LAST MODIFIED: 24.04.2023
Learningbank (and its licensors) are proprietors of the Products, associated services and documentation.
The purpose of this Agreement is that the Reseller shall act as a reseller of the Products with right to promote, market and resell the Products to Customers within the Territory on the terms set out below.
This Agreement does not create an exclusive agreement between the Reseller and Learningbank. Both the Reseller and Learningbank will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
1.3 Changes to the Agreement
Learningbank may update, change or replace these terms, and Learningbank encourages the Reseller to review them periodically. Any signification additions and/or changes to the terms will be notified to the Reseller by e-mail. The notification shall be given no less than thirty (30) days before the change is put into effect.
If the Reseller wishes to object to Learningbank, the Reseller shall state so in writing within fourteen (14) calendar days of receiving the above-mentioned notification.
“Agreement” shall mean this Learningbank – Reseller Agreement.
“Customers” shall mean customers and end users of the Products obtained via the Reseller.
“Effective Date” shall mean the date of the last signature of this Agreement.
“Intellectual Property Rights” shall mean any and all intellectual property rights (whether registered or unregistered) including but not limited to copyrights, trademark rights, patent rights, design rights, trade name rights, database rights, trade secrets and domain rights on all tangible and/or intangible materials, such as documentation, templates, diagrams, drawings, sketches, films, websites, data files, programs, software, source code, API’s, models, (electronic) files as well as (other) preparatory material thereof.
“Parties” shall mean Learningbank and the Reseller collectively.
“Party” shall mean Learningbank or the Reseller.
“Reseller” shall mean the reseller having entered into this Agreement.
“Sub-Resellers” shall mean resellers appointed by the Reseller as sub-resellers of the Products subject to consent from Learningbank, cf. clause 3.2.
Learningbank has authorised the Reseller to promote, market and resell Learningbank’s Products in the stated Territory within the Master Agreement.
3.1 Relationship of the Parties and Customer relationship
3.1.1 This Agreement does not constitute either Party the agent of the other, or create a partnership, joint venture or similar relationship between the Parties, and neither Party will have the power to obligate the other in any manner whatsoever.
3.1.2 As a main rule and unless otherwise specifically agreed, Reseller shall refer Customer orders to Learningbank, and the Customer agreement (including General Terms & Conditions, cf. clause 4.1) and Customer relationship shall be finally concluded between Learningbank and the Customer. Orders are further regulated in Clause 6.
3.1.3 Reseller acknowledges and agrees that its relationship with Learningbank is that of an independent contractor, and Reseller will not act in a manner that expresses or implies a relationship other than that of an independent contractor.
Without the Learningbank’s prior written consent, the Reseller shall not engage Sub-Resellers.
3.3 Sales outside Territory
The Reseller shall not engage in any way outside the agreed Territory without the Learningbank’s prior written consent.
3.4 Company Sales Activities
Learningbank reserves the right to make direct sales in the Territory, and the Reseller shall not be compensated for such sales. Learningbank may appoint additional resellers in the Territory at any time.
4. Reseller Responsibilities
The Reseller shall maintain marketing and customer service standards appropriate to maintain high-quality services and reflect the Reseller’s and Learningbank’s reputation favorably. The Reseller shall provide Customers with prompt, courteous, and efficient service, take every reasonable precaution not to disclose any Customer information other than as permitted by any applicable privacy or personal health information legislation, and deal with Customers honestly.
4.1 Customer acceptance
The Reseller is responsible for ensuring that the Customers accepts and enters into Learningbank’s General Terms & Conditions and Data Processing Agreement.
5. Marketing & Promotion
At its own expense, the Reseller must work diligently to promote and protect Learningbank’s interests, enhance and maintain its reputation, and act loyally and faithfully towards Learningbank.
This includes representing the Products and brands of Learningbank to Customers and prospective Customers in the most favourable manner at every reasonable opportunity, including, but not limited to, maintaining good relationships with all of the Customers and prospective Customers and using best efforts to maximise sales of the Products within the Territory.
5.1 Marketing Review
The Parties must meet regularly to discuss and review:
- the sales made by the Reseller,
- opportunities and risks,
- the Reseller’s marketing plans and forecast sales of Products and
- what assistance may be required from Learningbank to support those marketing plans.
The Reseller grants Learningbank a non-exclusive, non-transferable, royalty-free right to use and display the Reseller’s trademarks, service marks and logos in connection with and during the term of this Agreement. Learningbank retains all ownership rights in Learningbank’s trademarks. During the term of this Agreement, the Reseller may use Learningbank’s trademark for the purpose of the Agreement.
5.3 Demo Platform
If Learningbank agrees to make a Learningbank Demo Platform available to the Reseller, the Reseller will use the Demo Account solely for education, demonstration and evaluation purposes. The Reseller is not permitted to use it for any other purpose.
The Reseller will not lease, distribute, license, sell or otherwise commercially exploit the Demo Platform. The Reseller will not use any Customer data. The Reseller can only use its own data (data and information that the Reseller specifically owns).
5.4 Sales Support
At Learningbank’s discretion, Learningbank will provide sales support to the Reseller, such as occasional participation on a call with the Reseller and a prospective Customer.
In connection with Customer orders referred by Reseller to Learningbank, cf. clause 3.1, Reseller must provide Learningbank with the details of the prospective Customer (including full legal name and contact details), the Products required by the prospective Customer, and any other information reasonably required by Learningbank.
6.1 Accepting Orders
Learningbank has the right to accept or reject each order on reasonable grounds. If Learningbank rejects an order, it must provide the Reseller with its reasons for doing so.
7. Revenue Share & Payment
Requirements for Payment; to receive payment under this Agreement, the Reseller must have:
- agreed to the terms of this Agreement with Learningbank,
- provided Learningbank with account information, including bank information,
- submitted to Learningbank all the necessary and valid tax documents.
7.1 Payment Obligations
The Revenue Share Amount will follow the Revenue Share Payment Agreement.
7.1.1 Learningbank invoices the Customer, Learningbank ultimately owns the rights to the Customer relationship, cf. clause 3.1).
- For payments requested by Learningbank to the Customer through an invoice, all amounts invoiced are due and payable within thirty (30) days from the date of the invoice.
- Learningbank will pay the Revenue Share Amount due to the Reseller within thirty (30) days after the revenue has been recognised. Recognised revenue is the month of the license’s start date and when the Customer has paid their invoice.
- In the event of termination, Learningbank has full ownership of the Customers and the Customer relationship as the main rule pursuant to clause 3.1 Insofar as any individual Customer relationships have been entered directly between Reseller and Customers subject to specific agreement between the Parties, cf. clause 3, the Reseller is obligated to transfer the Customer relationship to Learningbank.
7.2 Revenue Share Payment
All payments by Learningbank will be made by bank transfer, and it is the Reseller’s responsibility to ensure correct bank information to facilitate the transfer.
Learningbank will pay the Revenue Share Amount due to the Reseller in an amount equal to the Net Revenue Learningbank recognises as revenue, multiplied by the Revenue Share percentage.
Payment will be in DKK or EURO.
The Reseller is responsible for the payment of all taxes applicable to the Revenue Share. The Reseller will be assessed sales tax unless the Reseller provides Learningbank with a valid reseller certificate that indicates tax should not be applied to the Revenue Share amount.
7.4 Price adjustments
Learningbank may change its Products’ pricing at any time, but orders accepted before the change takes effect shall be invoiced at the previous price. Learningbank may adjust the pricing for existing Customers each year according to the General Terms & Conditions.
8. Ensuring Customer Success
Learningbank wishes for the Reseller to succeed and will provide resources and training to help the Reseller do so.
8.1 Training and Support
Learningbank will make various webinars and other resources available to the Reseller, without charge. Learningbank will also make available to the Reseller a Toolset, accessible through Partner Manager. Learningbank may change or discontinue any or all parts of the Toolset, and any other Program benefits or offerings at any time without notice.
8.2 Customer super-user training
Learningbank may require the Customer to go through and/or purchase standard onboarding super-user training. This can either be done by Learningbank or the Reseller. Learningbank will provide user training purchased by a Customer as set forth in a mutually agreed upon order between the Customer and Learningbank. Learningbank may communicate directly with any Customer about the use of the Learningbank Products and any support issues experienced.
The Reseller will provide first-level support to the Customer. Learningbank will provide second and third-level support in accordance with the Service Level Agreement and Terms and Conditions.
9 Intellectual Property Rights
9.1 Learningbank’s proprietary rights
Learningbank (and its licensors) owns and retains all Intellectual Property Rights in the Products, associated services and documentation. The Reseller must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
Reseller, Sub-Resellers and/or Customers shall not acquire any title, right, or interest in or to the Intellectual Property Rights of Learningbank, including but not limited to the Products, associated services and documentation.
The Reseller must only use Learningbank’s Intellectual Property Rights for the purpose of marketing, promoting, and selling the Products in accordance with the Agreement and during the term. No license to any software is granted by this Agreement.
Learningbank is protected by intellectual property laws.
The Reseller agrees not to copy, rent, lease, sell, distribute, or create derivative works based on the Learningbank’s Products, in whole or in part, by any means, except as expressly authorised in writing by Learningbank.
Learningbank encourages all Customers, Resellers, and partners to give feedback, comments and suggestions on Learningbank’s Products and provide suggestions for improvement.
The Reseller agrees that all such feedback, comments and suggestions will be non-confidential and that Learningbank owns all rights and Intellectual Property Rights to use and incorporate them into Learningbank’s Products, without payment.
9.2 Customer’s proprietary rights
As between the Reseller and Customer, the Customer retains the right to access and use the services associated with Learningbank’s Products regardless of whether the Reseller placed the order with Learningbank for a Customer or made payments for the Customer.
Customers will own and retain all rights to their data.
10 Disclaimer of Warranties
Each party warrants that it has full power and authority to enter and perform its obligations under the Agreement, which, when signed, will constitute binding obligations on the warranting party.
Learningbank does not give any warranty to either the Reseller or any Customer relating to the Products.
11 Limitation of Liability
The Parties are liable towards each other according to the general principles of Danish Law. A Party is under no obligation to provide a specific number of Customers, and the lack hereof shall not constitute a breach of this Agreement.
The Parties are only liable for direct losses.
The Parties expressly disclaim and exclude any and all liability for any indirect or consequential loss or damages, including without limitation loss of profit including expected profits, loss or destruction of data and/or their restoration, loss of goodwill or business, loss of contracts or loss of interest.
Learningbank shall only be liable for Learningbank’s own Products and not for any other matter attributable in whole or in part to Reseller. Learningbank undertakes no liability concerning faults, mistakes, delays, defects, business interruptions or for any non-fulfillment of this Agreement, to the extent that such is caused by Reseller’s breach of this Agreement or Reseller’s acts or omissions.
In no event shall the total aggregate amount that the Parties may be liable to pay in damages, costs etc. under this Agreement exceed an amount equal to the fees paid by Learningbank to Reseller in the twelve (12) month period preceding the event giving rise to the claim. If twelve (12) months have not yet passed from the Effective Date, the liability cap shall be calculated as the average of fees paid by Learningbank in the months passed times 12.
This Agreement shall enter into force on the Effective Date and shall remain in force until terminated by either Party.
12.1 Termination Without Cause
Either Party may terminate this Agreement with sixty (60) days’ written notice to the other Party.
12.2 Termination for Agreement changes
If Learningbank updates or replaces this Agreement’s terms, the Reseller may terminate this Agreement with thirty (30) days’ written notice to Learningbank, provided that the Reseller sends Learningbank written notice within fourteen (14) days after Learningbank sends the Reseller the notice of the change.
12.3 Termination for material breach
Either Party may terminate this Agreement with thirty (30) days’ written notice to the other Party if the other Party is in material breach of this Agreement and has not cured such material breach within the thirty (30) day period.
Reseller’s non-payment shall always constitute material breach.
12.4 Other termination for cause
Learningbank may immediately terminate this Agreement and/or suspend the Reseller or the Customer’s access to the Learningbank Products if:
- The Reseller becomes subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, unless prevented by mandatory applicable law.
- The Reseller breaches its confidentiality obligations under this Agreement or infringes or misappropriates Learningbank’s Intellectual Property Rights.
- If Learningbank determines that the Reseller is acting, or has acted, in a way that has or may negatively reflect on or affect Learningbank’s business.
- If any other clause within this Agreement is not followed.
12.5 Effect after termination
This clause remains in full force and effect even after termination of the Agreement by its natural termination or the early termination by either Party.
In the event of termination of this Agreement,
- Customer orders and agreements obtained via the Reseller shall not be affected and shall continue as subject to Learningbank’s General Terms & Conditions.
- Reseller shall immediately cease to promote, market and resell the Products and shall cease to use any of Learningbank’s Intellectual Property Rights, including but not limited to discontinuing all use of Learningbank’s trademark and removing all references to Learningbank from the website(s) and other collateral.
- Reseller shall, upon receiving notice of termination from Learningbank without undue delay, correspondingly terminate the Reseller’s agreements with any Sub-Resellers. Such termination notice shall not exceed the termination notice in clause 12.1.
- Reseller shall return to Learningbank all Learningbank documentation, information-, and advertising. And promotion material that the Reseller possesses.
- Learningbank’s obligation to pay the Reseller any earned Revenue Share will follow the below, as long as Learningbank recognises the related payment by the Customer.
Year one (1) after termination: 100%
Year two (2) after termination: 75%
Year three (3) after termination: 50%
Year four (4) after termination: 0%
During this Agreement, it may be necessary for the Parties to share proprietary information (including but not limited to: trade secrets, industry knowledge, and other confidential information not in the public domain) to seek out potential referrals.
The Parties shall not use or disclose any such proprietary information about the business or affairs of the other Party at any time during or after the term of this Agreement.
The Reseller is not entitled to assign this Agreement, or parts thereof or any rights without the other Learningbank’s prior written consent.
15 Data protection
To the extent that personal data is being processed in the performance of the Agreement, the Parties’ must duly comply with Applicable Data Protection Legislation.
16 Governing law and venue
The Agreement shall be governed, construed and enforced in accordance with Danish Law, irrespective of any conflict of law, which could otherwise result in the application of the laws of another jurisdiction for a dispute.
The Parties will attempt to settle any disputes between them that may arise by negotiation in good faith.
Any dispute arising from this Agreement must be settled by the Danish Maritime and Commercial Court (in Danish: Sø- og Handelsretten) to the extent that the aforesaid court is competent according to the applicable provisions of the Danish Administration of Justice Act (in Danish: Retsplejeloven). In the event that the Danish Maritime and Commercial Court is not competent any disputes shall be brought before the City Court of Copenhagen (in Danish: Københavns Byret).