REGULAR SALES AND DELIVERY TERMS AND CONDITIONS FOR DDD RETAIL
1. SCOPE
These regular Sales and Delivery Terms and Conditions (October 2013) for DdD Retail A/S (hereinafter “DdD Retail”) apply to the sale of any service from DdD Retail to You (“Customer”) unless expressly departed from or modified by separate written agreement.
Special or general conditions stated by Customer in the bidding documents, order, acceptance, purchase terms, etc. shall not be considered a departure from these terms unless such departures have been agreed to in writing by DdD Retail.
2. TECHNICAL INFORMATION, INSTRUCTIONS, ETC.
The hardware and software that DdD Retail receives from manufacturers and subcontractors will be developed and upgraded on a continuous basis. Thus, any product information; illustrations, drawings; and information about technical data such as volume, stress limits, performance, up time, response time, etc. as stated in brochures, videos, PowerPoint presentations, on DdD Retail’s home page, etc. are informational in nature only. DdD Retail’s information is only binding when a separate written warranty has been issued for such information as part of the agreement.
Customer bears the sole responsibility for selecting the service, which includes ensuring that Customer will achieve the expected results and functionality and that the service will work in Customer’s existing or intended operating environment.
3. ORDERS
The purchase is final upon DdD Retail A/S’s confirmation of Customer’s order, either by sending an order confirmation or an invoice. DdD Retail A/S reserves the right to change an issued order confirmation in the event of exchange rate fluctuations, price changes, changes in delivery times from our suppliers, and/or denial of import permit.
4. SCOPE OF STANDARD SYSTEM
A standard system from DdD Retail includes the following:
1. Hardware. The following hardware is included in the standard system:
a) DdD POS PC,
b) Touch Screen,
c) Receipt printer,
d) Bar code scanner, and
e) Cash drawer.
2. Software. The software supplied by DdD Retail consists of POS software as well as of DdD
backoffice. Insofar as terms of use of and rights to the software are concerned, please refer to Clause 16.
a) The POS software is installed locally on/in each individual PC/cash register.
The POS software includes the programs necessary for operations, as well as information about Customer’s product groups, suppliers, etc.
b) DdD backoffice is the software that is used in connection with DdD Retail’s
hosting of Customer’s data.
3. Data hosting. DdD backoffice gathers and hosts Customer data, including data pertaining
to sales, customer information, inventory, etc., as a cloud-based solution. The cloud-based
solution is hosted by DdD Retail’s subcontractor, and the use of the cloud-based solution is subject to the subcontractor’s terms and condition in effect at any given time. For the
applicable terms and conditions with the current subcontractor, please refer to:
http://www.tdchosting.dk/online-shop/om-tdc-hosting/vilkaar-og-betingelser/.
4. Preparation of hardware, installation of software on POS PC, delivery and education of
personnel (e-learning).
5. CONTINUOUS AGREEMENT
When placing an order for a standard solution, Customer further accepts to enter into a continuous agreement regarding licenses, hosting, hotline, and anti-virus:
1. Item no. 105020 Monthly license fee, hosting, and hotline per location per PC
For price see “Economy” on page 2
2. Anti-virus per PC per month
For price see “Economy” on page 2
The continuous agreement for license, hosting, and hotline includes the following:
3. Rights of use for software
4. Software updates
5. Cloud hosting of data
6. Support
The anti-virus subscription includes a monthly subscription for anti-virus software with DdD Retail’s subcontractor. The anti-virus subscription is subject to DdD Retail’s subcontractor’s terms and conditions in effect at any given time. For the applicable terms and conditions with the current subcontractor, please refer to: http://www.norman.com/dk/Slutbrugeraftale.
The Agreement is valid for a minimum of 24 months and is automatically renewed on January 1st of each year. Either party may terminate the Agreement by written notice at least 3 (three) months prior. Written notice of termination may be sent to info@dddretail.com or by mail to DdD Retail A/S, Theilgaards Allé 2, DK-4600 Køge, Denmark.
Additional continuous subscription services will appear in the bid; the applicable terms and conditions for termination and prices and payment are as set forth in Clauses 5 and 9.
6. SUPPORT
DdD Retail provides technical support for the delivered software via a hotline. The support includes assistance with POS software issues, payment terminal malfunctions, etc.
Business hours, days closed, and contact information for the support are always available on DdD Retail’s home page.
7. DELIVERY AND DELIVERY TIME
Delivery will take place at the discretion of DdD Retail Ex Works (INCOTERMS 2010) unless otherwise agreed in writing in the particular case in question. If Customer’s circumstances prevent delivery from taking place, the goods will be placed in DdD Retail’s warehouse at Customer’s expense and risk. DdD Retail is entitled to charge storage fees and to collect any and all additional expenses associated with unfulfilled delivery caused by Customer’s circumstances. In all cases, DdD Retail is entitled to charge Customer a fee of DKK 2,000.00 + transportation expenses, even if the actual costs associated with the postponed delivery are lower.
Any delivery time provided by DdD Retail is a best estimate and is not binding on DdD Retail unless the agreement expressly specifies that the delivery time for the service or parts thereof is fixed.
8. CUSTOMER PARTICIPATION REQUIREMENTS
Customer is responsible for possessing an Internet connection that is adequate for the services rendered. In addition, Customer is responsible for ensuring that the physical environment, wherein the services rendered will be placed are ready to receive the services at the time of delivery. This includes adequate power supply, etc.
9. PRICES AND PAYMENT
The Purchase amount shall be due upon delivery with the final due date being 8 (eight) days upon delivery. When placing an order, Customer agrees to an advance payment of 20% (twenty percent) of the total amount due for the order prior to delivery of services.
In the event of late payment, Customer shall pay an interest rate of 1.5% (one-and-a-half percent) of the balance due from the final due date and until the funds have been credited to DdD Retail’s account with DdD Retail’s financial institution.
Customer shall not offset any claims pertaining to other legal matters against the purchase amount, nor shall Customer exercise a lien or deny payment because of delay, complaints, or counter-claims pertaining to the delivery in question.
DdD Retail reserves the right to adjust the applicable prices annually in accordance with increases in the net price index.
10. OWNERSHIP
DdD Retail retains ownership of any and all services until the purchase amount plus any additional interest and costs have been paid in full.
11. BREACH OF CONTRACT BY CUSTOMER
DdD Retail reserves the right to disconnect Customer’s access to the cloud-based solution and/or locally installed POS software if Customer breaches Customer’s payment obligations. DdD Retail further reserves the right to cease any additional deliveries of any agreed services for as long as Customer remains in breach of Customer’s payment obligations, including lack of payment of any accrued interest.
12. COMPLAINTS AND DEFECTS
Customer shall inspect the service for potential defects immediately and no later than 8 (eight) days upon receipt of a delivery. If Customer finds any defects, Customer shall immediately submit a written complaint to DdD Retail in writing specifying the applicable defects. Failure to file such complaint in a timely manner shall cause Customer to loose the right to file a claim for defects.
Any claims for defects, regardless of nature, must be filed within 12 (twelve) months from the delivery time. Failure by Customer to do so shall cause Customer to loose the ability to file a subsequent claim for the defect. DdD Retail’s liability for defects is always, and under all circumstances, limited to either of the following at DdD Retail’s discretion: replacement delivery, redress, or notifying Customer of a proportionate price reduction established by DdD Retail. Customer shall not file any other claims for defective performance.
13. PRODUCT LIABILITY
As far as product liability is concerned, DdD Retail is liable pursuant to the provisions of the Danish Product Liability Act from which exceptions cannot be granted by agreement. DdD Retail assumes no liability for any product damage on any other basis. The amount of the product liability shall not exceed the coverage of DdD Retail’s product liability insurance.
Customer shall notify DdD Retail in writing without undue delay in the event that Customer becomes aware that damage has been caused by the purchased product, that such damage is alleged by a third party, or that there is a risk that such damage may occur.
Insofar as DdD Retail is held liable to a third party, Customer shall hold DdD Retail harmless to the extent of the limit of DdD Retail’s liability pursuant to Clause 13 herein.
14. PERSONAL DATA
DdD Retail’s data hosting is provided by a cloud service provider selected by DdD Retail. All information pertaining to Customer’s activities that is processed through the services provided will be hosted in a cloudbased solution offered by the cloud service provider. Insofar as the hosted data contains personal data, as a provider DdD Retail shall comply with the rules of the Danish Act on Processing of Personal Data. This includes ensuring adequate security measures to prevent accidental or illicit destruction, loss, or deterioration of personal data and to prevent such personal data from being disclosed to unauthorized parties, being misused, or otherwise being processed in violation of the Danish Act on Processing of Personal Data.
Customer shall comply with the Danish Act on Processing of Personal Data insofar as said Act applies to Customer.
15. LIMITED LIABILITY
Regardless of the basis of a claim and regardless of the degree of negligence, DdD Retail shall not be liable for any indirect or consequential loss such as loss of data or expenses incurred from recreating lost data, loss of goodwill, corruption of messages, loss of expected savings, and similar losses. DdD Retail’s liability for any loss or damage shall be proportionately limited to 100% (one hundred percent) of the amount that Customer paid for the service (or the lack thereof) on which the claim is based.
16. SPECIAL CONDITIONS FOR SOFTWARE
16.1 Special licensing terms
Any special license terms/license conditions governing the delivered software shall prevail over Clause 16 herein. This applies regardless of whether the license terms originate with a third party or are established by DdD Retail.
16.2 Right of use
Customer acquires a non-exclusive, non-transferable, and time-limited right of use of the agreed number of units and/or the agreed number of licenses for the delivered software with any accessory modules and written documentation material. Customer is only entitled to have the delivered software installed on the machine(s) for which a license was issued.
16.3 Copying of software
Customer is not entitled to copy the software or any parts thereof except such copying as may be necessary for installation. However, Customer is entitled to produce back-up copies of the delivered software for back-up or archive purposes if this is necessary for using the delivery. Copies produced for back-up or archiving purposes are likewise subject to these licensing terms.
16.4 Changes and modifications
Customer is not entitled to modify the software. This includes not being entitled to conduct or cause to be conducted any reverse engineering or decompiling of the software beyond what might be permissible pursuant to such mandatory law as might apply to this contract. In the event that Customer or a third party interferes with or modifies the software, DdD Retail’s obligations pursuant to these terms and conditions shall be rendered null and void without notice, and DdD Retail will assume no liability for the consequences of such interference or modifications. DdD Retail’s remedies for breach of contract shall remain unchanged and in full force and effect.
16.5 Transfer
Customer is not entitled to sell, lease, lend, or permit the use of, or otherwise transfer or assign the right of use of, the software to a third party. The software shall not be used in connection with facility management, outsourcing, hosting, or similar services unless separately agreed with DdD Retail.
16.6 Intellectual property rights
DdD Retail has the copyright and any other right to the delivered software or is entitled to sublicense said software on behalf of a third party. Customer shall respect DdD Retail’s rights/third-party rights, and Customer is liable for failure to comply with these rights, including unauthorized transfer of the software to a third party.
Customer shall not be entitled to break or change any security codes. Likewise, Customer shall not be entitled to change or remove statements in the software, or on the media wherewith the software is delivered, pertaining to ownership, brands, etc.
Customer shall ensure that the software is kept inaccessible third parties and that it does not come into the possession of any third party.
16.7 Redress for original software defects
Customer shall inspect and test the software immediately upon delivery. In the event that a medium is not readable, DdD Retail shall deliver a new copy of the software within 30 days from delivery of the software.
As is the case with any software, the software may contain inefficient features or minor defects. Such minor defects and inefficient features shall not entitle Customer to redress or to any other remedies for breach of contract. DdD Retail will make an effort to correct all defects and inefficient features in subsequent versions of the software.
If Customer provides written documentation for the existence of an original software defect that affects the overall functionality of the software or prevents the software from running, DdD Retail shall, at its own discretion, either deliver a new version of the software free of charge without the defect; correct the defect free of charge; or terminate the agreement in part or in whole and repay any payments received for the software in part or in whole in exchange for the return of any and all versions and copies that Customer might possess of the software, manuals, related documentation, etc. Correcting the defect shall be equal to instructions on business procedures or methods of use (“work-arounds”) where the defect does not have a major impact on Customer’s use of the software. Customer is precluded from making additional claims or claims for defective performance against DdD Retail.
The software is licensed as is without any warranties, remedial obligations, or breach obligations other than those stated above. Thus, DdD Retail offers no guarantee that operation and use of the software will take place without interruptions or errors, nor does DdD Retail guarantee that any software errors can or will be corrected.
Insofar as the above does not preclude the provisions of Clause 12 regarding defects, the provisions of Clause 12 shall also apply to defects in the licensed software.
16.8 Violation of third-party rights
Any violation of third-party intellectual property rights caused by Customer’s use of the software shall be the responsibility of DdD Retail. Customer shall immediately notify DdD Retail of any claims filed against Customer alleging such violation. DdD Retail, or the third party that has licensed the software to DdD Retail, will then take over the case and any costs associated therewith, and DdD Retail will have irrevocable authority to, at DdD Retail’s own expense, pursue litigation or settle the alleged violations.
In the event that a court rules on the applicable third party’s allegation, DdD Retail will be entitled to, at its own discretion, either obtain the right for Customer to continue to use the software; discontinue the violation by changing or replacing the software with different software that has essentially the same features as the software in question; or immediately terminate the agreement in exchange for returning the fee paid by Customer. In such case, Customer will not be able to file any further claims against DdD Retail.
17. FORCE MAJEURE
DdD Retail has no obligation to Customer if the following circumstances occur after the agreement is entered into and prevent the fulfillment of the agreement: war and mobilization, riots and unrest, acts of terror, natural catastrophes, strikes and lock-outs, scarcity of products, defects in or delays of deliveries from subcontractors, fire, lack of means of transportation, currency restrictions, import and export restrictions, death, illness, resignation of key individuals, viruses, other circumstances beyond the control of DdD Retail. In such case, DdD Retail will be entitled to postpone delivery until the hindrance of performance has ceased or, in the alternative, to annul the agreement in part or in full without liability.
18. APPLICABLE LAW AND JURISDICTION
Any disputes between DdD Retail and Customer shall be resolved under Danish law. Said choice of law, however, shall not apply to private international law under Danish law. At DdD Retail’s discretion, the dispute will be resolved under the jurisdiction of the Copenhagen District Court. However, regardless of the above, DdD Retail may always choose to sue Customer in Customer’s own jurisdiction.