License conditions
52ViKING POS license conditions.
Cloud
Valid from 15 May, 2023
1. The SaaS-Agreement and Parties
1.1. This SaaS Agreement governs the Subscriptions to 52ViKING POS and is a legally binding agreement between Fiftytwo A/S (CVR no. 24784010) including its consolidated companies (together “Fiftytwo”) and the Customer, irrespective of the Customer's residence.
1.2. The SaaS Agreement must be accepted with a purchase of a Subscription to 52ViKING POS. The Customer must also accept the Fiftytwo Data Processing Agreement as an integrated part of the SaaS Agreement and the Subscription.
1.3. To subscribe for 52ViKING POS, the Customer must conclude a Framework Agreement with Fiftytwo to define the Solution and the number of Subscriptions to meet the Customer’s need. The SaaS Agreement is an integrated part of the Framework Agreement, and when accepted, the Customer will also accept the SaaS Agreement and its terms and conditions. The Customer’s standard terms and conditions, or other deviations from the SaaS Agreement, shall not apply, and any deviations to the terms of the SaaS Agreement and/or its Schedules must be specified in the Framework Agreement.
1.4. The SaaS Agreement takes effect when the Customer has accepted the Framework Agreement or when starting using the Service, whichever occurs first.
2. Definitions
2.1. “52ViKING POS” means the Fiftytwo point of sale system software and/or other eco-systems operated through an internet based interface integrating into customers’ off-line or on-line systems;
2.2. “Application” means additional software offered by Fiftytwo and, through an interface, to be applied with 52ViKING POS;
2.3. “Confidential Information” has the meaning set forth in clause 10;
2.4. “Customer” means the subscriber to the Service;
2.5. “Customer Contact” means designated and authorized contact persons with the Customer under the SaaS Agreement, to communicate with and receive notices from Fiftytwo, and to request Support Services;
2.6. “Customer Data” means the data input collected with Customer’s application of the Service, including financial or business information, and user data, including personal data; excluded from Customer Data is data on Customer delivered to Fiftytwo for concluding the Framework Agreement, and personal data collected by Fiftytwo as a data controller;
2.7. “DPA” means the Fiftytwo Data Processing Agreement integrated as a Schedule to the SaaS Agreement and the Subscription;
2.8. “Framework Agreement” means an offer to be accepted by the Customer for the Service and the Solution elected, and may include additional services provided by Fiftytwo; the SaaS Agreement is an integrated part of the Framework Agreement with the Framework Agreement taken highest priority in case of any conflict of terms;
2.9. “Intellectual Property Rights” means all intellectual property rights globally, whether registered or unregistered, including copyright, and rights in design, patents, trademarks and trade secrets, knowhow, technology, goodwill and all other categories of industrial and intellectual property rights;
2.10. “Party”/”Parties” means Fiftytwo and the Customer individually, and collectively.
2.11. “POS” a point of sales in Customer’s operations, such as a cash register, payment terminal or otherwise;
2.12. “POS Unit(s)” means e.g. Point-Of-Sale (POS) terminals, payment card terminals, self-check-out (SCO) terminals, hand-held terminals, mobile phones and other equipment applied for use of POS systems.
2.13. “SaaS Agreement” means this agreement with its Schedules;
2.14. “Schedules” means the DPA and any further schedules to the SaaS Agreement;
2.15. “Service(s)” means the right to access and use 52ViKING POS, as well as the performance of 52ViKING POS and Applications, as subscribed to by the Customer;
3. Subscription definitions
3.1. “Short Documentation” means a high-level description of 52ViKING POS;
3.2. “Solution” means the Customer’s implementation of the Services and Applications into the Customer’s IT environment and the number of Subscription purchased by the Customer.
3.3. “Subscription” means purchase of the Service for a Subscription Period with automatic renewals unless unsubscribed or otherwise terminated, including the requirement that one Subscription must be purchased for each business entity or Unit to access and use 52ViKING POS, cf. clause 4.2;
3.4. “Subscription Fee” means the Customer’s payments for continuous use of the Service;
3.5. “Subscription Period” means the binding period for the Customer’s Subscription to the Service;
3.6. “Support Services” means service offered by Fiftytwo in form of Second Level Support (in-depth technical support to the Services) and Third Level support (error detection in the Services requiring developer-level engagement),
3.7. “Third Party Software” means software which are not Fiftytwo created software, including third party platform services applied for usage of 52ViKING POS.
3.8. “User Stories“ means technical specifications of 52ViKING POS presenting variable set-up solutions to support the Services.
3.9. Expressions such as “including” and similar expressions, means “including, but not limited to”. References to “days” shall mean calendar days.
4. 52Viking POS
4.1. 52ViKING POS is a standard generic software with optional standard settings of functionalities, and Fiftytwo may introduce extended versions for purchase. 52ViKING POS is operated on an Azure platform and are made available as a Service to the Customer either as a cloud and/or a hybrid Service.
4.2. Fiftytwo offers Applications with additional features and functionalities, and Fiftytwo reserves the rights to offer the Applications against separate fees in addition to the Subscription Fee. Fiftytwo makes an interface to the Applications available on an “as-is” basis. The Applications may be offered as standard or customized solutions and may be subject to supplementary terms to this SaaS Agreement.
4.3. Fiftytwo provides Support Services, cf. clause 8. For any additional services, including implementation and integration services to Customer’s IT environment, the services will be offered under the terms of Fiftytwo General Terms and Conditions and additional delivery terms as accepted by Fiftytwo.
5. The Subscription and the Service
5.1. The Customer has agreed to subscribe for the Service, and Fiftytwo makes the Service available to the Customer granting a limited, non-exclusive, and non-transferable right in designated territories to access and use 52ViKING POS pursuant to this SaaS Agreement for each Subscription Period.
5.2. A Subscription must be maintained as long as the Customer applies the Service, and the Customer must have one (1) Subscription for each Customer brand name, one (1) Subscription for each store, and one (1) Subscription for each POS Unit. The rights to access and use 52ViKING POS is limited to the paid Subscriptions as included into the Customer’s Solution.
5.3. 52ViKING POS is a standard generic software, and the Service will perform as presented in accordance with good industry practice for hosting a professional internet-based software as a service under normal use and circumstances. Otherwise, the Service is provided “as-is” without any specific or implied warranties of any kind, and the Subscription is not contingent on the delivery of any future functionality or feature, unless otherwise agreed in writing by Fiftytwo.
5.4. To obtain the functionalities as presented in the Fiftytwo Short Documentation, the Solution must be implemented into the Customer’s IT environment and applied in accordance with instruction examples provided as User Stories. Fiftytwo does not take any responsibility for the Customer's customizing of the Solution or integrations of Third Party Software into the Customer’s Solution, unless delivered by Fiftytwo as additional services, cf. clause 3.3.
6. Subscription Periods
6.1. The Subscription Period shall be defined in the Framework Agreement. If a Subscription Period is not defined, it shall be deemed to cover a period of twelve (12) months from conclusion of the Framework Agreement, or upon activation of the Service, whichever occur first. At the end of a term, the Subscription will automatically renew for an additional Subscription Period, or longer periods when defined in an addition to the Framework Agreement, unless the Subscription is terminated in accordance with clauses 15-19.
6.2. The Subscription Periods are binding for both the Customer and Fiftytwo, meaning the Service and this SaaS Agreement cannot be terminated with effect during a Subscription Period, unless in case of cause for termination, cf. clauses 15-19.
7. Prices and Payment Terms
7.1. The Customer pays the Subscription Fees as agreed in the Framework Agreement under the terms of payment as stated therein.
7.2. If payment terms are not defined in the Framework Agreement, the Subscription Fees are invoiced as pre-payments on annual basis with payment terms net 30 days from date of invoice.
7.3. Invoices are sent by email to the Customer informed email address. If the Customer requests to receive a paper invoice, a fee of DKK 35.00 is charged per invoice.
7.4. All Subscription prices are subject to annual price regulation as an index-linked adjustment of three percent (3%), which shall take effect first time, one year following the initiation of the first Subscription Period, cf. clause 5.1. Fiftytwo reserves the rights to change the rate of price adjustment based on the development in the Danish net price index.
7.5. All amounts not paid at maturity shall be subject to a late payment service charge of one point eight percent (1.8%) per month or parts hereof on any overdue payment.
7.6. For any objections to an invoice, the Customer must assert its claim no later than eight (8) days form the invoice date.
7.7. The Customer's duty to make contractual payments remains in force irrespective of any Customer claims. If payment obligations are disputed, the Customer may elect to deposit the sum in dispute. If the parties have agreed on rights for the Customer to make payment by instalments, and the Customer is wholly or partly in default in paying an instalment, the payment obligation become accelerated and the full remaining sum due for immediate payment.
7.8. The Customer cannot make any sett-off in payments due to Fiftytwo.
7.9. All payments once received by Fiftytwo are non-refundable except in the case of overpayment which is found within three (3) years following the date of actual payment.
8. New Versions, Updates and Upgrades
8.1. Fiftytwo will provide new versions, updates, and upgrades at its discretion, and this may include amendments to the front-end and back-end design and changes of functions and functionalities, while Fiftytwo will not materially decrease the overall functionality of the Service. The downtime shall be minimum considering the contents of the version changes and Fiftytwo will aim to inform in advance by postings on the Service.
9. Support Services
9.1. Fiftytwo offers Support Services in form of Second Level Support and Third Level Support. The Customer must itself set up a service system for hotline service and other first level support to attend to user requests and troubleshooting.
9.2. All requests to Fiftytwo for Support Services must be made by Customer’s designated support Customer Contacts.
9.3. If a default is proven to be caused by other issues than defaults in the Service, Fiftytwo is entitled to charge an hourly rate for its Support Services.
10. Customer's Obligations and Restrictions
10.1. The Customer is obligated to inform Fiftytwo of its designated Customer Contacts and any changes hereto.
10.2. The Customer is responsible for the activities that occur on its Solution, and all security, both physical and digital within the Customer’s IT environment. The Customer is responsible for all IT installations connected to the Services, including the purchase of necessary hardware and software, adequate communication lines and network and access to network, VPN and VPN access for Fiftytwo's Support Service and other Fiftytwo consultants. It is the Customer’s risk to ensure backup of own data and to have precise and tested routines to easy restore of the Customer Data.
10.3. The Customer shall (a) ensure that the Service is used only in accordance with ordinary use and its intended purpose and with the terms of this SaaS Agreement, and ensure that its users are instructed accordingly, (b) prevent unauthorized access or use to the Solution and Service, and (c) prevent the Customer and/or its users from using the Service in a manner which could in any way harm Fiftytwo’s name, reputation, or goodwill, or in a manner which violates applicable laws or regulations.
10.4. In the event that Fiftytwo incurs liability to a third party due to the Customer’s actions, omissions, or data, the Customer shall indemnify Fiftytwo for all third-party claims, penalties, and reasonable costs.
10.5. Subject to applicable laws and the provisions of the SaaS Agreement, the Customer may not i) copy, publish, distribute, or otherwise make the Service available for others to copy, ii) amend, improve, modify or further develop the Service or any part hereof, iii) implement the Service or any party thereof into other software, platforms or solutions not approved by Fiftytwo, iv) create derivative works based on the Service or any features or functions therein, or iv) make or perform any form of reverse engineering, decompiling or disassembly of the Service and/or 52ViKING POS. The prohibitions stated in this clause 9.5 shall equally apply to Application and other Fiftytwo deliverables provided for the Service.
11. Confidentiality
11.1. A Party shall treat as confidential all Confidential Information of the other Party received pursuant to this Agreement. A Party shall not use the other Party’s Confidential Information for any purpose other than for the purpose of this Agreement, and a Party shall not without the other Party’s written consent, disclose the other Party’s Confidential Information to any person except to such employees and/or agents and/or contractors, who are bound by confidentiality, and who need to know for purpose of the Agreement.
11.2. The term “Confidential Information” includes information specifically designated as confidential or that would be understood to be confidential or proprietary by a reasonable person. As to Customer, Confidential Information includes login credentials for accessing the Services, and Customer Data. As to Fiftytwo, Confidential Information includes the features and functions of the Services that are not available to the general public via the public internet, including screen shots of the same, future product plans, any software documentation or specifications provided to Customer, the commercial terms, including pricing of this SaaS Agreement and any Framework Agreement (but not the mere existence of these agreements) audit, performance and security test results whether conducted by Fiftytwo or Customer, and any other proprietary, financial or business information supplied to Customer by Fiftytwo.
11.3. The Confidential Information shall not include any information which (a) is in or enters the public domain other than by a breach of this Agreement; (b) was in the lawful possession of the Party prior to the disclosure; and (c) is legally transmitted or disclosed by a third party without restrictions on disclosure. The Party shall have the right to disclose the other Party’s Confidential Information to the extent such disclosure is required under statutory requirements or orders from the courts or public authorities, provided the Party notifies the other Party before disclosing the Confidential Information, unless prohibited under applicable regulation or the court order.
11.4. Either Party shall upon termination of the Agreement immediately return or destroy all Confidential Information belonging to the other Party together with any property of the other Party being in the Party’s possession or under its control. Fiftytwo’s duty to return or destroy is subject to clause 18.5. A Party shall not retain documents or materials in any form of the other Party’s Confidential Information, except that a Party shall be entitled to keep, for its records, one electronic record for archival purposes to document its performance under the Agreement. The duty to return or destroy Confidential Information shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup, provided that such Confidential Information or copies thereof, shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein and shall be deleted in accordance with the routine deletion of technology backup.
12. Customer's Data
12.1. Customer Data will in general be stored into Customer’s own IT-environment. Any Customer Data stored into 52ViKING POS back-end in Fiftytwo cloud offering, belong exclusively to the Customer and the Customer has unlimited access to the data while using the Service. The Service includes applications for the Customer to transmit, in a structured format, all Customer’s Data into other Customer applied systems.
12.2. Fiftytwo shall treat the Customer Data stored in 52ViKING POS as Customer’s Confidential Information, cf. clause 10. The Customer accepts that Customer Data may be transferred to data centres made available for 52ViKING POS. Fiftytwo shall be entitled to access Customer’s Solution when required to provide the Service or Support Services, and Fiftytwo may afford access to its employees, agents, contractors, and sub-suppliers, who are bound by confidentiality, to the extend required by Fiftytwo for providing the Service and Support Services. The Customer grants to Fiftytwo a worldwide, non-exclusive, royalty-free, non-sublicensable (except to Fiftytwo’s sub-suppliers and consultants performing services on behalf of Fiftytwo) right and license to copy, use, display, modify, distribute, store, aggregate, or compile Customer Data for purpose of delivering the Service and the Support Services
12.3. The Customer is responsible for the accuracy, quality, and legality of the Customer Data and the means by which the data are acquired, transmitted, and stored on behalf of the Customer in connection with or relating to the Service.
12.4. The Customer guarantees that material and data uploaded to its Solution and in 52ViKING POS do not infringe third-party rights and do not contain material that may be offensive or violate applicable laws.
13. Data Privacy
13.1. Fiftytwo shall perform its duties as a data processor in accordance with the DPA. The Customer is responsible for the Customer Data are collected and processed by the Customer in compliance with Regulation (EU) 2016/679 on GDPR (“GDPR”) and applicable national privacy laws governing the Customer, including to meet data subject rights requests and the retention rules applied by the Customer.
13.2. The Customer is responsible for providing privacy notices to its users of the Services, and to provide and offer documentation and data subject rights, and to fulfil such other requirements as required under the GDPR and national regulation.
13.3. If the Customer asserts a potentially unlawful instructions to Fiftytwo to perform an act or omission, Fiftytwo may deny to follow the instruction and if Fiftytwo, without knowing that the instruction is unlawful, follows such instruction, Fiftytwo shall not incur liability towards the Customer, and the Customer shall indemnify and hold harmless Fiftytwo for any claim asserted by third parties arising or resulting from the instruction of the Customer.
14. Fiftytwo's Intellectual Property Rights
14.1. Fiftytwo reserves all rights, title, and interest in and to the Service, 52ViKING POS, the Applications and other Fiftytwo products offered, including all software, documentation, technology, knowhow, developments and future versions. These rights include all associated Intellectual Property Rights, except for third party components. Fiftytwo does not make software codes available to customers.
14.2. Customized Fiftytwo created software, and all copyrights and other Intellectual Property Rights therein, also belongs to Fiftytwo, unless otherwise agreed in writing in the agreement and terms for ordering the software. Fiftytwo may at its sole discretion make any customized created software available to other customers or third parties.
14.3. Except for the limited rights expressly granted with the Service, the Customer is not granted any other rights, including Intellectual Property Rights. The Customer shall notify Fiftytwo of any current or potential violation of Fiftytwo’s Intellectual Property Rights or unauthorized use of the Service of which the Customer becomes aware.
14.4. The Customer grants to Fiftytwo a royalty-free, worldwide irrevocable, perpetual, sublicensable and transferable license to copy, display, modify, distribute, create derivative works of, use, and incorporate into the Service any suggestions, recommendations, or other feedback provided by the Customer to Fiftytwo with respect to the Service.
15. Disclaimers
15.1. Except as expressly provided in the SaaS Agreement, Fiftytwo does not make any representations or warranties of any kind, whether express, implied (either in fact or by operation of law), statutory or otherwise, and Fiftytwo specifically disclaims all implied warranties, including any warranties of merchantability, fitness for a particular purpose, qualifications, accuracy, title and non-infringement to the maximum extent permitted by applicable law. Fiftytwo disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
15.2. Fiftytwo does not warrant the Services against breakdowns, errors, bugs, malfunctions, interruptions, or incidents of cyberattack.
15.3. The Services is a standard software solution, and Fiftytwo disclaims all liability for errors, loss, or damaged occurred as a result of the Customer’s use of the Services caused by event or actions which are not in compliance with Fiftytwo’s instructions, including if caused by lack of training of Customer’s personnel, lack of functionality due to Customer’s other software or hardware which impact on the Services, or changes to remedial actions instructed by Fiftytwo.
15.4. Fiftytwo does not accept any liability for the content of the Customer Data. The Service and 52ViKING POS must be applied for its intended purpose and ordinary usage, and Fiftytwo does not warrant nor shall incur liability for the Customer’s use. It is the sole responsibility of the Customer to verify and monitor its use of the Service against compliance with laws, rules, or regulations in the jurisdictions applicable to the Customer and its users.
15.5. Fiftytwo does not warrant, and Fiftytwo disclaims all liabilities for, the Customer’s use of Third Party Software and any results, functionality, compatibility, and reliability when integrated or interoperated with the Service.
15.6. Fiftytwo does not warrant, and Fiftytwo disclaims all liability for, availability, security, or functionality of the Customer’s IT systems and set-up, or data entries. The burden is upon the Customer to prove that a loss suffered by the Customer cannot be attributed to Third Party Software or Customer’s other IT systems, set-up, data entries, acts or omissions.
15.7. Fiftytwo’s duty of remedy shall not cover defects caused by fault in installations, integrations, maintenance and repair not performed by Fiftytwo or its agents, nor integrations with software and hardware carried out without the service of Fiftytwo.
16. Remedies
16.1. Following access to the Service and integrations into Customer’s IT environment, the Customer must review and test the Service and notify Fiftytwo immediately on any defaults. During the Subscription Period, the Customer must notify Fifytytwo, in writing of any claim of errors or defaults immediately and no later than ten (10) days from detection hereof.
16.2. Fiftytwo shall remedy errors and defaults in the Service, and such remedy shall be performed with undue delay. If the error is insignificant, the error may be remedied with the next version update. A default or error in the Service shall be deemed material only if it has effect on the functionality of the Service to receive payment or if it prevents the operation of the Service as a whole. A default in availability of registration or bookkeeping functions shall not be deemed material when the payment transaction has been registered in the Customer’s system or in the Service, and the default results in delay of recording, only.
16.3. Customers sole and exclusive remedy and Fiftytwo’s entire liability for a material default shall be as follows (i) Fiftytwo shall following the detection of the default, correct the default to the features and functionality in the Service so that it in all material and reasonable aspects performs with the same or similar functionality reasonably to be expected for the Service (including through workarounds) and, (ii) if Fiftytwo is unable to correct the default within a commercially reasonable time considering the impact of the material default, and following a Party’s receipt of written notice of breach, the Customer and/or Fiftytwo shall be entitled to terminate the Service and the Subscription and the Customer shall receive a refund of any prepaid, unused Subscription Fees applicable to the remaining portion of the Subscription Period following the effective date of termination.
16.4. The provisions of this Section 15 constitute the Customer’s sole remedies in the event of an error or defect in the Service.
17. Limitation of Liability
17.1. Fiftytwo shall only be liable under Danish laws for loss or damage if it is proven that the loss or damage is foreseeable and due to liable acts or omissions of Fiftytwo in connection with the performance of its duties under this SaaS Agreement. The provisions of this Section 16 with its limitations and exclusions are in effect to the maximum extent permitted by applicable law.
17.2. Stated or agreed times of delivery are indicative only, and Fiftytwo cannot be held liable for non-conformance with such times of delivery unless it has been expressly agreed.
17.3. In no event shall Fiftytwo be liable to the Customer, and its users of the Service, for any indirect, special, incidental, consequential, reliance, or punitive damages or loss, including but not limited to loss of profits, revenue, savings, time, or loss as a consequence of any other kind of business interruption, under any theory of recovery, including liability arising by way of indemnity, in contract or in tort, product liability or otherwise, and whether or not Fiftytwo has been advised of the possibility of such loss or damage.
17.4. The maximum aggregate liability of Fiftytwo towards the Customer, upon any claims whatsoever, arising out of this SaaS Agreement, the DPA, or the Service, regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, except in the case of gross negligence or wilful misconduct by Fiftytwo, shall not exceed but in any event be limited to the lesser of a maximum of the Subscription Fee for a period of 12 month preceding the event causing the claim or the sum of DKK twohundredfiftythousand (DKK 250,000.00).
17.5. Fiftytwo excludes any liability in relation to loss or damage of data or records of data or other information, unless this is due to the gross negligence or wilful misconduct of Fiftytwo.
17.6. Fiftytwo assumes product liability only to the extent that the product liability may not be contractually waived, but disclaims product liability on any other basis. The exclusions and limitations stated in this Section 16 shall also apply to any product liability, however, the maximum sum of aggregated liability shall not exceed DKK onehundredthousand (DKK 100,000.00). For any further liability incurred by Fiftytwo towards third parties for Customer’s use of the Service, the Customer must indemnify Fiftytwo against liability exceeding DKK 100,000.00.
18. Force Majeure Events
18.1. Fiftytwo shall not be liable to the Customer for delay or non-performance of its obligation or loss or damages if caused by an event which is unforeseeable, beyond the control of Fiftytwo, and cannot be remedied by the exercise of commercially reasonable efforts (“Force Majeure”). Force Majeure shall include, without limitations acts of God, perils of the sea or air, fire, flood, drought, explosion, terror, sabotage, and shall for this SaaS Agreement be deemed to include cybersecurity attacks, events of failure or delay in computer, tele-communications, internet service provider or hosting facility involving hardware, software, or power systems not within the Fiftytwo’s possession or reasonable control. Fiftytwo shall be relieved from its obligations (or part thereof) as long as performance is hindered due to Force Majeure.
18.2. If a Force Majeure event occurs, the Party affected must as soon as possible inform the other Party that a Force Majeure situation has occurred, and both Parties can then demand that any time schedules are renegotiated.
18.3. If the Force Majeure situation has lasted for more than 60 days, the Customer may terminate the Service and the SaaS Agreement with effect for all further deliveries following termination, cf. Clause 18.3.
19. Termination
19.1. A Party may terminate a Subscription according to the terms of the Framework Agreement, and if a termination notice is not defined (and except of a binding period), a Party may terminate a Subscription with a notice of six (6) months, however, not to take effect prior to the end of a pre-paid Subscription Period. For Customer’s termination of a Subscription, the termination period will be initiated upon Fiftytwo’s confirmation of receipt of the termination notice. The Customer may also terminate according to clauses 15 and 17 of this SaaS Agreement.
19.2. Fiftytwo will not be liable to the Customer for any refunds of Subscription Fees, unless otherwise stated in the terms of this SaaS Agreement.
19.3. The Customer may terminate the Subscription and SaaS Agreement if a material change to the terms and conditions of the SaaS Agreement to the detriment of the Customer comes into force and, if the Customer is not in breach of the SaaS Agreement, Fiftytwo will refund a pro-rate portion of the Subscription Fees for the remaining unused period of the Service. If the Subscription is terminated, all access rights to the Service is terminated, and the Customer must cease using the Service and 52ViKING POS.
19.4. Following termination of a Subscription, Fiftytwo has no obligation to store nor preserve Customer Data if stored into 52ViKING POS. To the extent Fiftytwo stores Customer Data, Fiftytwo will delete the data following a retrieval period of thirty (30) days, unless the Customer prior to termination has informed by written notice that the Customer will need a longer retrieval period or has instructed Fiftytwo to delete the Customer Data. Notwithstanding the above, and subject to the DPA and applicable privacy laws, and the Customer’s instructions otherwise, Fiftytwo reserves the right for operational and administrative purposes to maintain the Customer Data up to ninety (90) days following termination of the Service before Fiftytwo shall permanently delete all Customer Data held in the production environment, and Fiftytwo will ensure that Customer Data included in system back-ups on applied servers are stored in encrypted form where it may be held up to ninety (90) days before deleted pursuant to Fiftytwo’s then-current back-up deletion procedures. In case of disputes, Fiftytwo may keep the Customer Data in the system back-up if reasonably required to protect Fiftytwo’s position. For any re-activation or retrieval of data following the retrieval period and before deletion, the Customer must enter into a new Framework Agreement with Fiftytwo.
19.5. The obligations of the Parties under this SaaS Agreement that by their nature would continue beyond termination (including but not limited to use restrictions, liability limitations, confidentiality, Intellectual Property Rights, choice of laws and venue) shall survive and continue to be in effect after a termination of the SaaS Agreement.
20. Termination for Customer's Breach
20.1. In the event that the Customer is in material breach of the terms of this SaaS Agreement, and the Customer has not remedied within seven (7) days following receipt of written notice, Fiftytwo may, at its discretion, suspend or terminate the Service to the Customer
20.2. Defaults in payments due to Fiftytwo shall always be deemed a material breach of Customer. Equally, defaults in Customer’s security requirements required for use of the Service shall be deemed a material breach.
20.3. Suspension or termination of the Service will not relieve the Customer of its payment obligation.
20.4. Fiftytwo has the right to invoice a fee of DKK onehundred (DKK 100.00)for each payment notice, and if the Service has been suspended or terminated, Fiftytwo may, at its option, against an additional set-up fee of up to DKK twentyfivethousand (DKK 25,000.00), reinstate access to the Service following receipt of all payments due, including reminder fees, and accrued costs of debt collection and interests.
20.5. Notwithstanding the above, Fiftytwo may at its discretion suspend or terminate the Service immediately, without notice, in case of the Customer’s misuse of the Service or 52ViKING POS, including for unlawful acts or omissions, abuse, misappropriation or infringement of the rights of Fiftytwo or third parties. The terms in clause 18.5 on termi-nation and deletion of Customer Data shall apply. Fiftytwo shall be entitled to claim damages in accordance with the general principles of Danish laws.
21. Marketing
21.1. Fiftytwo is entitled in its own marketing material to include the Customer's name on its reference list and, upon a prior agreement with the Customer, to describe the Customers results obtained from using the Service.
22. Restriction on Assignments
22.1. The Subscription is available for the legal entity of the Customer, and only employees or agents (the legitimate users) of the Customer may access the Service for the Customer’s usage. The Service is non-transferable, and the Customer may not assign, sell, sub-license, rent, lease, lend or make available the Service to third parties without a prior written agreement with Fiftytwo. Any assignment or transfer in violation of this Section 21 is void. The SaaS Agreement shall terminate if the Customer is subject to a change of control giving a competitor of Fiftytwo control of the Customer. Otherwise, a change of control of the Customer shall not affect the binding effect of the SaaS Agreement.
22.2. Fiftytwo may assign this SaaS Agreement and its performance of Service and Subscriptions to an affiliate or a successor to all or substantially all of the business or assets to which the SaaS Agreement relates, whether by sale of assets, merger, reorganization, a change of control or otherwise.
23. Laws and Venues
23.1. This SaaS Agreement and any supplementary agreements hereunder between the Customer and Fiftytwo are governed by Danish laws and regulations, and shall be construed and enforced in accordance with these laws and regulations, excluding its choice of law rules. The Regulation (EU) 2016/679 on GDPR takes direct effect into Danish law.
23.2. Each Party will use commercially reasonable efforts to settle all matters in dispute amicably, and a Party may always convene a meeting with the participation of a manager, or a representative appointed by the manager, from each Party.
23.3. Any dispute, claim, or controversy arising out of or in connection with the SaaS Agreement, including its existence, validity, or termination, which cannot be solved amicably by the Parties, shall be finally settled before the Danish Institute of Arbitration in accordance with its Rules of Arbitration. The seat of the arbitration shall be in Copenhagen, Denmark, and the proceeding shall be conducted in the English language, unless otherwise agreed by the Parties. For any disputes with a total value of claims not exceeding DKK one (1) million, the tribunal shall consist of one sole arbitrator appoint under the Rules of Arbitration. All proceedings, judgements and awards shall be confidential. The judgement on awards may be enforced in any court having jurisdiction over the Party against whom the judgement is sought enforced.
23.4. Notwithstanding the above, each Party acknowledges that due to the nature of the SaaS Agreement and the Service, any actual or threatened breach of the SaaS Agreement, or any unauthorized use of the Service and/or 52ViKING POS, may cause immediate and/or irreparable injury or harm and, therefore, a Party shall be entitled to seek injunctive relief in any jurisdiction to enforce its intellectual property rights.
24. Effective Date and Changes to the Terms
24.1. Fiftytwo may modify the terms and conditions pursuant to this SaaS Agreement with one (1) month notice after such modifications have been posted on the Fiftytwo website. It is the Customer’s obligation to keep up to date on changes to the terms as posted on the Fiftytwo website.
24.2. Notwithstanding the above, if the terms are materially changed to the detriment of the Customer, Fiftytwo must provide a notice of not less than thirty (30) days to the Customer Contact, and the Customer has the right to terminate in writing the Subscription and the SaaS Agreement. Use of the Service after the change of the terms has come into force constitutes acceptance of such changed terms.
24.3. This SaaS Agreement applies to all purchases and renewals of Subscriptions as of 15 May, 2023. Previous versions of the SaaS Agreement and related Framework Agreements are available in the overview found on the Cutomer’s portal with Fiftytwo.
On-premise
Valid from May 1, 2020
1. On-premise agreement
1.1. These general terms and conditions (hereinafter referred to as the Terms) specify the terms and conditions for Fiftytwo’s supply of Products, Services and Subscriptions as specified in the Agreement and apply unless otherwise agreed in writing between Fiftytwo A/S (CVR no. 24784010) and consolidated companies (hereinafter referred to as Fiftytwo) and the Customer irrespective of the Customer's residence.
1.2. The Terms have been adopted by the Customer if the Terms have been attached to an offer/order confirmation from Fiftytwo, or if the offer refers to the Terms and the offer has been accepted by the Customer, or if the Customer has otherwise accepted the Terms. Even if Fiftytwo makes no subsequent reference to the Terms in offers, order confirmations, agreements or other correspondence, then the Terms apply to any trading.
1.3. If the Terms have been deviated from, this must be specified in the Agreement.
1.4. The Agreement replaces all prior oral and written agreements between the parties, such as order confirmations, purchase orders, emails etc. relating to the Agreement.
2. Definitions
2.1. Customer means the party that accepts Fiftytwo's offer or otherwise enters into an Agreement with Fiftytwo.
2.2. Party means the two parties – Fiftytwo and the Customer, respectively – who have entered into an Agreement.
2.3. Agreement means the offer accepted by the Customer for delivery of Products and/or Services and/or Subscriptions or the contract that has been signed by both parties, either in the physical or digital form.
2.4. Appendix means the sub-document to the Agreement, which together with the Agreement forms the contractual basis for the Delivery.
2.5. Change / Change Order means a change to the Agreement, which needs to be approved by the Parties in writing. A Change / Change Order only constitute a Change, if a Change is agreed in relation to finances, scope, performance of requirements, changes to the time schedule, or in relation to changes to other terms of the Agreement
2.6. Product(s) mean Unit(s), installed Software and access to and use of online services.
2.7. Unit(s) means e.g. Point-Of-Sale (POS) terminals, payment card terminals, Self-Check-Out (SCO) terminals, hand-held terminals, mobile phones and other equipment which can also be termed hardware.
2.8. Software means standard applications delivered as a software licence or as a program/an app by Fiftytwo or a third party for installation in the Customer's Unit(s). Further, Software can be delivered as customer-specific adaptations for standard software developed by Fiftytwo or a third party.
2.9. Service(s) mean one or more individual tasks performed as programming tasks or consultancy assistance carried out by one or more employees of Fiftytwo and invoiced according to actual time consumption or at a fixed price.
2.10. Delivery means a delivery containing Products and/or Services.
2.11. Project means Delivery of several Services and/or Products.
2.12. Solution means the total Delivery which meets the Customer's requirements for the wanted Solution, and thereby form the outcome of the Project.
2.13. Subscription means an agreement between Fiftytwo and the Customer on ongoing access to installed Software or an online service for a period agreed in advance and where the Customer pays Fiftytwo on an ongoing basis for this access on specific terms.
2.14. Receipt means that the Customer has been given the Product in their possession either by the Product having been delivered to the Customer or collected by the Customer or through the Product having been made available to the Customer after the Supplier has carried out the installation and run-in of the Product. If an actual test has been agreed, e.g. a test on completion or a user acceptance test of the Product, then Receipt is calculated from the time when the test has been approved by the Customer/passed by Fiftytwo.
2.15. Working Day means Monday to Friday except for public holidays, 24 December, 31 December and Constitution Day.
2.16. Requirements Specification means the document which adequately and exhaustively describes the Customer’s requirements for functions in software and the total Solution. Fiftytwo may also refer to the Requirements Specification as a Functional Requirements Document (FRD).
3. Contractual framework and contents
3.1. Offers made by Fiftytwo are only binding on Fiftytwo if corresponding acceptance has been received by Fiftytwo within eight days after the offer was made to the Customer unless other time for acceptance has been stated in the offer.
3.2. An offer/order confirmation concerning Products not found at Fiftytwo's own warehouse has been given subject to providing the said Products. If the Products cannot be provided, Fiftytwo may recall the offer given and/or cancel the order confirmation made without this entitling the Customer to make claims of any nature against Fiftytwo.
3.3. The Customer and Fiftytwo have agreed that Fiftytwo has retention of title to the Products delivered, which will become the Customer's property once the full purchase price has been paid.
3.4. In case of Fiftytwo's repossession of the Products delivered, the Customer must compensate any loss and all the costs that may incur on Fiftytwo as a result of the repossession.
3.5. If the Customer is going to lease Products, a binding separate agreement must have been made to that effect with the leasing company, accepted by Fiftytwo, before delivery to the Customer takes place. In such case, the Customer pays separately for marking of Products so that it clearly appears that they belong to the leasing company.
4. Performance of the job
4.1. Fiftytwo does not make dedicated named consultants available for the performance of a job. Fiftytwo reserves the right, from time to time, to replace consultants by other qualified consultants at Fiftytwo's discretion.
4.2. Fiftytwo can always choose to have a job performed by sub-suppliers without this affecting Fiftytwo's responsibility under this Agreement.
4.3. Fiftytwo only makes unpacking, mounting, preparation, installation and commissioning of a Delivery if that is clearly specified in the Agreement.
4.4. Products that are not part of Fiftytwo's product range (third-party products), but have been ordered by the Customer, and Products which are specifically put together for the individual Customer – including Products purchased for a specific Customer – are not credited nor accepted for return.
4.5. All other return takes place at Fiftytwo's return terms applicable from time to time.
4.6. Fiftytwo has the right to replace Products by other Products of the same quality as the initially agreed Products if the Customer is immediately informed in writing of such replacements and on the condition that it is Products where it is generally not vital to the Customer that the Product is from a specific manufacturer. Fiftytwo is also entitled to make small changes to Deliveries where deemed technically necessary.
4.7. Fiftytwo makes reservations as to construction and/or design changes before the time of delivery commences and during the period of more deliveries, and will as far as possible inform the Customer about such construction and/or design changes through customer events or via direct communication.
4.8. If Products require a special description for the purpose of installation, connection, operation and/or maintenance, Fiftytwo will provide the Customer with such descriptions no later than at the time of delivery. Fiftytwo can demand that such description is treated confidentially.
4.9. If Fiftytwo is going to install the Product delivered in compliance with the manufacturer's guidelines, this must have been expressly agreed. For such installation, Fiftytwo charges Fiftytwo's applicable hourly rates from time to time unless otherwise agreed. Fiftytwo’s installation does not postpone the time of the passing of the risk, see section 5 or the due date for payment of the Products delivered, see section 9.
4.10. Fiftytwo is not obliged to surrender the Products' source code to the Customer or make any deposit thereof.
5. Delivery
5.1. Delivery of Units takes place at the Customer at the place designated by the Customer. The Customer is responsible that the place designated by the Customer is suited to take delivery of Units, including that the Units are stored adequately.
5.2. Delivery of Services may take place at both the Customer and Fiftytwo or at a third party.
5.3. Delivery of Software can either take place by pre-installation by Fiftytwo of the Software, that the Customer can download the Software, or that Fiftytwo grants the Customer access to online services.
5.4. Physical Products are sent from Fiftytwo's warehouse – or the warehouse of Fiftytwo's sub-supplier – to the delivery address stated by the Customer with delivery at the location designated by the Customer. If the Customer has failed to designate a place of delivery, delivery with releasing effect on Fiftytwo can take place at the Customer's reception area.
5.5. Delivery is made as soon as possible taking due care of delivery times of Fiftytwo's sub-suppliers. Fiftytwo is thus entitled to make successive delivery and invoicing.
5.6. The risk of Products passes to the Customer on delivery.
5.7. Agreed time of delivery is considered to have been met when the Customer, before expiry of the deadline for delivery, has received the Products or had the Services delivered, respectively. If the Customer has made a wish for changes or supplement to the Delivery, the time of delivery is postponed by the period made necessary by the change or the supplement.
5.8. If a specific delivery date has been agreed, and Fiftytwo fails to deliver on time, there is delay. If the Customer wants to assert the delay, the Customer must first inform Fiftytwo about the wish for a new, reasonable time of delivery. If delivery has not taken place before expiry of the reasonable time limit, the Customer is entitled to cancel the purchase. If such reasonable time limit has not been notified to Fiftytwo within two days of the delay, the Customer forfeits its right to cancel, and Fiftytwo must then deliver as soon as possible.
6. Customer's obligations
6.1. The Customer's active participation is of vital importance to a successful Delivery.
6.2. The Customer must inform Fiftytwo about all matters of importance to the successful execution of the Delivery. The Customer must also contribute to the planning of work and the allocating of own resources to the extent necessary at the agreed/necessary times, so that Services and/or Products can be delivered as agreed.
6.3. The Customer is responsible for IT installations, including the purchase of necessary hardware and software, adequate communication lines and network and access to network, VPN and VPN access for Fiftytwo's consultants etc. and that backup has always been made of own data and to have precise and tested routines so that the Customer's data can easily be restored.
6.4. The Customer is responsible for all security, both physical and digital.
6.5. To the extent that Fiftytwo deems it necessary for the successful performance of the Delivery, the Customer must, at its own expense, give Fiftytwo's consultants secure access to the Customer's IT installations and databases, and make the necessary and lawful workplaces equipped with IT installations, communication facilities etc. available according to the consultants' detailed instructions.
6.6. The Customer must familiarise itself thoroughly with the terms on which all third-party products are delivered.
6.7. The Customer must pay for the additional time used by Fiftytwo as a result of the Customer's failure to participate and the extra costs incurred by Fiftytwo as a result of the Customer's failure to participate, including costs for storage and unsuccessful transportation. The Customer's failure to participate releases Fiftytwo from liability
7. Remuneration
7.1. All prices include packaging and customs duty for Denmark, but are exclusive of costs for freight, transaction fees in connection with credit card payment, VAT and any other public taxes. Freight costs will depend on the extent of the order and place of delivery. The transaction fee will depend on the extent of the order and type of card. For deliveries on pallets, a separate environment handling fee is charged.
7.2. Remuneration for consultant assistance can be based on commenced hours, days, weeks or a fixed price. The remuneration is invoiced if no fixed price has been agreed, according to time spent according to Fiftytwo's price list applicable from time to time, whether or not the Agreement may estimate time consumption. Transportation costs and other disbursements in relation to consultancy assistance are calculated individually on a time basis, see section 8.
7.3. In the events where Products are to be serviced, consultancy assistance is given on the assumption that the Products have been correctly mounted and installed, and that no changes have been made to them.
7.4. Generally, Fiftytwo does not provide assistance in connection with error detection and/or error correction in the Customer's third-party products, including Products that may be used to carry out the Delivery. However, at the Customer's request Fiftytwo can assist with error detection and 'work-around' to thus avoid or reduce the Customer's nuisances. Unless specifically agreed, this work is settled according to time spent according to Fiftytwo's price list applicable from time to time.
7.5. Up to and including the date of delivery, Fiftytwo is entitled to adjust the prices in compliance with changes to exchange rates, purchase prices, customs duties, freight and insurance prices or other matters that are beyond Fiftytwo's control.
7.6. Future prices can always be changed by Fiftytwo at one month's notice to the first day of any month.
7.7. Fiftytwo makes reservations in relation to items sold out and price errors and delivery problems.
7.8. If Fiftytwo considers it necessary, or if the Customer wants work performed outside standard working hours (working days 08:00-16:00), the following applies: The work is invoiced with a supplement at 50% of the hourly rate in the time period 16:00-19:00 and with a supplement of 100% in the time period 19:00-08:00. Work performed on public holidays and in the period from Friday at 19:00 to Monday at 08:00 is invoiced with a supplement of 100%.
8. Costs for transportation and stays
8.1. Costs for consultants' transportation, accommodation and meals in connection with the performance of the work are invoiced separately under section 7.2 & 9, perhaps specified with appendices by prior agreement.
9. Invoicing and payment
9.1. Unless otherwise agreed, Fiftytwo invoices the Customer for Services on the first working day of any month, the invoice date being the last working day of the prior month. If the Agreement specifies a fixed price for a job, invoicing is made according to the payment schedule.
9.2. Products are invoiced on delivery.
9.3. Subscriptions are invoiced in advance on a semi-annual basis and may always be terminated in writing by the Customer at one month's notice to the end of a subscription period. The Subscription is considered to have been finally terminated once Fiftytwo has confirmed receipt of the termination. The Subscription runs from when the Subscription is made and six months ahead after which the Subscription is automatically renewed each six months by a new subscription period of six months' duration. Subscriptions ordered erroneously will not be reimbursed. The price applicable from time to time for any hosting of the Customer's solution is index-linked by 3% once a year. The index-linking is automatically added to the Agreement one year after the Subscription has been taken out. Fiftytwo reserves the right to change this rate on an ongoing basis according to the development of the net price index.
9.4. Payment terms are 30 days net.
9.5. If the Customer wants to object to a submitted invoice, this must be made no later than eight days from the invoice date.
9.6. If the Customer fails to pay on time, Fiftytwo is entitled to stop deliveries until advance payments take place or provision of security is made. If advance payment or provision of security is not made within a time limit set out by Fiftytwo, Fiftytwo is entitled to cancel the purchase.
9.7. The Customer's duty to make payments on time remains irrespective of any complaint made, or in the alternative the Customer must deposit the purchase price. The Customer is not entitled to make any off setting. If the parties have entered into an agreement on payment in instalments, and the Customer is wholly or partly late in paying an instalment, the full remaining debt falls due for payment immediately.
9.8. In case Fiftytwo chooses to terminate the Agreement as a result of the Customer's breach, Fiftytwo is entitled to compensation for value loss corresponding to at least 30% of the agreed purchase price.
9.9. In the absence of other agreement, payment must have been made no later than 4 days after the invoice date. In case of late payment, a monthly default interest rate of 1.8% is added on the amount owing from time to time, calculated from the due date.
9.10. Invoices are sent by email to the extent possible. If the Customer wants to receive a paper invoice, a fee of DKK 35 is charged per invoice.
10. Duty of inspection and complaints
10.1. The complaint must be made in writing with a specification of what the complaint is about.
10.2. Unless a shorter time limit follows from third-party terms, complaints received by Fiftytwo later than 14 days after delivery will be rejected since the complaint has not been made in due time in such case. The Customer accepts that if Fiftytwo is not able to complain to a sub-supplier/producer, then the Customer cannot complain to Fiftytwo.
Complaints in relation to Services
10.3. The Customer is obliged to inspect, evaluate and test the Service delivered on completion of each task or partial task. Errors or defects ascertained in such inspection must immediately and without undue delay be given notice of to Fiftytwo with a message that a complaint is made.
10.4. If the Service delivered by Fiftytwo is to be termed defective, and this ought not to have been ascertained by the Customer in connection with the Customer's inspection, the Customer can rely on this. In this situation, the complaint must be made immediately after the discovery of the defect and no more than three months after completion of the task.
10.5. In case of defects in the Service, Fiftytwo may choose if it wants to redeliver or make subsequent delivery of the defective Service, or if the Customer should be given a proportionate reduction of the agreed purchase price. The Customer cannot rely on any other remedies for breach against Fiftytwo.
Complaints in relation to Software
10.6. The terms of the licence terms associated with the Software apply to Software. Fiftytwo undertakes no liability for third-party software, but in that case refers to the Producer's terms of complaints/warranty and remedy of errors and defects.
10.7. The Customer is obliged to inspect the Software delivered on Receipt. In case of errors or defects in the Software delivered by Fiftytwo's sub-suppliers or a third party, the Customer must immediately and without undue delay maintain the defect to the producer. Fiftytwo can assist the Customer with this. Unless specifically agreed, this work is settled according to time spent at Fiftytwo's prices applicable from time to time. In case of errors or defects in the Software delivered by Fiftytwo, the Customer must immediately and without undue delay maintain the defect to Fiftytwo.
10.8. A defect is not considered to exist if the Customer has used the delivered Software erroneously or if the Customer or a third party has made changes to or had made remedial action to the Software delivered without Fiftytwo's consent. Fiftytwo's responsibility does not include
10.8.1. Errors occurred as a result of the Customer's use of the Fiftytwo software in connection with other equipment and Software, which does not directly or indirectly influence the function of the Software,
10.8.2. Errors occurred as a result of changes to or remedial action to the Software not made in compliance with Fiftytwo's instructions,
10.8.3. Errors occurred as a result of the Customer's lack of training or use of the Software in another way than stipulated in the delivered documentation, or in case of neglect on the part of the Customer or a third party or as a result of other circumstances which are outside Fiftytwo's control (force majeure).
10.8.4. Restrictions to the functionality of the Fiftytwo software, or development caused by the Customer's loading of program code or other software etc. which impacts the items delivered by Fiftytwo.
10.9. If Fiftytwo ascertains that the Software which is complained of is free from defects, Fiftytwo is entitled to invoice the Customer for costs defrayed by Fiftytwo in connection with the Customer's complaint.
Complaints in relation to Units
10.10. For a Unit, the specifications of the documentation of the Unit apply.
10.11. The Customer is obliged to inspect the Unit delivered on Receipt. If the Customer ascertains or ought to have ascertained that the delivered Unit has defects, the Customer must immediately, and without undue delay, claim the defect to Fiftytwo. In case of non-visible defects occurred during transportation, the Customer must claim the defect within five working days reckoned from Receipt. If the Customer fails to complain in due time, the Customer's right to maintain the defect ceases to exist.
10.12. A defect is not considered to exist if the Customer has used the delivered Unit erroneously, including having set aside guidelines from Fiftytwo or Fiftytwo's sub-suppliers, or if the Customer or a third party has made changes to or had made remedial action to the Unit delivered without Fiftytwo's consent.
10.13. If Fiftytwo ascertains that a Unit which is complained of is free from defects, Fiftytwo is entitled to invoice the Customer for costs defrayed by Fiftytwo in connection with the Customer's complaint.
10.14. In case of justified and timely complaints of a delivered Unit, Fiftytwo is entitled within a reasonable time to redeliver or remedy at its own discretion. If Fiftytwo redelivers or remedies in time, the Customer is not entitled to cancel the Agreement or claim compensation as a result of the defect. Fiftytwo is entitled to take remedial action/make redelivery one or more times.
10.15. If redelivery or remedy does not take place in time, the Customer may only cancel the Agreement or demand a proportionate price reduction.
10.16. A sold Unit is only taken back according to prior written agreement for return with Fiftytwo's sales department. It must be specified in the return agreement which Unit can be returned, the condition of the Unit and at which price the Unit is credited. The Customer undertakes to enclose a copy of the return agreement for each package which is returned. Fiftytwo reserves the right to return a Unit to the Customer in the absence of any enclosed return agreement. All return is made at the Customer's expense and risk.
11. Warranty
11.1. Fiftytwo warrants that Deliveries are made with care and skills that live up to a general professional standard in the area.
11.2. Products delivered under the Agreement are subject to Fiftytwo's sub-suppliers' or manufacturers' terms as well as Fiftytwo's licence terms, including as regards warranties, warranty periods and time limits for complaints and the terms for that. Fiftytwo issues no specific warranties or rights for delivered third-party products, and the Customer cannot obtain a better right than if the Customer had purchased the Product directly from the sub-supplier or the manufacturer.
11.3. Information from Fiftytwo or Fiftytwo's sub-suppliers/manufacturers concerning the use, weight, dimensions, capacity and technical data of the Products in catalogues, brochures, advertisements etc. can only be considered approximate and cannot be deemed to be guaranteed/ warranted. Fiftytwo does not warrant that the delivered Product meets the Customer's need or intended use unless Fiftytwo has expressly given such specific warranty or advised the Customer to choose a certain product.
12. Liability in damages
12.1. Fiftytwo can only be held liable for the Customer's direct losses. Fiftytwo's total liability for direct losses can never exceed DKK 250,000.00. The limitation does not apply if the loss has been inflicted on the Customer by Fiftytwo's grossly negligent or intentional actions or omissions or as a result of the infringement of third-party rights by Fiftytwo Software.
12.2. Fiftytwo cannot be held liable for indirect losses, including lost profit, goodwill, financial benefits, and targets missing or not obtained, loss of production, loss of data, loss as a result of the inability of Fiftytwo's Deliveries or Subscriptions to be used as assumed, or loss as a consequence of the fact that an agreement with a third party ceases to exist or is breached.
12.3. Fiftytwo cannot be held liable for any matters concerning third-party Products.
12.4. In the mutual relationship between the Customer and Fiftytwo, Fiftytwo's product liability is limited to DKK 100,000 whether or not the claim is made contractually or non-contractually. The Customer must indemnify Fiftytwo for claims in excess of DKK 100,000. To the extent that Fiftytwo can make a larger claim against sub-suppliers or producers, the Customer becomes a party to these claims, and Fiftytwo undertakes, where necessary, at the Customer's account and risk to make the claim against sub-suppliers and producers.
12.5. If Products delivered by Fiftytwo form part of the Customer's own Products or Services, then Fiftytwo can only be held liable for losses directly caused by Fiftytwo's Delivery if Fiftytwo has expressly approved the way in which the Product forms part of the Customer's own Products or Services, and the terms for approval have been met.
12.6. Fiftytwo's liability in damages for loss caused by Software developed by Fiftytwo is regulated in the license terms attached to the Software. If such license terms do not exist, the liability of the Software is subject to these general terms and conditions.
12.7. Stated or agreed times of delivery are indicative only, and Fiftytwo cannot be held liable for non-conformance with such times of delivery unless it has been expressly agreed.
13. Rights
13.1. Where nothing else has been agreed in writing between the parties, the Customer acquires a non-exclusive, non-transferable and time-unlimited right of use of the result of the Services delivered by Fiftytwo. Any right, including any intellectual property right in material, including copyright, prepared for the Customer in connection with the performance of a job, belongs to Fiftytwo.
13.2. Fiftytwo may freely use the developed item or parts thereof and the knowledge accumulated during the performance of the work, for the use by other customers.
13.3. The Customer acquires the ownership of a Unit, unless otherwise specified in the Agreement, but see section 5.
13.4. The Customer acquires the specified rights in Software as described in the licence terms of the Software.
13.5. If the Agreement covers software development made by Fiftytwo specifically for the Customer, the Customer acquires a non-transferable and non-exclusive right of use in the developed Software.
13.6. The right of use in Software is limited to the number of users/licences that the Customer pays for. If the number of users is not specified for the installed software, the right of use only applies to the Unit on which the Software is installed or will be installed on delivery.
13.7. The Software must be used in compliance with the instructions in manuals, guidelines and similar documentation material. Otherwise the licence terms for the said software apply to the use of software, and as regards services the terms of use for the said service.
13.8. Fiftytwo is entitled to transfer its rights and obligations to consolidated companies.
14. Termination of Agreement
14.1. As regards Services, an Agreement can be terminated by both parties at 30 days' notice.
14.2. If an Agreement that includes Services is terminated by Fiftytwo, it can be agreed specifically that Fiftytwo must conclude specific assignments against the Customer's payment of standard remuneration.
14.3. Until 10 working days before Services have been planned to be started, the Customer can terminate the Agreement against payment of 15% of the agreed price for the performance of the job, or if the price is not fixed, then 15% of the estimated total contractual sum. In case of termination until five working days before the agreed start time of the work, this fee will be 50%, and in case of termination later than three working days before planned assistance, the full sum is paid.
14.4. The Customer cannot terminate the Agreement as regards Products ordered by Fiftytwo from sub-suppliers, and which Fiftytwo cannot return to the sub-supplier without suffering a loss.
14.5. Subscriptions are taken out for six-month periods and are automatically taken out again for a new six-month period until Fiftytwo receives the Customer's written termination of the Subscription. The Customer may terminate the Subscription at 30 days' notice to the end of the subscription period, but no repayment will be made of any excess amount invoiced in advance for the Subscription in the remaining subscription period.
14.6. Fiftytwo can always terminate a Subscription in writing at 30 days' notice. If Fiftytwo terminates a Subscription, the payment for the subscription for the remaining subscription period will be repaid to the Customer.
14.7. Inconvenience to other subscribers and material breach of the Agreement will be considered abuse. In all respects, Fiftytwo is the only party to determine the definition of whether 'abuse' exists. In case of abuse, Fiftytwo can cancel and close a Subscription without notice.
14.8. In case of the Customer's or Fiftytwo's material breach of their obligations under the Agreement, Fiftytwo or the Customer is entitled to cancel the Agreement without notice if the Customer or Fiftytwo fails to stop the breach without undue delay.
15. Marketing
15.1. Fiftytwo is entitled in its own marketing material to include the Customer's name on its reference list and perhaps, by prior agreement with the Customer, to describe the results obtained from the Delivery, with a short description.
16. Duty of confidentiality
16.1. Both parties warrant that they (including their employees and sub-suppliers) will treat the information received confidentially, in any respect. The duty of confidentiality yields to information obligations that may rest on the parties under mandatory, statutory provisions.
16.2. Both parties declare that they accept, from time to time, at the request of the other party, to return any document or other material that may have been handed out to them to the extent this will not prevent the proper performance of the Agreement.
17. Force majeure
17.1. None of the parties can be held liable for matters beyond a party's control and which cannot immediately be overcome (force majeure), including but not limited to, mobilization, war, riots, epidemics or pandemics, strikes, lockout, fire, natural disaster, unusual weather, currency or other financial restrictions, import and export ban or restrictions, stop of usual communication, interruption in or failure of energy supply and telecommunications, internal and external cyber-attacks, delivery problems or failure of sub-suppliers, long term illness of key employees, and the occurrence of similar force majeure of sub-suppliers.
17.2. If a force majeure event occurs, the party affected must as soon as possible inform the other party that a force majeure situation has occurred, and both parties can then demand that any time schedules are renegotiated.
17.3. If the force majeure situation has lasted for more than 60 days, each party may terminate the Agreement with future effect.
18. Disputes
18.1. If disputes arise between the parties in connection with the performance of the Agreement, each party can always convene a meeting with the participation of a manager, or a representative appointed by the manager, from each party.
18.2. Disputes that cannot be resolved at such a meeting must be determined according to Danish law before the ordinary Danish courts, Copenhagen being the venue.
52Unattended License Conditions
Valid from May 15, 2023
1. The SaaS-Agreement and Parties
1.1. This SaaS Agreement governs the Subscriptions to 52UNATTENDED and is a legally binding agreement between Fiftytwo A/S (CVR no. 24784010) including its consolidated companies (together “Fiftytwo”) and the Customer, irrespective of the Customer's residence.
1.2. The SaaS Agreement must be accepted with a purchase of a Subscription to 52UNATTENDED. The Customer must also accept the Fiftytwo Data Processing Agreement as an integrated part of the SaaS Agreement and the Subscription.
1.3. To subscribe for 52UNATTENDED, the Customer must conclude a Framework Agreement with Fiftytwo to define the Solution and the number of Subscriptions to meet the Customer’s need. The SaaS Agreement is an integrated part of the Framework Agreement, and when accepted, the Customer will also accept the SaaS Agreement and its terms and conditions. The Customer’s standard terms and conditions, or other deviations from the SaaS Agreement, shall not apply, and any deviations to the terms of the SaaS Agreement and/or its Schedules must be specified in the Framework Agreement.
1.4. The SaaS Agreement takes effect when the Customer has accepted the Framework Agreement or when starting using the Service, whichever occurs first.
2. Definitions
2.1. “52UNATTENDED” means the Fiftytwo Enterprise Access system software and/or other eco-systems operated through an internet based interface integrating into customers’ off-line or on-line systems;
2.2. “Application” means additional software offered by Fiftytwo and, through an interface, to be applied with 52UNATTENDED;
2.3. “Confidential Information” has the meaning set forth in clause 10;
2.4. “Customer” means the subscriber to the Service;
2.5. “Customer Contact” means designated and authorized contact persons with the Customer under the SaaS Agreement, to communicate with and receive notices from Fiftytwo, and to request Support Services;
2.6. “Customer Data” means the data input collected with Customer’s application of the Service, including financial or business information, and user data, including personal data; excluded from Customer Data is data on Customer delivered to Fiftytwo for concluding the Framework Agreement, and personal data collected by Fiftytwo as a data controller;
2.7. “DPA” means the Fiftytwo Data Processing Agreement integrated as a Schedule to the SaaS Agreement and the Subscription;
2.8. “Framework Agreement” means an offer to be accepted by the Customer for the Service and the Solution elected, and may include additional services provided by Fiftytwo; the SaaS Agreement is an integrated part of the Framework Agreement with the Framework Agreement taken highest priority in case of any conflict of terms;
2.9. “Intellectual Property Rights” means all intellectual property rights globally, whether registered or unregistered, including copyright, and rights in design, patents, trademarks and trade secrets, knowhow, technology, goodwill and all other categories of industrial and intellectual property rights;
2.10. “Party”/”Parties” means Fiftytwo and the Customer individually, and collectively.
2.11. “POS” a point of sales in Customer’s operations, such as a cash register, payment terminal or otherwise;
2.12. “POS Unit(s)” means e.g. Point-Of-Sale (POS) terminals, payment card terminals, self-check-out (SCO) terminals, hand-held terminals, mobile phones and other equipment applied for use of POS systems.
2.13. “SaaS Agreement” means this agreement with its Schedules;
2.14. “Schedules” means the DPA and any further schedules to the SaaS Agreement;
2.15. “Service(s)” means the right to access and use 52UNATTENDED, as well as the performance of 52UNATTENDED and Applications, as subscribed to by the Customer;
2.16. “Short Documentation” means a high-level description of 52UNATTENDED;
2.17. “Solution” means the Customer’s implementation of the Services and Applications into the Customer’s IT environment and the number of Subscription purchased by the Customer.
2.18. “Subscription” means purchase of the Service for a Subscription Period with automatic renewals unless unsubscribed or otherwise terminated, including the requirement that one Subscription must be purchased for each business entity or Unit to access and use 52UNATTENDED, cf. clause
2.19. “Subscription Fee” means the Customer’s payments for continuous use of the Service;
2.20. “Subscription Period” means the binding period for the Customer’s Subscription to the Service;
2.21. “Support Services” means service offered by Fiftytwo in form of Second Level Support (in-depth technical support to the Services) and Third Level support (error detection in the Services requiring developer-level engagement),
2.22. “Third Party Software” means software which are not
Fiftytwo created software, including third party platform services applied for usage of 52UNATTENDED.
2.23. “User Stories“ means technical specifications of 52UNATTENDED presenting variable set-up solutions to support the Services.
2.24. Expressions such as “including” and similar expressions, means “including, but not limited to”. References to “days” shall mean calendar days.
3. 52UNATTENDED
3.1. 52UNATTENDED is a standard generic software with optional standard settings of functionalities, and Fiftytwo may introduce extended versions for purchase. 52UNATTENDED is operated on an Azure platform and are made available as a Service to the Customer either as a cloud and/or a hybrid Service.
3.2. Fiftytwo offers Applications with additional features and functionalities, and Fiftytwo reserves the rights to offer the Applications against separate fees in addition to the Subscription Fee. Fiftytwo makes an interface to the Applications available on an “as-is” basis. The Applications may be offered as standard or customized solutions and may be subject to supplementary terms to this SaaS Agreement.
3.3. Fiftytwo provides Support Services, cf. clause 8. For any additional services, including implementation and integration services to Customer’s IT environment, the services will be offered under the terms of Fiftytwo General Terms and Conditions and additional delivery terms as accepted by Fiftytwo.
4. The subscription and the Service
4.1. The Customer has agreed to subscribe for the Service, and Fiftytwo makes the Service available to the Customer granting a limited, non-exclusive, and non-transferable right in designated territories to access and use 52UNATTENDED pursuant to this SaaS Agreement for each Subscription Period.
4.2. A Subscription must be maintained as long as the Customer applies the Service, and the Customer must have one (1) Subscription for each Customer brand name, one (1) Subscription for each store, and one (1) Subscription for each Door Access Unit. The rights to access and use 52UNATTENDED is limited to the paid Subscriptions as included into the Customer’s Solution.
4.3. 52UNATTENDED is a standard generic software, and the Service will perform as presented in accordance with good industry practice for hosting a professional internet-based software as a service under normal use and circumstances. Otherwise, the Service is provided “as-is” without any specific or implied warranties of any kind, and the Subscription is not contingent on the delivery of any future functionality or feature, unless otherwise agreed in writing by Fiftytwo.
4.4. To obtain the functionalities as presented in the Fiftytwo Short Documentation, the Solution must be implemented into the Customer’s IT environment and applied in accordance with instruction examples provided as User Stories. Fiftytwo does not take any responsibility for the Customer's customizing of the Solution or integrations of Third Party Software into the Customer’s Solution, unless delivered by Fiftytwo as additional services, cf. clause 3.3.
5. Subscriptions Periods
5.1. The Subscription Period shall be defined in the Framework Agreement. If a Subscription Period is not defined, it shall be deemed to cover a period of twelve (12) months from conclusion of the Framework Agreement, or upon activation of the Service, whichever occur first. At the end of a term, the Subscription will automatically renew for an additional Subscription Period, or longer periods when defined in an addition to the Framework Agreement, unless the Subscription is terminated in accordance with clauses 15-19.
5.2. The Subscription Periods are binding for both the Customer and Fiftytwo, meaning the Service and this SaaS Agreement cannot be terminated with effect during a Subscription Period, unless in case of cause for termination, cf. clauses 15-19.
6. Prices and Payment Terms
6.1. The Customer pays the Subscription Fees as agreed in the Framework Agreement under the terms of payment as stated therein.
6.2. If payment terms are not defined in the Framework Agreement, the Subscription Fees are invoiced as pre-payments on annual basis with payment terms net 30 days from date of invoice.
6.3. Invoices are sent by email to the Customer informed email address. If the Customer requests to receive a paper invoice, a fee of DKK 35.00 is charged per invoice.
6.4. All Subscription prices are subject to annual price regulation as an index-linked adjustment of three percent (3%), which shall take effect first time, one year following the initiation of the first Subscription Period, cf. clause 5.1. Fiftytwo reserves the rights to change the rate of price adjustment based on the development in the Danish net price index.
6.5. All amounts not paid at maturity shall be subject to a late payment service charge of one point eight percent (1.8%) per month or parts hereof on any overdue payment.
6.6. For any objections to an invoice, the Customer must assert its claim no later than eight (8) days form the invoice date.
6.7. The Customer's duty to make contractual payments remains in force irrespective of any Customer claims. If payment obligations are disputed, the Customer may elect to deposit the sum in dispute. If the parties have agreed on rights for the Customer to make payment by instalments, and the Customer is wholly or partly in default in paying an instalment, the payment obligation become accelerated and the full remaining sum due for immediate payment.
6.8. The Customer cannot make any sett-off in payments due to Fiftytwo.
6.9. All payments once received by Fiftytwo are non-refundable except in the case of overpayment which is found within three (3) years following the date of actual payment.
6.10. Overpayments are returned one to one no matter how long the amount have been in Fiftytwo’s possession and disregarded any inflation to the Danish Kroner unless the Danish Kroner during the possession time have undergone an official deflation and in that case the value of the deflation is calculated and deducted the returned amount.
7. New Versions, Updates, and Upgrades
7.1. Fiftytwo will provide new versions, updates, and upgrades at its discretion, and this may include amendments to the front-end and back-end design and changes of functions and functionalities, while Fiftytwo will not materially decrease the overall functionality of the Service. The downtime shall be minimum considering the contents of the version changes and Fiftytwo will aim to inform in advance by postings on the Service.
8. Support Services
8.1. Fiftytwo offers Support Services in form of Second Level Support and Third Level Support. The Customer must itself set up a service system for hotline service and other first level support to attend to user requests and troubleshooting.
8.2. All requests to Fiftytwo for Support Services must be made by Customer’s designated support Customer Contacts.
8.3. If a default is proven to be caused by other issues than defaults in the Service, Fiftytwo is entitled to charge an hourly rate for its Support Services.
9. Customer's Obligations and Restrictions
9.1. The Customer is obligated to inform Fiftytwo of its designated Customer Contacts and any changes hereto.
9.2. The Customer is responsible for the activities that occur on its Solution, and all security, both physical and digital within the Customer’s IT environment. The Customer is responsible for all IT installations connected to the Services, including the purchase of necessary hardware and software, adequate communication lines and network and access to network, VPN and VPN access for Fiftytwo's Support Service and other Fiftytwo consultants. It is the Customer’s risk to ensure backup of own data and to have precise and tested routines to easy restore of the Customer Data.
9.3. The Customer shall (a) ensure that the Service is used only in accordance with ordinary use and its intended purpose and with the terms of this SaaS Agreement, and ensure that its users are instructed accordingly, (b) prevent unauthorized access or use to the Solution and Service, and (c) prevent the Customer and/or its users from using the Service in a manner which could in any way harm Fiftytwo’s name, reputation, or goodwill, or in a manner which violates applicable laws or regulations.
9.4. In the event that Fiftytwo incurs liability to a third party due to the Customer’s actions, omissions, or data, the Customer shall indemnify Fiftytwo for all third-party claims, penalties, and reasonable costs.
9.5. Subject to applicable laws and the provisions of the SaaS Agreement, the Customer may not i) copy, publish, distribute, or otherwise make the Service available for others to copy, ii) amend, improve, modify or further develop the Service or any part hereof, iii) implement the Service or any party thereof into other software, platforms or solutions not approved by Fiftytwo, iv) create derivative works based on the Service or any features or functions therein, or iv) make or perform any form of reverse engineering, decompiling or disassembly of the Service and/or 52UNATTENDED. The prohibitions stated in this clause 9.5 shall equally apply to Application and other Fiftytwo deliverables provided for the Service.
10. Confidentiality
10.1. A Party shall treat as confidential all Confidential Information of the other Party received pursuant to this Agreement. A Party shall not use the other Party’s Confidential Information for any purpose other than for the purpose of this Agreement, and a Party shall not without the other Party’s written consent, disclose the other Party’s Confidential Information to any person except to such employees and/or agents and/or contractors, who are bound by confidentiality, and who need to know for purpose of the Agreement.
10.2. The term “Confidential Information” includes information specifically designated as confidential or that would be understood to be confidential or proprietary by a reasonable person. As to Customer, Confidential Information includes login credentials for accessing the Services, and Customer Data. As to Fiftytwo, Confidential Information includes the features and functions of the Services that are not available to the general public via the public internet, including screen shots of the same, future product plans, any software documentation or specifications provided to Customer, the commercial terms, including pricing of this SaaS Agreement and any Framework Agreement (but not the mere existence of these agreements) audit, performance and security test results whether conducted by Fiftytwo or Customer, and any other proprietary, financial or business information supplied to Customer by Fiftytwo.
10.3. The Confidential Information shall not include any information which (a) is in or enters the public domain other than by a breach of this Agreement; (b) was in the lawful possession of the Party prior to the disclosure; and (c) is legally transmitted or disclosed by a third party without restrictions on disclosure. The Party shall have the right to disclose the other Party’s Confidential Information to the extent such disclosure is required under statutory requirements or orders from the courts or public authorities, provided the Party notifies the other Party before disclosing the Confidential Information, unless prohibited under applicable regulation or the court order.
10.4. Either Party shall upon termination of the Agreement immediately return or destroy all Confidential Information belonging to the other Party together with any property of the other Party being in the Party’s possession or under its control. Fiftytwo’s duty to return or destroy is subject to clause 18.5. A Party shall not retain documents or materials in any form of the other Party’s Confidential Information, except that a Party shall be entitled to keep, for its records, one electronic record for archival purposes to document its performance under the Agreement. The duty to return or destroy Confidential Information shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup, provided that such Confidential Information or copies thereof, shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein and shall be deleted in accordance with the routine deletion of technology backup.
11. Customer's Data
11.1
Customer Data will in general be stored into Customer’s own IT-environment. Any Customer Data stored into 52UNATTENDED back-end in Fiftytwo cloud offering, belong exclusively to the Customer and the Customer has unlimited access to the data while using the Service. The Service includes applications for the Customer to transmit, in a structured format, all Customer’s Data into other Customer applied systems.
Customer Data will in general be stored into Customer’s own IT-environment. Any Customer Data stored into 52UNATTENDED back-end in Fiftytwo cloud offering, belong exclusively to the Customer and the Customer has unlimited access to the data while using the Service. The Service includes applications for the Customer to transmit, in a structured format, all Customer’s Data into other Customer applied systems.
11.2. Fiftytwo shall treat the Customer Data stored in 52UNATTENDED as Customer’s Confidential Information, cf. clause 10. The Customer accepts that Customer Data may be transferred to data centres made available for 52UNATTENDED. Fiftytwo shall be entitled to access Customer’s Solution when required to provide the Service or Support Services, and Fiftytwo may afford access to its employees, agents, contractors, and sub-suppliers, who are bound by confidentiality, to the extend required by Fiftytwo for providing the Service and Support Services. The Customer grants to Fiftytwo a worldwide, non-exclusive, royalty-free, non-sublicensable (except to Fiftytwo’s sub-suppliers and consultants performing services on behalf of Fiftytwo) right and license to copy, use, display, modify, distribute, store, aggregate, or compile Customer Data for purpose of delivering the Service and the Support Services
11.3. The Customer is responsible for the accuracy, quality, and legality of the Customer Data and the means by which the data are acquired, transmitted, and stored on behalf of the Customer in connection with or relating to the Service.
11.4. The Customer guarantees that material and data uploaded to its Solution and in 52UNATTENDED do not infringe third-party rights and do not contain material that may be offensive or violate applicable laws.
12. Customer's Data
12.1. Fiftytwo shall perform its duties as a data processor in accordance with the DPA. The Customer is responsible for the Customer Data are collected and processed by the Customer in compliance with Regulation (EU) 2016/679 on GDPR (“GDPR”) and applicable national privacy laws governing the Customer, including to meet data subject rights requests and the retention rules applied by the Customer.
12.2. The Customer is responsible for providing privacy notices to its users of the Services, and to provide and offer documentation and data subject rights, and to fulfil such other requirements as required under the GDPR and national regulation.
12.3. If the Customer asserts a potentially unlawful instructions to Fiftytwo to perform an act or omission, Fiftytwo may deny to follow the instruction and if Fiftytwo, without knowing that the instruction is unlawful, follows such instruction, Fiftytwo shall not incur liability towards the Customer, and the Customer shall indemnify and hold harmless Fiftytwo for any claim asserted by third parties arising or resulting from the instruction of the Customer.
13. Customer's Data
13.1. Fiftytwo reserves all rights, title, and interest in and to the Service, 52UNATTENDED, the Applications and other Fiftytwo products offered, including all software, documentation, technology, knowhow, developments and future versions. These rights include all associated Intellectual Property Rights, except for third party components. Fiftytwo does not make software codes available to customers.
13.2. Customized Fiftytwo created software, and all copyrights and other Intellectual Property Rights therein, also belongs to Fiftytwo, unless otherwise agreed in writing in the agreement and terms for ordering the software. Fiftytwo may at its sole discretion make any customized created software available to other customers or third parties.
13.3. Except for the limited rights expressly granted with the Service, the Customer is not granted any other rights, including Intellectual Property Rights. The Customer shall notify Fiftytwo of any current or potential violation of Fiftytwo’s Intellectual Property Rights or unauthorized use of the Service of which the Customer becomes aware.
13.4. The Customer grants to Fiftytwo a royalty-free, worldwide irrevocable, perpetual, sublicensable and transferable license to copy, display, modify, distribute, create derivative works of, use, and incorporate into the Service any suggestions, recommendations, or other feedback provided by the Customer to Fiftytwo with respect to the Service.
14. Disclaimers
14.1 Except as expressly provided in the SaaS Agreement, Fiftytwo does not make any representations or warranties of any kind, whether express, implied (either in fact or by operation of law), statutory or otherwise, and Fiftytwo specifically disclaims all implied warranties, including any warranties of merchantability, fitness for a particular purpose, qualifications, accuracy, title and non-infringement to the maximum extent permitted by applicable law. Fiftytwo disclaims all liability and indemnification obligations for any harm or damages caused by any third-party hosting providers.
14.2. Fiftytwo does not warrant the Services against breakdowns, errors, bugs, malfunctions, interruptions, or incidents of cyberattack.
14.3. The Services is a standard software solution, and Fiftytwo disclaims all liability for errors, loss, or damaged occurred as a result of the Customer’s use of the Services caused by event or actions which are not in compliance with Fiftytwo’s instructions, including if caused by lack of training of Customer’s personnel, lack of functionality due to Customer’s other software or hardware which impact on the Services, or changes to remedial actions instructed by Fiftytwo.
14.4. Fiftytwo does not accept any liability for the content of the Customer Data. The Service and 52UNATTENDED must be applied for its intended purpose and ordinary usage, and Fiftytwo does not warrant nor shall incur liability for the Customer’s use. It is the sole responsibility of the Customer to verify and monitor its use of the Service against compliance with laws, rules, or regulations in the jurisdictions applicable to the Customer and its users.
14.5. Fiftytwo does not warrant, and Fiftytwo disclaims all liabilities for, the Customer’s use of Third Party Software and any results, functionality, compatibility, and reliability when integrated or interoperated with the Service.
14.6. Fiftytwo does not warrant, and Fiftytwo disclaims all liability for, availability, security, or functionality of the Customer’s IT systems and set-up, or data entries. The burden is upon the Customer to prove that a loss suffered by the Customer cannot be attributed to Third Party Software or Customer’s other IT systems, set-up, data entries, acts or omissions.
14.7. Fiftytwo’s duty of remedy shall not cover defects caused by fault in installations, integrations, maintenance and repair not performed by Fiftytwo or its agents, nor integrations with software and hardware carried out without the service of Fiftytwo.
15. Remedies
15.1. Following access to the Service and integrations into Customer’s IT environment, the Customer must review and test the Service and notify Fiftytwo immediately on any defaults. During the Subscription Period, the Customer must notify Fifytytwo, in writing of any claim of errors or defaults immediately and no later than ten (10) days from detection hereof.
15.2. Fiftytwo shall remedy errors and defaults in the Service, and such remedy shall be performed with undue delay. If the error is insignificant, the error may be remedied with the next version update. A default or error in the Service shall be deemed material only if it has effect on the functionality of the Service if it prevents the operation of the Service as a whole. A default in availability of registration or bookkeeping functions shall not be deemed material.
15.3. Customers sole and exclusive remedy and Fiftytwo’s entire liability for a material default shall be as follows (i) Fiftytwo shall following the detection of the default, correct the default to the features and functionality in the Service so that it in all material and reasonable aspects performs with the same or similar functionality reasonably to be expected for the Service (including through workarounds) and, (ii) if Fiftytwo is unable to correct the default within a commercially reasonable time considering the impact of the material default, and following a Party’s receipt of written notice of breach, the Customer and/or Fiftytwo shall be entitled to terminate the Service and the Subscription and the Customer shall receive a refund of any prepaid, unused Subscription Fees applicable to the remaining portion of the Subscription Period following the effective date of termination.
15.4. The provisions of this Section 15 constitute the Customer’s sole remedies in the event of an error or defect in the Service.
16. Limitation of Liability
16.1. Fiftytwo shall only be liable under Danish laws for loss or damage if it is proven that the loss or damage is foreseeable and due to liable acts or omissions of Fiftytwo in connection with the performance of its duties under this SaaS Agreement. The provisions of this Section 16 with its limitations and exclusions are in effect to the maximum extent permitted by applicable law.
16.2. Stated or agreed times of delivery are indicative only, and Fiftytwo cannot be held liable for non-conformance with such times of delivery unless it has been expressly agreed.
16.3. In no event shall Fiftytwo be liable to the Customer, and its users of the Service, for any indirect, special, incidental, consequential, reliance, or punitive damages or loss, including but not limited to loss of profits, revenue, savings, time, or loss as a consequence of any other kind of business interruption, under any theory of recovery, including liability arising by way of indemnity, in contract or in tort, product liability or otherwise, and whether or not Fiftytwo has been advised of the possibility of such loss or damage.
16.4. The maximum aggregate liability of Fiftytwo towards the Customer, upon any claims whatsoever, arising out of this SaaS Agreement, the DPA, or the Service, regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, except in the case of gross negligence or wilful misconduct by Fiftytwo, shall not exceed but in any event be limited to the lesser of a maximum of the Subscription Fee for a period of 12 month preceding the event causing the claim or the sum of DKK twohundredfiftythousand (DKK 250,000.00).
16.5. Fiftytwo excludes any liability in relation to loss or damage of data or records of data or other information, unless this is due to the gross negligence or wilful misconduct of Fiftytwo.
16.6. Fiftytwo assumes product liability only to the extent that the product liability may not be contractually waived, but disclaims product liability on any other basis. The exclusions and limitations stated in this Section 16 shall also apply to any product liability, however, the maximum sum of aggregated liability shall not exceed DKK onehundredthousand (DKK 100,000.00). For any further liability incurred by Fiftytwo towards third parties for Customer’s use of the Service, the Customer must indemnify Fiftytwo against liability exceeding DKK 100,000.00.
17. Force Majeure Events
17.1 Fiftytwo shall not be liable to the Customer for delay or non-performance of its obligation or loss or damages if caused by an event which is unforeseeable, beyond the control of Fiftytwo, and cannot be remedied by the exercise of commercially reasonable efforts (“Force Majeure”). Force Majeure shall include, without limitations acts of God, perils of the sea or air, fire, flood, drought, explosion, terror, sabotage, and shall for this SaaS Agreement be deemed to include cybersecurity attacks, events of failure or delay in computer, tele-communications, internet service provider or hosting facility involving hardware, software, or power systems not within the Fiftytwo’s possession or reasonable control. Fiftytwo shall be relieved from its obligations (or part thereof) as long as performance is hindered due to Force Majeure.
17.2. If a Force Majeure event occurs, the Party affected must as soon as possible inform the other Party that a Force Majeure situation has occurred, and both Parties can then demand that any time schedules are renegotiated.
17.3. If the Force Majeure situation has lasted for more than 60 days, the Customer may terminate the Service and the SaaS Agreement with effect for all further deliveries following termination, cf. Clause 17.3.
18. Termination
18.1. A Party may terminate a Subscription according to the terms of the Framework Agreement, and if a termination notice is not defined (and except of a binding period), a Party may terminate a Subscription with a notice of six (6) months, however, not to take effect prior to the end of a pre-paid Subscription Period. For Customer’s termination of a Subscription, the termination period will be initiated upon Fiftytwo’s confirmation of receipt of the termination notice. The Customer may also terminate according to clauses 15 and 17 of this SaaS Agreement.
18.2. Fiftytwo will not be liable to the Customer for any refunds of Subscription Fees, unless otherwise stated in the terms of this SaaS Agreement.
18.3. The Customer may terminate the Subscription and SaaS Agreement if a material change to the terms and conditions of the SaaS Agreement to the detriment of the Customer comes into force and, if the Customer is not in breach of the SaaS Agreement, Fiftytwo will refund a pro-rate portion of the Subscription Fees for the remaining unused period of the Service. If the Subscription is terminated, all access rights to the Service is terminated, and the Customer must cease using the Service and 52UNATTENDED.
18.4. Following termination of a Subscription, Fiftytwo has no obligation to store nor preserve Customer Data if stored into 52UNATTENDED. To the extent Fiftytwo stores Customer Data, Fiftytwo will delete the data following a retrieval period of thirty (30) days, unless the Customer prior to termination has informed by written notice that the Customer will need a longer retrieval period or has instructed Fiftytwo to delete the Customer Data. Notwithstanding the above, and subject to the DPA and applicable privacy laws, and the Customer’s instructions otherwise, Fiftytwo reserves the right for operational and administrative purposes to maintain the Customer Data up to ninety (90) days following termination of the Service before Fiftytwo shall permanently delete all Customer Data held in the production environment, and Fiftytwo will ensure that Customer Data included in system back-ups on applied servers are stored in encrypted form where it may be held up to ninety (90) days before deleted pursuant to Fiftytwo’s then- current back-up deletion procedures. In case of disputes, Fiftytwo may keep the Customer Data in the system back-up if reasonably required to protect Fiftytwo’s position. For any re-activation or retrieval of data following the retrieval period and before deletion, the Customer must enter into a new Framework Agreement with Fiftytwo.
18.5. The obligations of the Parties under this SaaS Agreement that by their nature would continue beyond termination (including but not limited to use restrictions, liability limitations, confidentiality, Intellectual Property Rights, choice of laws and venue) shall survive and continue to be in effect after a termination of the SaaS Agreement.
19. Termination for Customer's breach
19.1. In the event that the Customer is in material breach of the terms of this SaaS Agreement, and the Customer has not remedied within seven (7) days following receipt of written notice, Fiftytwo may, at its discretion, suspend or terminate the Service to the Customer
19.2. Defaults in payments due to Fiftytwo shall always be deemed a material breach of Customer. Equally, defaults in Customer’s security requirements required for use of the Service shall be deemed a material breach.
19.3. Suspension or termination of the Service will not relieve the Customer of its payment obligation.
19.4. Fiftytwo has the right to invoice a fee of DKK onehundred (DKK 100.00)for each payment notice, and if the Service has been suspended or terminated, Fiftytwo may, at its option, against an additional set-up fee of up to DKK twentyfivethousand (DKK 25,000.00), reinstate access to the Service following receipt of all payments due, including reminder fees, and accrued costs of debt collection and interests.
19.5. Notwithstanding the above, Fiftytwo may at its discretion suspend or terminate the Service immediately, without notice, in case of the Customer’s misuse of the Service or 52UNATTENDED, including for unlawful acts or omissions, abuse, misappropriation or infringement of the rights of Fiftytwo or third parties. The terms in clause 18.5 on termination and deletion of Customer Data shall apply. Fiftytwo shall be entitled to claim damages in accordance with the general principles of Danish laws.
20. Marketing
20.1 Fiftytwo is entitled in its own marketing material to include the Customer's name on its reference list and, upon a prior agreement with the Customer, to describe the Customers results obtained from using the Service.
21. Restriction on Assignments
21.1. The Subscription is available for the legal entity of the Customer, and only employees or agents (the legitimate users) of the Customer may access the Service for the Customer’s usage. The Service is non-transferable, and the Customer may not assign, sell, sub-license, rent, lease, lend or make available the Service to third parties without a prior written agreement with Fiftytwo. Any assignment or transfer in violation of this Section 20 is void. The SaaS Agreement shall terminate if the Customer is subject to a change of control giving a competitor of Fiftytwo control of the Customer. Otherwise, a change of control of the Customer shall not affect the binding effect of the SaaS Agreement.
21.2. Fiftytwo may assign this SaaS Agreement and its performance of Service and Subscriptions to an affiliate or a successor to all or substantially all of the business or assets to which the SaaS Agreement relates, whether by sale of assets, merger, reorganization, a change of control or otherwise.
22. Laws and Venues
22.1. This SaaS Agreement and any supplementary agreements hereunder between the Customer and Fiftytwo are governed by Danish laws and regulations, and shall be construed and enforced in accordance with these laws and regulations, excluding its choice of law rules. The Regulation (EU) 2016/679 on GDPR takes direct effect into Danish law.
22.2. Each Party will use commercially reasonable efforts to settle all matters in dispute amicably, and a Party may always convene a meeting with the participation of a manager, or a representative appointed by the manager, from each Party.
22.3. Any dispute, claim, or controversy arising out of or in connection with the SaaS Agreement, including its existence, validity, or termination, which cannot be solved amicably by the Parties, shall be finally settled before the Danish Institute of Arbitration in accordance with its Rules of Arbitration. The seat of the arbitration shall be in Copenhagen, Denmark, and the proceeding shall be conducted in the English language, unless otherwise agreed by the Parties. For any disputes with a total value of claims not exceeding DKK one (1) million, the tribunal shall consist of one sole arbitrator appoint under the Rules of Arbitration. All proceedings, judgements and awards shall be confidential. The judgement on awards may be enforced in any court having jurisdiction over the Party against whom the judgement is sought enforced.
22.4. Notwithstanding the above, each Party acknowledges that due to the nature of the SaaS Agreement and the Service, any actual or threatened breach of the SaaS Agreement, or any unauthorized use of the Service and/or 52UNATTENDED, may cause immediate and/or irreparable injury or harm and, therefore, a Party shall be entitled to seek injunctive relief in any jurisdiction to enforce its intellectual property rights.
23. Effective Date and Changes to the Terms
23.1. Fiftytwo may modify the terms and conditions pursuant to this SaaS Agreement with one (1) month notice after such modifications have been posted on the Fiftytwo website. It is the Customer’s obligation to keep up to date on changes to the terms as posted on the Fiftytwo website.
23.2. Notwithstanding the above, if the terms are materially changed to the detriment of the Customer, Fiftytwo must provide a notice of not less than thirty (30) days to the Customer Contact, and the Customer has the right to terminate in writing the Subscription and the SaaS Agreement. Use of the Service after the change of the terms has come into force constitutes acceptance of such changed terms.
23.3. This SaaS Agreement applies to all purchases and renewals of Subscriptions as of 15 May, 2023. Previous versions of the SaaS Agreement and related Framework Agreements are available in the overview found on the Cutomer’s portal with Fiftytwo.