitted in these terms and conditions, the Partner may not distribute, sublicense, rent, lease, lend, resell or transfer its right of usage of the Module including its right to supply access to the System, in whole or in part.
4.2
The Partner shall, at all times, act with due care and lawfully towards third parties and Customers, particularly by respecting the intellectual property rights and other rights of Whistleblower Software and third parties and the privacy of third parties, by refraining from disseminating information in a manner that is contrary to the law, from granting unauthorized access to the Module or the System.
4.3
The Partner may use the Module only in accordance with these terms and conditions, and the Partner may particularly not reverse engineer, decompile or disassemble the Module or the System, or attempt to do so, work around any technical limitations in the Module or System or against restrictions in Module or System documentation.
4.4
Whistleblower Software reserves its rights to verify eligibility with clause 4 at any time and suspend the Partner's access to the Module and the System if the eligibility requirements are not met. Whistleblower Software is further entitled to suspend the Partner’s access to the Module and the System if the Partner fails to pay its subscription fee after first reminder of late payment or if the Partner uses its rights to provide access to the System in an unauthorised or unlawful way.

5. Changes and updates

5.1
Whistleblower Software may change the content or scope of the Module and/or the System. If Whistleblower Software wishes to implement major changes that may result in a change in Customers’ or the Partner’s current procedures, Whistleblower Software shall inform about the matter as soon as possible and no later than one (1) month prior to the implementation of such changes. Regardless of clause 16.2, the Partner is entitled to terminate the subscription with effect from the end of the notice period of one (1) month and to receive a proportionate share of the paid license fee for the Term. Where a Customer, invoiced by the Partner wishes to terminate the subscription, the Partner shall be entitled to receive a proportionate share of the paid license fee for the Term related to the Customer in question.
5.2
The Partner may forward wishes to change in the scope or content of the Module and/or the System. Whistleblower Software is, however, not obliged to change the System to accommodate the wishes of the Partner.

6. Prices and Payments

6.1
The Partner shall pay the agreed prices for the Module set out in the price list of Whistleblower Software or a prevailing contract document. The prices are adjusted annually in accordance with applicable prices as set out in the price list of Whistleblower Software. The adjustment of prices may, however, not exceed 10 per cent.
6.2
The payment is made for a Term, cf. clause 16.1. The payment for the Module will be invoiced annually prior to the commencement of a Term, however, the first Term is invoiced upon the acceptance of the Agreement.
6.3
Payments shall be made no later than 14 days following the Partner’s receipt of invoice from Whistleblower Software. In case of late payment, Whistleblower Software charges interest for default on the amount owing at the time in question, at a rate of 1.5 (one and a half) per cent per month from the due date. Interest will be calculated each month on the outstanding balance due.

7. Support

7.1
Whistleblower Software shall during the Term cf. clause 16.1, provide technical support pertaining to the Module. The support may be supplied by e-mail or telephone within Whistleblower Software’s ordinary working hours. Requests for support shall be handled within reasonable time. However, Whistleblower Software does not warrant any particular response time. Any specific agreement on response time must be made in writing and shall be annexed as an appendix to the Agreement.

8. Service Level Agreement

8.1
Whistleblower Software endeavours that the Module and the System is available all times. However, the Module and the System may be unavailable due to preventive, corrective or adaptive maintenance or other forms of service announced by Whistleblower Software in advance and due to other circumstances beyond Whistleblower Software's control. Whistleblower Software will endeavor to notify the Partner in advance about any circumstances that may affect the availability of the System and/or the Module.

9. Back-up

9.1
Whistleblower Software makes backup of the Partner’s data in its possession. The backup shall be retained with due care and in accordance with the prevailing organizational and technical security of Whistleblower Software, and Whistleblower Software shall keep the backup copy at least three months. All copies of the Partner’s data shall be deleted no later than three months after the expiry of the Term, cf. clause 17.

10. Intellectual Property Rights

10.1
The Partner’s right of usage of the Module and the System, including documents, images, tools, videos and guides contained in the System, is limited to the Term, cf. clause 16.1, in accordance with clause 2. Customers right of usage to the System, including documents, images, tools, videos and guides contained in the System is limited in accordance with the TERMS AND CONDITIONS – CUSTOMER TERMS pertaining to the System. Whistleblower Software retains all other rights to the System and the Module including documents, images, tools, videos and guides contained in the Module and the System including ownership rights and copyrights, cf. clause 14..
10.2
The Partner's data is the property of the Partner, and Whistleblower Software is not permitted to copy or delete the Partner's data without instructions from the Partner, cf. however clause 9 and 17 on deletion and backup. Whistleblower Software is, however, entitled to use anonymised data including, but not limited to, amount of cases, case categories and amount of users in the system, for statistical or research purposes in order to enhance the performance of the System.
10.3
The Partner represents that it has legal rights to all its data and all materials uploaded by the Partner on the Module and/or the System (as the case may be) and that no Partner data infringes rights of third parties.

11. Personal data

11.1
Whistleblower Software processes personal data on behalf of the Partner and the Customer, and the Parties have agreed to a data processing agreement pertaining to Whistleblower Software’s processing of personal data on behalf of the Partner and the Customer. The parties maintain that the Whistleblower Software is the “processor” and the Partner is the “controller” for the processing of personal data relating to its own whistleblower scheme and the “processer” for the processing of personal data relating to its Customers’ whistleblower scheme within the meaning of the personal data legislation.
11.2
Whistleblower Software is entitled to payments on a time and material basis for its assistance to the Partner and its Customers pursuant to the data processing agreement, including but not limit to its assistance to handling of the rights of data subjects, notifying the Data Protection Authority and the data subjects, conduct a data privacy impact assessment, audit, etc. provided that such assistance has been requested by the Partner.

12. Confidentiality

12.1
Whistleblower Software must ensure that all information received from the Partner is kept secret.

13. Guarantee

13.1
The function of the Module and the System is described in clause 2. Whistleblower Software does not guarantee that the System and/or the Module is free of errors and functions without interruption. However, Whistleblower Software shall continuously maintain the System and the Module and make its best efforts to fix errors in the Module and the System within reasonable time.
13.2
Guarantees, representations and warranties are binding on Whistleblower Software only if agreed to specifically in writing.

14. Third party rights

14.1
All intellectual property rights to the System and the Module including documents, images, tools, videos and guides contained in the System and the Module are held exclusively by Whistleblower Software, its licensors or its suppliers.
14.2
Whistleblower Software indemnifies the Partner against any claim of a third party based on the allegation that Module or the System infringes third party rights. In the event that the Partner is met with claims pertaining to its use of the System and/or the Module, the Partner shall immediately inform Whistleblower Software in writing about the existence and content of the claim and leave the settlement of the claim, including any arrangements made in this regard, entirely to Whistleblower Software.
14.3
The Partner shall collaborate with Whistleblower Software in the defence and any related settlement negotiations by providing Whistleblower Software with appropriate information and any assistance required for said defence or settlement. The Partner is entitled to reimbursement of legal cost in this context. In the event of an infringement claim, Whistleblower Software shall be entitled either to procure the Customers and/or the Partner the right to continued use of the Module or the System (as the case may be), bring the infringement to an end by modifying or replacing the System and/or the Module with other software, websites, data files, designs, documentation etc. which has essentially the same functionality as the material in contention, or terminate the Partner's right of usage to the Module with immediate effect and reimbursing the Partner its paid subscription fee deducting a reasonable amount for the value of the Partner's use of the Module. The Partner has no further rights to compensation pertaining to infringement of third-party rights.

15. Liability

15.1
Whistleblower Software’s liability is limited to the Partner’s direct losses. Whistleblower Software’s liability for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption is excluded. Whistleblower Software’s liability for destruction or loss of data is likewise excluded.
15.2
Whistleblower Software’s liability is limited to an amount equal to the subscription fee paid for one year (excluding VAT). For there to be any right to compensation, the Partner must always report the loss to Whistleblower Software in writing as soon as possible and no later than 3 months after the loss has occurred. The exclusions and limitations referred to in clause 15.1 and 15.2 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of Whistleblower Software.
15.3
The “inter partes” relationship between the Partner and its Customers pertaining to whistleblower scheme set-up by the Partner is of no relevance to Whistleblower Software.
15.4
The limits of Whistleblower Software’s liability in this clause 15 shall apply to the fullest extent permitted by applicable law.

16. Term and termination

16.1
The subscription term is twelve (12) months (hereinafter the “Term”), calculated from the date of the Partners acceptance of the Agreement. The Term will automatically be renewed with a new Term every year, unless terminated in advance by either the Partner or Whistleblower Software pursuant clause 16.2.
16.2
The Partner may terminate its subscription and right of usage to the Module with a notice period of one month to the end of a Term, cf. clause 16.1. Whistleblower Software may terminate the Partner’s subscription and right of usage to the Module with a notice of 6 months to the end of a Term. Notice of termination must be given in writing. A party is further entitled to terminate the Agreement, if the other party is in material breach (in Danish ”væsentlig misligholdelse”) of its obligation under these terms and conditions, unless such material breach has been remedied by the other party within a period of no less than 30 days. Lack of payment is considered a material breach.

17. Expiry

17.1
The Partner is entitled to receive its data on an accessible media format on expiry of the Term. Further, Whistleblower Software is obliged to delete the Partner's data, including personal data, no later than three (3) months following the expiry of the Term. Whistleblower Software is entitled to payment for its services rendered to the Partner in connection with the expiry of the Partner's usage of the Module. Whistleblower Software is, however, entitled to use anonymised data including, but not limited to, amount of cases, case categories and amount of users in system, for statistical or research purposes in order to enhance the performance of the System, cf. clause 10.2.
17.2
The expiry of the Partner’s right of usage to the Module shall have no effect on the Partner’s Customers right of usage to the System which shall continue subject to the terms and conditions set out in the subscription agreement between the Partner’s Customer and Whistleblower Software. However, any agreements that the Customer shall be invoiced by the Partner shall cease on the expiry date and future invoices shall be sent directly from Whistleblower Software to the Customers.

18. Governing law and disputes

18.1
The Agreement is governed by Danish law.
18.2
Any dispute arising out of or in connection with the Agreement, including any disputes regarding the existence, validity or termination thereof, shall be settled by the Danish courts. The venue shall be the venue of Whistleblower Software.
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