Terms and Conditions
D2M3 – GENERAL STANDARD TERMS & CONDITIONS
1.1 These general standard terms and conditions (the “T&C”) are applicable for any and all services provided by applicable D2M3 company (“D2M3”) to the customer (the “Customer”). Each a “Party” and together the “Parties”.
1.2 In addition to these T&C's any third-party software license and subscription terms apply and take precedence over these T&C's with respect to the use of such third party software.
1.3 These T&C's together with any other applicable D2M3 terms, agreement, appendices and/or offers issued by D2M3 constitutes the agreement between the Parties (the “Agreement”). In the event of any conflict between the documents constituting the Agreement, these T&C's shall prevail unless otherwise is expressly stated in these T&C's or otherwise agreed between the Parties in writing with reference to these T&C's. Any changes or additions to these T&C's or any other terms under the Agreement is only valid if the changes or additions are made with explicit reference to the clause(s) that should be changed, either in a separate agreement between the Parties or in the offer issued by D2M3 and sent to the Customer.
1.4 D2M3's services are exclusively for use with business persons acting in the course of business.
1.5 If the Parties have agreed that any affiliate of the Customer shall have the right to purchase or use any services under the Agreement, these T&C's and any other part of the Agreement shall apply in relation to such affiliate. The Customer is fully responsible for such affiliate's proper performance of the Agreement such as for its own debt. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means direct or indirect control of more than 50 % of the voting interests of the subject entity.
2. Fees and Payment
2.1 The Customer shall pay D2M3 the fees, charges and other amounts specified in the Agreement. If the Parties have not agreed about any price in writing for a specific service D2M3's from time to time applicable standard fees and prices shall apply.
2.2 The prices are adjusted annually, as from the start of a new calendar year, in accordance with the changes in the applicable index as stated on D2M3's website, if not informed otherwise by D2M3.
2.3 D2M3 may at any time adjust any prices subject to changes in regulations, taxes, fees or similar circumstances beyond D2M3's control. D2M3 may also adjust any prices for third party products or services in case such third party adjusts its prices.
2.4 Any such price adjustment shall have effect one (1) month after the date D2M3's notice was sent. Any prices are exclusive of a) VAT and other applicable taxes and duties (which shall be paid by the Customer in the manner and at the rate prescribed by law), and b) delivery, carriage, insurance, travel, hotel and subsistence costs of materials and external services (which may be charged to the Customer at cost unless the Agreement provides otherwise).
2.5 Payment shall be made within thirty (30) days of the date of invoice. In case of late payment, D2M3 may, without prejudice to any other right or remedy available to D2M3, charge interest on the unpaid amount and collection charges in accordance with the applicable statutory rate. D2M3 shall also have the right to a) decline to supply any services to the Customer, b) cancel the Agreement or treat the Agreement as having been cancelled by the Customer, and c) claim compensation for any loss or damage of any kind due to such late payment and/or cancellation of Agreement.
3.1 Any services are delivered when D2M3 has made such services available to the Customer at any of D2M3's locations or at any other agreed place.
3.2 Any delivery is made at the Customer's risk, and expense. D2M3 may make partial deliveries.
3.3 D2M3 is not responsible for obtaining or maintaining any export license(s) that may be required for delivery.
4.1 D2M3 can cancel a course if it is too few participants. D2M3 is not liable to pay compensation for the costs of airline tickets, hotels or similar in case a course must be cancelled.
4.2 The Customer may cancel its booking of a course free of charge if the cancellation is made no later than three (3) weeks before the course starts. For cancellations thereafter until five (5) working days prior to the course starts a cancellation fee of 50 % of the price of the course apply. Cancellation is not possible five (5) working days before the course or less.
5.1 The content of the Agreement shall at all times be kept strictly confidential and not be disclosed to any third party without the prior written consent of the other Party (such consent not to be unreasonable withheld).
5.2 All information, whether oral or written or in visual, electronic or tangible form, regarding or otherwise relating to a Party, any of its affiliate or to any of their affairs or other business matters, which has been disclosed or may be disclosed to the other Party (the “Receiving Party”) or which the Receiving Party has or may otherwise become aware of in connection with the preparation, negotiation, entry into or performance of the Agreement, shall at all times be kept strictly confidential by the Receiving Party and not be used by it for any other purpose than the performance or enforcement of the Agreement nor be disclosed by it to any third Party without the prior written consent of the other Party (such consent not to be unreasonable withheld).
5.3 The restrictions in clause 5.1 and 5.2, respectively, shall not apply to information:
(a) to the extent reasonably necessary to be used or disclosed by the Receiving Party in order for it to secure its interests against the other Party in connection with a dispute, controversy or claim arising out of or in connection with the Agreement or to otherwise enforce its rights under that Agreement;
(b) that were at the time of its disclosure or which becomes thereafter generally available to the public otherwise than as a consequence of a breach by the Agreement;
(c) that were already known to the Receiving Party or otherwise in its possession prior to the time of its disclosure;
(d) that were obtained by the Receiving Party in good faith without restriction from a third party; or
(e) that the Receiving Party is required to disclose by law or any governmental or other regulatory authority or by any applicable contract or regulations of any applicable stock exchange or other market place. The Party using or disclosing any information or documentations with reference to any of these exceptions bears the burden of proof to establish that the relevant exception applies.
6. Personal Data
6.1 For certain service(s) that D2M3 provides to the Customer, D2M3 will process personal data on behalf of the Customer as a processor.
6.2 The Parties agree that when a service is provided to the Customer for which D2M3 will process personal data on behalf of the Customer as a processor, the corresponding Data Processing Agreement will automatically be entered into between the Parties.
6.3 The terms of any applicable Data Processing Agreement shall prevail over these T&C's.
7. Limitation of Liability
7.1 Either Party shall in no event be liable for (i) any indirect, incidental, special, consequential, punitive or tort damages, nor (ii) for any loss of use or data, or production or for lost profits, savings or revenues of any kind (whether direct, indirect or consequential); no matter what theory of liability, even if the Party has been advised of the possibility of such damages. In addition, in no event shall D2M3's total liability for all damages, losses and causes of action exceed an amount equivalent to the lowest of a) the amount paid or payable by Customer to D2M3 for the type of service causing the damage, loss or cause of action during one (1) year preceding the time of the event causing such damage, loss or cause of action, and b) EUR 100 000.
7.2 Any claim for compensation of any kind towards D2M3 shall be notified to D2M3 without undue delay and at the latest three (3) months after the relevant service was delivered by or from D2M3, unless a specific warranty given prescribes a longer period.
7.3 The limitation of liability set forth herein does not apply in case of willful misconduct or gross negligence.
8. Force Majeure
If and to the extent that either Party's performance of its obligations under the Agreement is impeded or made unreasonably onerous by circumstances beyond its reasonable control that it could not reasonably expect to have taken into account at the time the Agreement was entered into, or to have avoided or overcome the effects of, such Party shall be released from liability in damages and any other penalties for delay in performing or failure to perform such obligations.
9. Term and Termination
9.1 Unless otherwise is provided in the Agreement, the term of the Agreement is until further notice and at least for as long as there are any outstanding obligations for any of the Parties.
9.2 D2M3 may terminate the Agreement with immediate effect if the Customer fails to comply with any terms and conditions of the Agreement, including these T&C's.
9.3 If the Agreement is terminated any rights granted to the Customer pursuant to the Agreement shall automatically cease.
9.4 Without prejudice to any remedy it may have against the other Party for breach or non-performance under the Agreement, either Party shall have the right to terminate the Agreement with immediate effect:
(a) if the other Party should commit or permit a breach or non-performance of material importance to the other Party and should fail to remedy such breach or non-performance within 30 days after receipt of written notice; or
(b) if the other Party should enter into liquidation, either voluntary or compulsory, or become insolvent or enter into composition or corporate reorganisation proceedings or if execution be levied on any goods and effects of the other Party or the other Party should enter into receivership.
Notice of termination shall be given without undue delay after the circumstance constituting the breach was or should have been known to the aggrieved Party.
9.5 The provisions contained in the Agreement that are express or by their sense and context are intended to survive the termination of the Agreement, shall so survive, including but not limited to clauses 5 (Confidentiality), 7 (Limitation of liability) and 11 (Disputes and governing law) in these T&C's.
10.1 D2M3's waiver of any of its rights or remedies under the Agreement must be in writing and duly executed by D2M3. No single or partial waiver of any such right or remedy shall preclude any other or further exercise of that or any other such right or remedy.
10.2 The Customer may not assign any of its rights or obligations under the Agreement without D2M3's prior written consent. D2M3 may assign any of its rights or obligations under the Agreement without the Customer's prior consent, including D2M3's right to receive payment under this Agreement.
10.3 D2M3 is entitled to sub-contract a third party to perform any of its obligations under the Agreement without the Customer's consent.
10.4 Changes and additions to the Agreement, including to this Clause must be in writing and duly executed by the Parties.
10.5 The Agreement contains the entire Agreement between the Parties with respect of the subject matter thereof, and supersedes all prior or contemporaneous Agreements or understandings, whether oral or written.
10.6 All correspondence and notifications pursuant to the Agreement shall be in writing.
11. Disputes and Governing Law
11.1 Any dispute, controversy or claim arising out of, or in connection with, the Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The place of arbitration shall be Gothenburg, Sweden. The language to be used in the arbitration proceeding shall be English (unless otherwise is agreed by the disputing parties).
11.2 All arbitral proceeding conducted pursuant to Clause all information disclosed and all documents submitted or issued by or on behalf of any of the disputing parties or the arbitrators in any such proceedings as well as all decisions and awards made or declared in the course of any such proceeding shall be kept strictly confidential and may not be used for any other purpose than these proceedings or the enforcement of any such decision or award, nor be disclosed to any third part without the prior written consent of the Party which the information relates.
11.3 Notwithstanding the foregoing, D2M3 may take any legal action necessary at any competent court in the Customer's country of residence for collection of delayed payments. The Parties do hereby accept that the jurisdiction of such court shall apply for such purpose. The Agreement, including this Clause
11.4, shall be governed by and construed in accordance with UK law.