Valid from 1 May 2020


1. Scope of application

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. 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.

2.3. Delivery means a delivery containing Products and/or Services.

2.4. Products mean Unit(s), installed Software and access to and use of online services.

2.5. 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.

2.6. 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.

2.7. Services 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. Several Services may be termed a project in the Agreement, in which also Products can be included.

2.8. 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.

2.9. 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.

 

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 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.

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.

 

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 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.

12.2. Fiftytwo cannot be held liable for matters concerning third-party Products.

12.3. 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.

12.4. 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.

12.5. Fiftytwo's liability in damages for loss caused by Software developed by Fiftytwo is regulated in the licence terms attached to the Software.

12.6. Fiftytwo cannot be held liable for errors or defects in third-party Products. All claims must be against the third-party dealer/producer, see the terms under which these Products are sold.

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.

12.8. Fiftytwo's total liability for damages 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.


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 the 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.