Terms and Conditions

General

The following terms and conditions (“Terms and Conditions”) provide for terms that are common to the Agreement for SKILLHABIT Services (collectively, the “Agreement”), including all Schedules, if any, and Orders. In the event of a conflict between these Terms and Conditions, any Schedule, or any Order, the main Agreement will control. In the event of a conflict between any Schedule and any Order, the main Agreement will control, unless the Order expressly states that the Order shall supersede the applicable provision of the Schedule. For the avoidance of doubt, no purchase order, or similar document, issued by the Client to TicTac, outside of an Order contemplated hereunder, which contains any inconsistent terms with the main Agreement will be accepted by TicTac, and the same are hereby expressly rejected.

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1. Definitions

Unless otherwise defined herein, the capitalized terms used herein shall have the following meaning:

1.1     “Registered User” means an End User who has an active account on the Software Services, regardless of whether they log in during an applicable billing period (described in Section 5.2) or not.;

1.2     “Client” means (unless expressly stated to the contrary in any applicable Order) the customer contracting entity identified in any Order issued hereunder that is receiving Services from TicTac hereunder; provided, however, that such term shall also be read to include all parents, subsidiaries and corporate affiliates, and, if agreed in the Order, customers, of the contracting party who shall, at the Client’s election, also be entitled to receive Services hereunder and issue Orders hereunder;

1.3     “Client Software” means the software and any other Materials owned or used by the Client to access the Software Services;

1.4     “Derivative Works” means any suggestions, contributions, enhancements, improvements, additions, modifications, or statutorily defined derivative works to the referenced software or other Materials;

1.5     “Documentation” means the user documentation and any other operating, training, and reference manuals relating to the use of the Services, as supplied by TicTac to the Client, as well as any Derivative Works thereof;

1.6     “Effective Date” means the date on which the Agreement commences, as indicated in the first Order;

1.7     “End User” means all of the Client’s employees and individual third parties who are authorized by the Client to use the Software Services;

1.8     “SKILLHABIT Platform” means the Internet-based SKILLHABIT Platform products and related Services provided by TicTac, that are more particularly described on an Order and that are accessible to the Client and its End Users via a Web browser through the Internet for their use of the Software Services;

1.9     “Initial Term” means the first term of the Agreement, as indicated in the first Order;

1.10    “Intellectual Property Rights” means any and all rights to exclude, existing from time to time in any jurisdiction, under patent law, copyright law, moral rights law, trade-secret law, semiconductor chip protection law, trademark law, unfair competition law, or other similar rights;

1.11    “Marks” means service marks, trademarks, trade names, logos, and any modifications to the foregoing;

1.12    “Materials” means data, materials, pictures, documentation, audio, video, artistic works, writings, and other works of authorship;

1.13    “Party” means TicTac and the Client individually, and “Parties” means TicTac and the Client collectively;

1.14    “Personal Data” means any information relating to an identified or identifiable living individual, including information that can be linked, directly or indirectly, with a particular Data Subject;

1.15    “Services” means all services provided by TicTac under this Agreement including the Software Services, Additional Services, Support, and Professional Services;

1.16    “TicTac” means the TicTac Learn contracting entity identified in any Order issued hereunder that is responsible for providing the Services hereunder, even if such Services are ultimately provided by a TicTac Learn corporate affiliate.

1.17    “TicTac Servers” means the hardware platform or network system owned or operated by, or on behalf of, TicTac where the SKILLHABIT Platform resides and is accessed by TicTac customers via an internet connection to the servers using an approved Web browser;

2   Services

2.1     General. All Services will be provided to the Client according to these Terms and Conditions and one or more Schedules and Orders (collectively, the “Services”).

2.2     Software Services. TicTac will provide the Client, End Users and any other users authorized by the Client in accordance with the relevant Order (if any) with access to the SKILLHABIT Platform (“Software Services”) that is set forth in one or more Orders. During the Term, and subject to compliance with the Agreement, TicTac grants to the Client the worldwide, non-exclusive, non-transferable, non assignable (except as provided herein), and limited right and license to allow End Users to remotely access the SKILLHABIT Platform that is located on the TicTac Servers, in accordance with the terms of the Agreement. Use of the Software Services may be further limited by the terms and conditions contained in any applicable Schedule or Order.

2.3     Support. If purchased by the Client, TicTac will provide customer care and Support to the Client, as set forth in an Order and as further described on SKILLHABIT Description of Maintenance & Support Service including SLA. Other than Support, Professional Services (as defined in Section 3.4), and other services specifically contracted for by the Client, TicTac will have no obligation to provide customer support services to the Client under the Agreement.

2.4     Professional Services.

(a) TicTac will provide the consulting, implementation, training, integration, enhancement, configuration and other services (if any) that are identified on any Order (collectively, “Professional Services”). If the Client requests, TicTac may provide additional Professional Services to the Client pursuant to the terms of one or more written Statements of Work (each a “SOW”), which will either be attached to and become part of the Agreement or incorporated into an Order as part of the Agreement. Each SOW will include, at a minimum,

(i) a description of the Professional Services;

(ii) the estimated project completion dates;

(iii) the fees, costs, and expenses payable to TicTac;

(iv) the payment schedule; and

(v) a signature by each Party’s respective authorized representatives.

(b) In the event that the Parties agree that TicTac will provide certain Professional Services on-site, the Client will provide to TicTac copies of all applicable onsite safety policies and procedures, which will be acknowledged by TicTac in writing, prior to the commencement of any onsite Professional Services, and TicTac will agree, and will direct its personnel, to abide by the same.‍

(c)   The Client will provide to TicTac’s assigned representative written confirmation of receipt and acceptance of the Professional Services rendered upon completion of the project in accordance with the criteria established in the applicable SOW (including, if applicable, any testing and acceptance criteria). Upon completion of the project in accordance with such criteria, all Professional Services will be deemed delivered, and TicTac will not be obligated to deliver further Services thereunder.

(d)   In the event that any payment by the Client to TicTac is more than thirty (30) days past due (and the same is not reasonably in dispute) in connection with Professional Services, TicTac will have the option to cease providing any and all Services under the relevant SOW until such past due payment is received.

(e)   TicTac warrants that the Professional Services provided hereunder will be performed by competent personnel in a professional manner and in accordance with generally accepted industry practices (the “Professional Services Warranty”). The Client must notify TicTac promptly and, in any event, within ten (10) business days) of the discovery of any breach of the Professional Services Warranty. In the event of a breach by TicTac of the foregoing Professional Services Warranty, TicTac shall re-perform the relevant Professional Services, at TicTac ‘s expense, or, if TicTac will not or cannot do the same, then it shall promptly issue a refund for all affected Professional Services which have failed to meet the Professional Services Warranty. Except for the foregoing limited Professional Services Warranty, all other warranties, and representations, express or implied, with respect to Services provided pursuant to the Agreement (including the Professional Services), are limited by Section 8.

2.5     Additional Services. Through its use of the Services, the Client may have the ability to purchase: (i) online courses; (ii) customized educational products; (iii) customized software (“Customized Software”); and/or (iv)additional modules (collectively, the “Additional Services”). The delivery of and fees for the Additional Services will be as set forth in the applicable Order(s) or SOW(s). The Client must have an active subscription to the Software Services in order to access any Additional Services.

2.6     Sub-contractors. All Services will be provided to the Customer according to this Agreement and one or more Schedules, and Order Forms or SOWs issued hereunder. TicTac may from time to time, in its discretion, engage third parties to perform Services (“Sub-contractor”) provided that TicTac (a) remains primarily responsible for performance of its obligations under the Agreement; (b) be responsible and liable for the acts and omissions of each Subcontractor in the scope of its performing any Services to the same extent as if such acts or omissions were by TicTac or its employees; and (c) be responsible for all fees and expenses payable to any Subcontractor, including, if applicable, withholding of income taxes, and the payment and withholding of payroll taxes, unemployment insurance, workers’ compensation insurance payments, employer health tax, and disability benefits in any such event. For greater certainty, Sub-processors, as defined in the DPA, shall not be considered Subcontractors for the purposes of this Agreement.

2.7     Maintenance. The Client acknowledges that certain maintenance activities regarding the Software Services may be necessary or appropriate, from time to time, including bug fixes, software updates, feature updates, and the addition of new applications and new modules. In most instances, the SKILLHABIT infrastructure is designed to support updates by the TicTac engineering and support teams without the need to interrupt the Software Services. Where such maintenance activities are not reasonably anticipated to materially impact the Client’s use of the Software Services, TicTac will have no obligation to provide notice to the Client regarding such maintenance activities, although TicTac generally does so, in the ordinary course, at least  one (1) week in advance of the same. If TicTac reasonably determines that maintenance activities will require an unavailability or outage of the Software Services in excess of ten (10) consecutive minutes, then TicTac will give the Client reasonable advance written notice of the same. TicTac will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours.

3 Ownership rights

3.1     For TicTac. All title, ownership rights, and Intellectual Property Rights in and to the SKILLHABIT Platform and all TicTac Marks (and all Derivative Works and copies thereof) are and will remain owned by TicTac. The Client acknowledges that the SKILLHABIT Platform, in source code form, remains proprietary information of TicTac and that the source code is not licensed to the Client by this Agreement or any Schedule or Order and will not be provided or escrowed by TicTac. TicTac will also retain all Intellectual Property Rights in any Professional Services or Additional Services, unless the Parties agree that the same are intended to be transferred to the Client in connection with the performance of and payment therefor, as indicated in the applicable Order or SOW.

3.2     For the Client. All title, ownership rights, and Intellectual Property Rights in the Client data and any other Materials that the Client owns, and/or that the Client or its End Users uploads to the Software Services, will remain owned by the Client, or other third party(ies), as the case may be.

4 Fees and payment terms

4.1     Fees.

(a)  Fees payable under the Agreement shall be in the amounts and payable on the terms set forth on the applicable Schedule or Order, and as otherwise set forth in Section 5.2 below. Except as otherwise may be set forth in a Schedule or Order, all payments for fees shall be due within thirty (30) days from receipt by the Client of an invoice for the same and shall not be subject to any setoff, recoupment, counterclaim, deduction, debit or withholding, for any reason (other than any deduction or withholding of tax, as may be required by applicable law). All fees paid, and expenses reimbursed under this Agreement will be in the currency specified in the applicable Schedule or Order. Except as otherwise specified in the applicable Schedule or Order, payment must be done by wire transfer.

(b)  TicTac is entitled once a year from the beginning of the new calendar year to adjust contracted prices in line with general Swedish wage and rental increases as well as changes in exchange rates affecting the business. If the Client does not agree with this increase, either Party can choose to terminate the Agreement at the end of the Initial Term or the then-current Renewal Term, as applicable, by giving the notice required in Section 11.2 below.

4.2     Registered Users. Unless otherwise set forth in an Order, the fees for accessing the Software Services and any online courses are determined based on the number of Registered Users in any billing period; and Registered User limitations may vary across multiple service modules and offerings of TicTac, if applicable. Unless otherwise set forth in an Order, the billing periods for measuring Registered Users will be the one-month periods beginning on the Effective Date and on each one month anniversary of the Effective Date thereafter, continuing through the end of the then-current Term. Fees for additional Registered Users in excess of the authorized number of Registered Users set forth in the Order in each billing period (each, an “Extra User”) will be invoiced to the Client, in arrears, in the amount specified in the Order. TicTac will have no obligation to provide notice to the Client regarding its approach and possible exceedance of any Registered User thresholds in any given monthly period. For greater certainty, no change will be made to the Fees if the actual number of Registered Users is less than the authorized number of Registered Users set forth in the Order in any billing period. TicTac reserves the right, by notice and use of appropriate and reasonable measures, to verify the number of Registered Users during any active billing period, in order to determine the Client’s compliance with Registered User limitations, across one or more modules or offerings, and the Client will provide all reasonable assistance to TicTac in any exercise of such rights; provided, however, that the same shall be limited in scope and shall not interfere with the Client’s use of the Software Services or be unduly burdensome to the Client, in any fashion.

4.3     Late Payments. The Client shall reimburse TicTac for all costs incurred by TicTac in collecting any late payments or interest, including attorneys’ fees, in an amount not to exceed fifteen percent (15.0%) of the outstanding amount owed, court costs and collection agency fees. TicTac may, at its option, upon notice and a reasonable opportunity to cure, suspend the Services, in whole or in part, if TicTac does not receive all amounts which are due and owing, at not reasonably in dispute, under the Agreement when due; provided that it shall restore normal services promptly upon the clearance of any such disputed amounts.

4.4     Taxes. Unless otherwise required by applicable law, the fees and expenses due to TicTac as set forth in the Agreement shall be paid free and clear of any deduction or withholding on account of taxes. The Client shall be responsible for all sales, use, value-added, ad valorem or other taxes (including fees, tariffs, levies, duties or charges in the nature of a tax) imposed by any governmental entity upon the sale, use or receipt of the Software Services (other than taxes based solely on TicTac’s income). If and when TicTac has the legal obligation to collect such taxes, TicTac will invoice the Client for the amount of such taxes, and the Client will pay such amount, unless the Client provides TicTac with a valid tax exemption certificate authorized by the appropriate taxing authority. The Client will provide TicTac with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by TicTac to establish that such taxes have been paid. The Parties shall reasonably cooperate to more accurately determine each Party’s tax liability and to minimize such liability to the extent legally permissible.

5 The client’s obligations

5.1     Technical Requirements. Using the Software Services requires a modern web browser that supports cookies and JavaScript. Acquiring, installing, maintaining and operating equipment, any Client Software, and Internet access is solely the Client’s responsibility, except as otherwise expressly provided in an Order. TicTac neither represents nor warrants that the Software Services will be accessible through all web browser releases or all versions of tablets, smartphones, or other computing devices.

5.2     Use of Website and Services.

(a)  The Client shall not, and shall not knowingly permit others, in using the SKILLHABIT website, SKILLHABIT Platform or Software Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate or infringe the legal rights (such as rights of privacy, publicity and intellectual property) of others or TicTac, or interfere with another party’s use of the Software Services; (ii) publish, ship, distribute or disseminate any harmful, infringing, fraudulent, tortious, or unlawful material or information (including any unsolicited commercial communications); (iii) misrepresent, or in any other way falsely identify, the Client’s identity or affiliation, including through impersonation or altering any technical information in communications using the Software Services; (iv) knowingly transmit or upload any material through the Software Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing TicTac’s, or any other person’s or entity’s, network, computer system, or other equipment; (v) interfere with or disrupt the Software Services, networks or servers connected to the SKILLHABIT systems or violate the regulations, policies or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Software Services; (vi) attempt to gain unauthorized access to the Software Services, other SKILLHABIT customers’ computer systems or networks using the Software Services through any means; (vii) copy, modify or create derivative works or improvements of the Services or SKILLHABIT Platform; (viii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Software Services or SKILLHABIT Platform, in whole or in part; (ix) bypass or breach any security device or protection used by the Software Services or SKILLHABIT Software or access or use the Software Services or SKILLHABIT Platform other than through the use of then valid access credentials; (x) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other Intellectual Property Rights notices from any Services or SKILLHABIT Platform; or (xi) access or use the Services or SKILLHABIT Platform for purposes of the development, provision or use of a competing software service or product.

(b)  TicTac has no obligation to monitor the Client’s use of the SKILLHABIT Platform and Software Services; however, TicTac reserves the right, upon confirmation of material non-compliance with the terms of the Agreement, to monitor such use, and to review, retain and disclose any information as necessary to ensure compliance with the terms of the Agreement, and to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.

5.3     Account Activation. TicTac will provide the Client with a SKILLHABIT account in order to use the Services. The Client may then choose an account name for its web space (e.g., Client.golms.com) that is not already in use by another SKILLHABIT customer. The Client, and its End Users, are, respectively, fully responsible for all activities performed on or through their account. The Client agrees that the Client will, and will inform each End User that it shall, to the best of their knowledge and ability: (a) provide true, accurate, current and complete information as prompted by the registration form (the “Registration Data”), (b) maintain and promptly update the Registration Data to ensure the information is true, accurate, current and complete, (c) promptly, and without undue delay, inform TicTac of any confirmed or reasonably suspected unauthorized use of an account or any other breach of security, and (d) endeavour to exit from the account at the end of each work session. TicTac undertakes no obligation to verify the Registration Data provided by the Client or its End Users. However, if TicTac finds or reasonably suspects that the provided information is materially untrue, inaccurate, not current, or incomplete, TicTac may, upon reasonable notice and opportunity to cure, suspend the Client’s or any End User’s account and refuse any and all current or future use of the Services (or any part of them), until such condition is remedied to TicTac’s reasonable satisfaction.

5.4     Password Confidentiality. Each End User that uses the Software Services must choose a password when registering. The Client will inform such End Users of their obligation to maintain the confidentiality of the passwords. The Client will also be assigned a password or passwords for access to and use of the Software Services. The Client acknowledges that once the initial password provided to the Client is changed, TicTac does not retain the technical ability to retrieve such passwords. The Client is fully responsible for all activities that occur using the Client’s password, and End User shall be fully responsible for all activities that occur using their password. The Client acknowledges and agrees that TicTac shall not be liable for any loss that the Client or any End User may incur as a result of someone else using a password that has been assigned to or obtained by the Client or its End Users, either with or without the knowledge of the Client or the applicable End User; nor shall TicTac be liable or responsible for any unauthorized access or misuse of the Software Services by the Client or any of its End Users, unless and to the extent that the same shall be attributable to TicTac’s actions.

5.5     End Users. In relation to the End Users, the Client undertakes that: (i) it will not direct or knowingly suffer any user subscription to be used by more than one individual End User unless it has been reassigned, in its entirety, to another individual End User, in which case the prior End User shall no longer have any right to access or use the Services and/or Documentation; (ii) it shall maintain (or be able to produce without undue delay) an up to date list of current End Users; (iii) it shall, in accordance with the rights described in Section 5.2, permit TicTac to verify the Client’s use of the Software Services in order to establish the authorization of any End Users and/or Registered User counts and shall provide assistance with the same, provided that this right shall be exercised with reasonable prior notice, in such a manner as not to materially interfere with Client’s normal conduct of business; (iv) if any such compliance verification procedures reveal that any password has been provided to any individual who is not an authorized End User, then, without prejudice to TicTac’s other rights, the Client shall promptly disable such passwords and TicTac shall not issue any new passwords to any such individual; and (v) if any such compliance verification procedures reveal that the Client has underpaid any fees to TicTac, then, without prejudice to the TicTac’s other rights, the Client will pay to TicTac an amount equal to such underpayment within ten (10) business days of the date of the relevant verification.

5.6     Application Programming Interface Provisions.

(a)  In connection with its use of the Software Services, the Client may, in some operating environments, be provided with an ‘instance’ of the SKILLHABIT Software (a “SKILLHABIT Instance”). The SKILLHABIT Instance may be accessible through an Application Program Interface (API) requiring login and API credentials (the “SKILLHABIT Credentials”). The Client expressly understands and agrees that TicTac does not control, track, or monitor the dissemination of any of “SKILLHABIT Credentials”, and, therefore, any misappropriation of those SKILLHABIT Credentials may neither be apparent to nor discoverable by TicTac without notice.

(b)  TicTac provides documentation disclosing certain aspects of its software functionality (the “SKILLHABIT LMS API Documentation”). The SKILLHABIT LMS API Documentation enables SKILLHABIT customers to pull and insert specific data elements into and out of their SKILLHABIT Instance. TicTac expressly disclaims and shall have no liability with respect to how the SKILLHABIT LMS API Documentation are used, except to the extent that it has directed the same. Further, unless otherwise specified by the Parties, in writing in an applicable SOW, TicTac takes no ownership interest in or rights to any third-party software code that incorporates the SKILLHABIT LMS API Documentation.

(c)  In order to enable the functionality provided by the SKILLHABIT LMS API Documentation, a requesting party must serve licensed SKILLHABIT Credentials to the SKILLHABIT Instance. The Client expressly understands that TicTac does not go beyond a verification of proper SKILLHABIT Credentials to validate whether or not access to or use of a customer’s SKILLHABIT Instance is authorized. Accordingly, an unauthorized party may use misappropriated, although valid, SKILLHABIT Credentials to gain access to and employ the functionality of an otherwise properly licensed SKILLHABIT Instance. Once the SKILLHABIT Credentials are validated by the SKILLHABIT Instance, any software code that is written in accordance with the SKILLHABIT LMS API Documentation will function with the SKILLHABIT Instance as designed. Thus, any unauthorized dissemination and distribution of the SKILLHABIT Credentials may lead to an unauthorized use of a SKILLHABIT Instance. TicTac expressly disclaims and shall have no liability to the Client, or any third party, for any loss or damages resulting from how the SKILLHABIT LMS API Documentation are used, whether authorized or not authorized by the Client, unless and to the extent that the same may be attributable to TicTac’s actions.

(d)  TicTac allows the Client to control, track, and monitor End Users with access to the API Credentials. The Client expressly understands and acknowledges, therefore, that it is an obligation upon the Client to govern all End Users under its license with policies and procedures that conform to an authorized use of their subscribed SKILLHABIT Instance.

(e)  Nothing in the foregoing shall be construed as a requirement on TicTac to follow the same SKILLHABIT LMS API Documentation in the future, and the Parties expressly understand that TicTac may change the SKILLHABIT LMS API Documentation, with reasonable advanced notice, at any time. TicTac shall have no liability to the Client or any third party with respect to any such changes; provided, however, that, in the event that any such change results in a material degradation of the Client’s ability to use the Services, the Client may terminate such Services without further liability.

5.7     Compliance with Law. Both Parties represent and warrant that they will observe and comply with all applicable laws in connection with their performance under this Agreement. The Client will notify TicTac, promptly and without any undue delay, of any discovered unauthorized use of the Software Services or any other breach of security that is known or reasonably suspected by the Client, provided that the Client is legally able to give such notice. TicTac may suspend the Services, upon notice and a reasonable opportunity to cure, in the event of a material violation by the Client of any obligation contained in this Section 6, until such violation ceases and TicTac receives reasonable assurances that such violation will not continue. If TicTac believes, in its sole discretion, that the software, computing equipment or network systems owned or controlled by TicTac (collectively, “TicTac Systems”) are being currently used for criminal activity, in a manner that violates the legal rights of TicTac, TicTac’s customers (including the Client), any user or other third party, or is experiencing an actual data loss or data misappropriation, or that the continued operation of the TicTac Systems places the TicTac Systems in potential danger of data loss, data breach, or catastrophic failure, then such suspension may occur prior to the giving of such notice to the Client.

6 Non-disclosure; confidentiality and data protection

Confidential information can be disclosed if required by law, court order or the rules of recognized stock exchanger.

6.1     Disclosure. Each Party may disclose to the other Party certain Confidential Information of such Party or of such Party’s associated companies, distributors, licensors, suppliers, or customers. For purposes of this Agreement, “Confidential Information” means information, that is of value to its owner and is treated as confidential (including all information which is subject to treatment as a ‘trade secret’ under applicable law); the “Disclosing Party” refers to the Party disclosing Confidential Information hereunder, whether such disclosure is directly from the Disclosing Party or through the Disclosing Party’s employees or agents; and “Recipient” refers to the Party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Recipient’s employees or agents.

6.2     Requirement of Confidentiality.

(a)  The Recipient agrees to hold all Confidential Information disclosed to the Recipient by the Disclosing Party in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information disclosed by the Disclosing Party to any third party, or utilize the Confidential Information disclosed by the Disclosing Party for any purpose whatsoever other than as expressly contemplated by the Agreement.

(b)  The Client acknowledges that the SKILLHABIT Platform and Documentation, as well as all pricing aspects of Orders and SOWs issued in connection with this Agreement, are the Confidential Information of TicTac. TicTac acknowledges that all data input by the Client or End Users into the SKILLHABIT Platform is the Confidential Information of the Client.

(c)  With regard to all Confidential Information, the obligations in this Section 7.2 shall continue for the Term of the Agreement and for a period of three (3) years thereafter; provided, however, that, with respect to any Confidential Information which is a trade secret under applicable law, the obligations shall continue in perpetuity for so long as such information is considered a trade secret.

(d)  The foregoing obligations shall not apply if and to the extent that:

(i) the Recipient establishes that the information communicated was publicly known at the time of the Recipient’s receipt or has become publicly known other than by a breach of this Agreement;

(ii) prior to disclosure hereunder was already in the Recipient’s possession without restriction as evidenced by appropriate documentation;

(iii) subsequent to any disclosure hereunder, the information is obtained by the Recipient on a non-confidential basis from a third party who has the right to disclose such information; or

(iv) was developed by the Recipient without any use of any of the Confidential Information as evidenced by appropriate documentation. Notwithstanding anything to the contrary herein, if the Recipient is ordered by an administrative agency or other governmental body of competent jurisdiction to disclose the Confidential Information, then the Recipient may disclose the requested Confidential Information; provided however, that, the Recipient shall first notify the Disclosing Party prior to disclosure, if allowed by law, in order to give the Disclosing Party a reasonable opportunity to seek an appropriate protective order or waive compliance with the terms of this Agreement and shall disclose only that part of the Confidential Information which the Recipient is required to disclose.

6.3     Return of Materials. Upon the request of the Disclosing Party or upon the expiration or termination of the Agreement, the Recipient shall, within a reasonable time, disable, delete or deliver to the Disclosing Party all of the Disclosing Party’s Confidential Information and any notes, extracts or other reproductions in whole or in part relating thereto, without retaining any copy thereof. Notwithstanding the foregoing, the Recipient shall be permitted to retain such copies of Confidential Information as may be reasonably necessary for legal or recordkeeping purposes, including such copies as are embedded in the automated backup of electronic data processing systems.

6.4     Data Use. The Client agrees that data derived by TicTac from TicTac’s performance of the Services or input into the SKILLHABIT Platform by use of the Software Services may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules; provided that such analysis shall be performed solely by TicTac and such analysis shall be performed only in conjunction with data derived by TicTac from TicTac’s performance of services for other customers, input by other SKILLHABIT customers or obtained from third-party data sources. The results of such analysis (“De- identified Data”) may be used by TicTac for any lawful internal purpose, including determining future hardware and communications needs for SKILLHABIT systems and determining trends associated with warehouse use, operation, and efficacy, but shall not be sold to any third-party or used for any other commercial purpose. Notwithstanding anything contained in this Agreement to the contrary, De-identified Data shall not contain (i) any Confidential Information of the Client, (ii) any information that identifies or can be reasonably used to identify any End Users or other individual person, (iii) any information that identifies or can be reasonably used to identify the Client or its affiliates, suppliers, or vendors, or (iv) any information that identifies or can be reasonably used to identify any activities or behaviours of the Client. Further, such De-identified Data shall not be subject to or susceptible to any re-identification, and, upon request, TicTac shall certify the same to the Client.

6.5     Protection of the Client’s Proprietary Information. TicTac shall only use the Client’s Confidential Information to the extent required for the proper delivery of the Services and in accordance with the Data Processing Agreement (the “DPA”), including as necessary or appropriate to prevent technical problems (e.g., to resolve issues related to technical support).

6.6     Processing of Personal Data. To the extent that TicTac processes Personal Data, it shall do so only in accordance with the “DPA”  which is incorporated by reference into this Agreement.

7 Limited warranty

(a)  TicTac represents and warrants that:

(i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof;

(ii) it has all rights, licenses, consents and authorizations necessary to grant the rights and licenses granted in this Agreement;

(iii) the Services delivered under the Agreement will operate substantially in conformity with its Documentation under normal use and circumstances;

(iv) the Documentation accurately and completely reflects all material features and functions of the Services;

(v) it shall comply with all applicable laws, rules, and regulations when performing its obligations under this Agreement; and

(vi) to TicTac’s knowledge, the Services do not contain, and will not transmit to the Client or its systems, any viruses, Trojan horses, timebombs, or any other code, programs or mechanisms that disrupt, modify, delete, harm, or otherwise impede the operation of computer systems.

(b)  Other than as expressly set forth in this Agreement, neither TicTac, its affiliates, licensors or suppliers, nor their respective officers, directors, employees, shareholders, agents or representatives makes any express or implied warranties, conditions, or representations to the Client, or any other person or entity with respect to the services or otherwise regarding the agreement, whether oral or written, express, implied or statutory, and, except as expressly set forth in this Agreement, the services are provided to the Client on an “as is” and “as available” basis, and are for commercial use only.

Without limiting the foregoing, any implied warranty or condition of merchantability, the implied warranty or condition of fitness for a particular purpose, and those arising from a course of dealing or usage of trade are expressly excluded and disclaimed. No warranty is made that use of the services will be timely, error free or uninterrupted, that any non- material errors or defects in the services will be corrected, that the system that makes the services available will be free of viruses or other harmful components or that the services will operate in combination with hardware, software, systems or data not provided or recommended by TicTac, that the operation of the services will be secure, or that the services functionality will meet the Client’s requirements. The Client assumes all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for the Client’s purpose.

8       Limitations of liability

8.1     Exclusions of Liability. Except in connection with and to the extent of any breach of a Party’s obligations of confidentiality hereunder, in no event shall either Party, its affiliates, licensors or suppliers, or any of their respective officers, directors, employees, shareholders, agents or representatives be liable to the other Party, or any other person or entity for any indirect, special, incidental, exemplary or consequential damages or any loss of goodwill under or in any way relating to this Agreement or resulting from the use of or inability to use the deliverables or the performance or non-performance of any Services, including the failure of essential purpose, even if such Party has been notified of the possibility or likelihood of such damages occurring, and whether such liability is based on any legal, including, but not limited to, contract, tort, negligence, strict liability, products liability or otherwise.

8.2     Maximum Liability. Except for claims arising (a) in connection with and to the extent of any breach of a Party’s obligations of confidentiality hereunder, (b) in connection with a Party’s obligations of indemnification pursuant to Section 10, or (c) in connection with contractual payment obligations hereunder, in no event shall either Party’s liability for any damages to the other Party, or to any other person or entity, regardless of the form of action, whether based on contract, tort, negligence, strict liability, products liability or otherwise, exceed the pro rata portion of fees received by TicTac from the Client applicable to the six (6) month period immediately preceding the events giving rise to such action.

9 Indemnification

9.1     TicTac Indemnification.

(a)  TicTac shall indemnify, defend, and hold harmless the Client and its officers, directors, employees and affiliates and End Users against any and all claims, actions or proceedings arising out of or in connection with, and to the extent caused by, (i) any infringement by the SKILLHABIT Platform against any patent, copyright, or trademark, or the misappropriation of any trade secret (except for claims which are specifically excluded under the terms of Section 10.1(b)), or (ii) any violation by TicTac of its obligations of confidentiality under this Agreement.

(b)  If any SKILLHABIT Platform becomes, or, in TicTac’s opinion, is likely to become, the subject of any claim of infringement, TicTac may, at its sole option, (x) obtain for the Client the right to continue using the SKILLHABIT Platform; (y) replace or modify the affected SKILLHABIT Platform so that it becomes non- infringing while providing substantially equivalent functionality; or (z) if such remedies are not available on commercially reasonable terms as determined by TicTac, terminate the license to use the Services for the affected portion of the SKILLHABIT Platform, and promptly refund any pre-paid subscription fees for the affected portion of the SKILLHABIT Platform.

(c)  Notwithstanding any terms contained in Section 10.1(a), TicTac shall have no liability for infringement claims if the alleged infringement is based on or arises from (i) the combination or use of the SKILLHABIT Platform with software or other materials not provided or recommended for use by TicTac, (ii) the modification of the SKILLHABIT Platform by anyone other than TicTac, or at TicTac’s direction, (iii) the use of the SKILLHABIT Platform not in accordance with the Documentation or the Agreement, or (iv) the use of other than the then-current version of the SKILLHABIT Platform if the use of the most current version of the SKILLHABIT Platform would have eliminated the infringement, and the Client was notified of and given a reasonable opportunity to use the most current version thereof.

9.2     Client Indemnification. The Client will indemnify, defend, and hold harmless TicTac, and its officers, directors, employees and affiliates against all claims, actions or proceedings arising out of or in connection with, and to the extent caused by, (i) any infringement of any Client Software, Marks, or Materials provided by the Client or its End Users or inputted into the SKILLHABIT Platform, against any patent, copyright, or trademark, or the misappropriation of any trade secret; or (ii) any violation by the Client of its obligations of confidentiality under this Agreement.

9.3     Indemnification Obligations. The indemnification provided in Sections 10.1 and 10.2 is conditioned on (i) the party to be indemnified (the “Indemnified Party”) giving the indemnifying party (the “Indemnifying Party”) prompt written notice of such claim; (ii) the Indemnified Party providing its full cooperation in the defence of such claim, if requested by the Indemnifying Party; and (iii) the Indemnified Party granting the Indemnifying Party the sole authority to defend or settle the claim. The Indemnified Party may engage legal counsel to monitor, but not control, any such claim at the Indemnified Party’s expense.

10 Term and termination

10.1     Initial Term. Unless otherwise specified in the Order, the Agreement has an initial binding period of 12 months from the date of commissioning. After the initial binding period, written notice of cancellation must be given six (6) months in advance.

10.2     Notice of Non-Renewal. Unless otherwise specified in the Order, either party may give written notice of non-renewal to the other Party six (6) months in advance.

10.3     Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the Parties shall have the right to terminate the Agreement as provided below:

(a) By either Party if the other Party commits a material breach of this Agreement and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other Party;

(b) By either Party if the other Party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws;

(c) By TicTac if any amounts hereunder which are due and owing and not reasonably in dispute remain unpaid for more than forty five (45) days following written notice of such unpaid amounts being delivered to the Client; or

(d) By either Party, upon notice, in the event of any documented verbal or written abuse (including threats of abuse or retribution) by any employee, officer, agent, or representative of the other Party that is directed toward any employee, officer, agent, or representative of such Party; provided that prior notice and a reasonable opportunity to address and reasonably remediate the same shall be provided before any such termination notice may be served effectively hereunder.

10.4     Transition.

(a) Upon expiration or termination of this Agreement for any reason, all rights and licenses granted by TicTac hereunder to the Client will immediately cease. Upon any expiration or termination of this Agreement, TicTac shall make the Client’s Materials reasonably available to it for a period of sixty (60) days. Upon any duly effected termination of this Agreement by the Client pursuant to Section 11.3(a), (b) or (d), TicTac shall promptly refund any pre-paid but unearned fees to the Client.

(b) Upon any expiration or termination of the Agreement by the Client pursuant to Section 11.3(a), (b) or (d) of this Agreement, TicTac will continue, upon the Client’s request, to provide the Services, as the Services were provided to the Client during the most recently completed Term and under the same conditions and applicable fees, to the Client for a maximum period of three (3) months (“Transition Services”). The Client may use the Transition Services to continue operations and for data retrieval and export purposes, and TicTac will provide reasonable migration tools that it generally makes available to its customers for the Client to retrieve the Client’s Materials and content as a part of providing the Services.

10.5     Survival. Termination of this Agreement or any Schedule, Order or SOW will not affect the provisions regarding each Party’s treatment of Confidential Information, provisions relating to payments of amounts due, indemnification provisions, the provisions of Section 12, and provisions limiting or disclaiming a Party’s liability, all of which shall expressly survive such termination.

11 General

11.1     Authority. Each Party represents and warrants that it has the legal power and authority to enter into the Agreement. When executed and delivered by both Parties, the Agreement will constitute the legal, valid and binding obligations of such Party, enforceable against such Party in accordance with its terms.

11.2     Governing Law and Disputes. This Agreement shall be governed by and constructed in accordance with the laws of Sweden. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity of this Agreement, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The place of arbitration shall be Malmö, Sweden.

11.3     International Conventions. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to this Agreement or the Parties hereunder.

11.4     No Conflicts. Notwithstanding the content of any Client purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of the Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.

11.5     Communications; Notices. All communications and notices which are required or otherwise provided under the Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested; (iii) by a nationally recognized overnight courier service; or (iv) by electronic mail (with read receipt or other tracking mechanism to confirm receipt), to the respective addresses set forth either on the first Order, or on the first page or signature page of these Terms and Conditions, as the case may be, as each may be amended by the Parties by written notice to the other Party in accordance with this Section 12.5.

11.6     Assignment. Neither Party may assign its rights and obligations under the Agreement without the prior written consent of the non-assigning Party, which, in the case of any proposed assignment to affiliates or successors in interest, shall not be unreasonably withheld, conditioned, or delayed. Any assignment in violation of this Section shall be void and of no effect. The Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.

11.7     Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

11.8     Entire Agreement. The Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. All Schedules attached to the Agreement or subsequently added hereto by mutual consent of the Parties are incorporated into this Agreement for all purposes.

11.9     Waiver. No failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

11.10     Modifications. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or modification of this Agreement and signed by an authorized representative of each Party. Notwithstanding the foregoing, TicTac reserves the right, in its sole discretion, to make any changes to the Services and SKILLHABIT Platform that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of TicTac’s services to its customers, (ii) the competitive strength of or market for TicTac’s services, or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law; provided that no such changes have the effect of materially degrading the functionality of the Services.

11.11     Force Majeure. Neither Party shall be liable for delay or failure in performing any of its obligations hereunder due to causes beyond its reasonable control, including an act of nature, war, natural disaster, governmental regulations, terrorism, epidemics or other public health emergencies, communication or utility failures or casualties, or the failures or acts of third parties.

11.12     No Third-Party Beneficiaries. The Agreement is personal to the Parties and no third parties shall be considered beneficiaries hereof, for any purposes.

11.13     Additional Policy Compliance. Each of the Parties hereby represent and warrant that they shall comply with all laws, regulations or other requirements relating to business ethics of any country in which services are performed or received hereunder. Each Party represents and warrants that it has not taken any action prior to the date hereof that would subject the other to liability under any such laws that are aimed at preventing bribery or corruption and agrees and covenants not to take any action in the course of performing the Agreement that would subject the other Party to the same.