1) Definitions


1.1 Agreement: The agreement between Frankly A/S and Client concerning provision of the Service, including any statements of work issued there under and/or any Service level agreements.


1.2 Annex: Appendix to these conditions with specific provisions relating to the service to be provided.


Client: The natural person or legal entity that has concluded, or is going to conclude, an Agreement with Frankly A/S.


1.3 Conditions: These general terms and conditions of Frankly A/S including all applicable Annexes.
Frankly A/S: Contracted Party: Frankly A/S A/S, Kronprinsessegade 54, 3. DK-1306 Copenhagen K, Denmark, or its subsidiaries acting under the name of Frankly A/S.


1.4 GDPR: EU General Data Protection Regulation 2016/679 (the ‘GDPR’).


1.5 IP Rights: All intellectual property rights and associated rights such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and related rights, as well as rights to know-how and performances on a par with these rights.


1.6 Parties: Frankly A/S and Client.


1.7 Personal Data: Each piece of information relating to an identified or identifiable natural person within the meaning of Article 4(1) of the GDPR.


1.8 Service: The Services to be provided to the Client by Frankly A/S pursuant to the Agreement, including, if applicable, results of these Services.

2) Scope of agreement


2.1 Frankly A/S commits to put itself and its organization best at the service of the Client to on terms of best effort to deliver the assets agreed upon in the scope.


2.2 These Terms and Conditions apply to and form an integral part of all offers and quotations of Frankly A/S, Agreements and any other legal acts related there to between Frankly A/S and the Client or its legal successor. The specific Annexes also apply as agreed between Frankly A/S and Client. If this general part of these Conditions is contrary or incompatible as regards any aspect with the provisions in the Annex agreed between Frankly A/S and the Client, the provisions in the Annex(es) concerned will prevail.


2.3 Once these Conditions have been applied to a legal relationship between Frankly A/S and the Client, the Client is deemed to have agreed in advance to the applicability of these Conditions to any Agreements concluded or to be concluded thereafter.  If and insofar as any provision in these Conditions is declared to be null and void or is annulled, the other provisions in these Conditions will remain in full force. In that case the Parties will consult to determine a new provision to replace the provision that is null and void or that has been annulled, thereby taking the purport of the void or  annulled provision into account as far as possible. In the case of a conflict between provisions in an agreement and these conditions.


2.4 In the event of a conflict between these Conditions and a specific Annex, the provisions in the specific Annex(es) will prevail.


2.5 In case of a conflict between these conditions and Danish Law, Danish law prevails.

3) Agreement and Quotations


3.1 Quotations and other offers by Frankly A/S are without obligation to perform if not accepted / confirmed by the Client, unless Frankly A/S has explicitly indicated otherwise in writing.


3.2 Offers and quotations lose their validity four (4) weeks after their date, unless otherwise indicated in writing.


3.3 The Client guarantees that the details disclosed by, or on behalf of it, to Frankly A/S, on which Frankly A/S has based its quotation/offer, are correct and complete. If those details should prove not to be correct or complete, Frankly A/S is entitled to modify the quotation/ offer.


3.4 An Agreement is formed when Frankly A/S has received a written confirmation from the Client of an unmodified valid quotation and/or offer made by Frankly A/S.


3.5 Commissions issued (confirmations/orders placed) by the Client are irrevocable.


3.6 Frankly A/S is always authorised to terminate negotiations without stating reasons and without being liable for any damage/loss caused as a result, and without being obliged to continue negotiations.


3.7 If it has been agreed that the Agreement will be performed in phases, Frankly A/S is authorised to postpone the commencement of the Services that form part of a subsequent phase until the Client has approved the results of the prior phase in writing.


3.8 Frankly A/S is not obligated to follow instructions that alter or add to the content or scope of the agreed Services; if such instructions are followed, the activities concerned must be paid in accordance with Frankly A/S’s usual rates and Frankly A/S will notify the Client of this situation.


3.9 If the client request changes to scope and/or agreement, Frankly A/S is entitled to change the entire time schedule of the services/projects previously agreed and adjust the price accordingly.


3.10 Frankly A/S is entitled to have the Agreement carried out by third parties wholly or in part, or to engage third parties for the performance of the Agreement.


3.11 If applicable given the type of Services (but in any case, excluding digital marketing Services), Services will be deemed by the Parties to have been accepted if the Client has not informed Frankly A/S and substantiated in writing and in sufficient detail, within ten (10) working days after delivery of the Services concerned, that the Services are not accepted and the reason(s) why.


3.12 If the Services are not accepted and the Client can sufficiently demonstrate that the Services provided do not fulfil the Agreement, Frankly A/S must replace or adapt the Services within a reasonable deadline. If the Client again does not accept the Services, the Parties will perform the acceptance procedure again. This procedure will be repeated if the Client again substantiates, during the new acceptance test, the reason(s) why the Services provided do not fulfil the Agreement. Does the Client not sufficiently demonstrate that the Services provided do not fulfil the Agreement, Frankly A/S is entitled to full payment without further reservations and/or negotiations.

4) Prices and terms of payment


4.1 All prices are exclusive of turnover tax (VAT) and other government levies. The prices are based on performance during normal working hours.


4.2 Work, which is not stated in the quotation/offer is not covered by the Agreement, or work which is unplanned and performed normal working hours, may lead to an overall price increase. Frankly A/S shall inform the Client accordingly in a timely manner. Unless explicitly agreed otherwise in writing, price indications, estimates, budgets and/or cost estimates issued by Frankly A/S are merely for information purposes, and no rights or expectations may be derived from them. Only if the Parties specifically have agreed on a fixed price , Frankly A/S is obliged to inform the Client when a cost estimate or estimate will be exceeded.


4.3 All prices indicated in writing or electronically by Frankly A/S are subject to programming and typing errors or spelling mistakes. Frankly A/S is not bound by such errors and/or spelling mistakes.


4.4 The Parties will set down in the Agreement the date or dates on which Frankly A/S will charge the fee for Services to the Client. The Client will pay invoices in accordance with the terms of payment stated on the invoice. In the absence of a specific arrangement, the Client must pay within fourteen (14) days after the invoice date. All payments must be made without any deduction, suspension or set off.


4.5 The payments made by the Client will first be used to pay all due interest and costs, and then the payable invoices which have been outstanding the longest, even if the Client states that the payment relates to a later invoice.


4.6 If the Client does not pay the amounts due on time, the Client will be in default and interest on the outstanding amount may be added in accordance with the Danish Act on Interest (renteloven), without any demand or notice of default being required. If after a written demand the Client still fails to pay the claim, Frankly A/S may refer the debt for collection, in which case the Client will be obliged to pay, in addition to the total amount due, all judicial and extrajudicial costs and fees, including costs of lawyers and (other) external experts .


4.7 Frankly A/S is entitled to retain Services that are still in its possession if the Client does not comply with its payment obligation. During the term of an Agreement, Frankly A/S is authorised to  with a 6 month notice, to increase the prices for its Services  (including hourly rates) if Frankly A/S considers this is necessary (for example to adjust for market rate changes).


4.8 Comments or complaints about invoices, bills and fee statements must be notified by the Client to Frankly A/S in writing within fourteen (14) days after receipt of the invoice, bill or fee statement concerned, failing which the invoice, bill or fee statement will be deemed to have been accepted by the Client. Such complaints do not suspend the obligation to make payment.


4.9 Frankly A/S is entitled to send the Client interim invoices and/or to offset and/or or require prepayment for further execution of the Agreement or other security for compliance by the Client.

5) Cancellation, premature termination, and default of agreement


5.1 In the case of one party’s gross violation of its duties in the Agreement, and in the case where the violating party has not started mitigation within seven (7) working days after the non-violating party has given written notice of the violation, the violated party can cancel the contract without further notice.


5.2 In the case of suspension of payments, bankruptcy, or liquidation of one of the parties, the other party can terminate the agreement without further notice,


5.3 If the Agreement is terminated, any Services that Frankly A/S has delivered and/or carried out will not be undone and the Client must pay for those Services, unless the Client proves that Frankly A/S is in default with regard to the material part of those Services.


5.4 Amounts which Frankly A/S has invoiced before the termination, in connection with Services that Frankly A/S has delivered and/or carried out for the performance of the Agreement, will continue to be payable, with due regard for the provisions of the previous sentence, and will become immediately due and payable at the moment of termination.


5.5 If the Agreement is terminated due to the Client’s violation and/or breach of contract, Frankly A/S shall be entitled to receive full compensation for the suffered loss from the termination and are entitled to the full expected earnings in the Agreement.


5.6 If the Agreement is terminated due to Frankly A/S’ violation and/or breach of contract Frankly A/S’ cumulated liability can never exceed the total estimated payment received and invoiced the Client according to the Agreement at the current time. Can the breach of contract and/or violation be contained to a specific part of the Agreement, the liability is limited to the payment received from this specific part of the Agreement.


5.7 Frankly A/S liability does not include the breach of contract and/or violations caused by 3rd parties which Frankly A/S after agreement or acceptance from the Client have delegated part of the Service and Agreement’s completion to. The Client must direct any such claims/losses arising from 3rd parties’ violations directly towards the responsible 3rd party.

6) Liability and Force majeure


6.1 A Party will not be liable for non-fulfilment of its obligations if that Party can prove that such non-fulfilment is due to circumstances beyond its control, and that the Party could not be expected, on or after conclusion of the Agreement, to have foreseen, avoided, or overcome such circumstances or their consequences (force majeure).


6.2 Force majeure includes (without limitation) war, civil war, riot, public restrictions, regulatory orders, import or export prohibition or other public intervention, fire, natural disasters, floods, vandalism, theft, failing energy supply, breakdown of communication lines, disruptions in Internet connection, seizure of funds, industrial disputes, lockouts and strikes, disease outbreak, epidemics, pandemics, delay/failure by Frankly A/S's suppliers/subcontractors or any other extraordinary event beyond the Party's reasonable control.


6.3 In the event of force majeure, the Party's obligations will be suspended until the time when the Party is again able to perform its obligations. If the force majeure lasts for more than thirty (30) days, either Party is entitled to terminate the Agreement without being obliged to reimburse any loss or damage, undo any work or to pay any compensation for such termination. However, the Client must pay Frankly A/S for Services already performed.


6.4 If Frankly A/S can still perform in part at the time of the force majeure, or if it has performed, it is authorised to perform this Service and to invoice it separately, as if it concerned a separate Agreement.

7) IP rights and Property


7.1 When the final product is delivered to the client, the client take ownership over the delivered material only. There is no transfer of IP rights or rights to ideas, prototypes, design elements, work files or any other work done by Frankly A/S during the project. The client takes ownership of the final product and that only.


7.2 At the end of the project the source code for e.g., websites or mobile apps can be shared with the Client. These tasks are invoiced with the normal hourly rate and necessary material expenses of Frankly A/S.


7.3 Rights for usage of third parties' material e.g. music, actors, photography, plugins, services, hosting etc. are licensed as part of the project and the Client’s usage of this delivered project is subject to that these rights are not breached. After the delivery, the Client bears the responsibility of this.


7.4 The Client owns and can use the delivered material as they see fit, except where limited by agreement or by limitations in IP rights. The Client must pay any third-party fee that is needed to continue the usage of the product after delivery.


7.5 Frankly maintain full ownership of any work done, that is not explicit part of the final delivery.


7.6 Rights / property to any delivered product(s) are still considered rights / property of Frankly A/S until the full amount of the invoice related to the delivered product is paid.

8) Confidentiality


8.1 The Parties will treat all information they obtain from one another, in any form whatsoever - written, verbal, electronic or physical - including but not limited to software, (source) codes, programs, applications, customer details, know-how, technical specifications, documentation (‘Confidential Information’) as strictly confidential, and will keep it secret during the term of the Agreement and for five (5) years after the end of the Agreement.


8.2 The Parties will only use Confidential Information for the purposes for which it was disclosed and in doing so will observe at least the same duty of care and safeguards that apply to their own internal confidential information. The Parties will only disclose the Confidential Information to employees, and employees of affiliated businesses and subcontractors, insofar as is necessary within the framework of the (implementation of the) Agreement. Comparable provisions in relation to confidentiality must be imposed on these employees and subcontractors.


8.3 The obligations to maintain secrecy with regard to Confidential Information do not apply insofar as the receiving Party can demonstrate that the information concerned:


i) was already known to it when it was received;


ii) was already publicly known when it was received;


iii) became publicly known after receipt and this is not attributable to the receiving Party;


iv) was received in a lawful manner from third parties along with the right to communicate it publicly without any obligation to maintain secrecy;


v) must be disclosed pursuant to legislation or regulations or pursuant to a court order, and the disclosing Party has informed the other Party of such an obligation to communicate it to the public;


vi) was made public with the approval of the Party disclosing it.

9) Applicable and competent court


9.1 These Conditions, the Agreement and the Annexes are exclusively subject to Danish law.


9.2 The applicability of the Vienna Sales Convention (CISG) is expressly excluded. Disputes that arise between Frankly A/S and the Client within the framework of, or in connection with, these Conditions, the Annexes and/or the Agreement, and which cannot be settled in good spirit, shall exclusively be submitted to the Copenhagen Maritime and Commercial Court (Sø- og Handelsretten) in the first instance.

10) Hosting


10.1 Scope of agreement


10.1.1 This hosting agreement covers hosting of the Client’s web solution on Frankly’s hardware.


10.1.2 The Agreement secures the daily operation, error handling and maintenance of the servers. The agreement does not cover error corrections in the web solutions, nor does it cover error corrections that stem from the clients use of the web solutions


10.2 Standard Business hours


10.2.1 Frankly A/S’s standard business hours are Monday – Friday, 9am – 5pm CET. Support requests can be emailed to support@frankly.dk. An automated response will be sent once it has been received.


10.3 Uptime


10.3.1 Uptime describes the time in which the server is operational.


10.3.2 Uptime is defined per running year.


10.3.3 Frankly is obliged to maintain an uptime of 99,8 %.


10.4 Response time


10.4.1 Frankly A/S is obliged to start error handling within 1 hour of system failure during standard business hours.


10.4.2 Frankly A/S is obliged to start error handling within 8 hours of system failure outside of standard business hours, Monday – Friday.


10.4.3 Frankly is obliged to start error handling within 24 hours of system failure during week- ends. Weekend is defined as Friday at 5pm to Monday at 9 am.


10.4.4 Service windows occur every second Thursday from 9 am – 12 am. Minor downtime can occur.


10.5 Security


10.5.1 If Frankly A/S determines that the Client’s data or applications on the servers poses a security risk to the system, then Frankly can, without further notice, remove the Client’s access to the server and remove any data the vendor feels poses a security risk.


10.5.2 Frankly may force the Client to change passwords and or other settings to improve security.


10.5.3 The Client is not permitted to use the server to host any kind of illegal material including but not limited to pornography, materials to which the Clients do not hold the copyright etc.


10.6 Backup


10.6.1 Backup will be performed once per day.


10.6.2 The backup is hosted by Frankly A/S’s redundant servers.


10.6.3 The backup is kept for 30 days.


10.7 Server maintenance


10.7.1 Frankly uses 3rd party servers located in Denmark.


10.8 Entry into force and duration


10.8.1 The Hosting agreement takes effect once the Client has given written consent to Frankly A/S.


10.8.2 The Client may terminate the agreement with 6 months’ notice. Termination must be submitted in writing to support@frankly.dk.