TERMS AND CONDITIONS
1. IDENTIFICATION OF THE PARTIES.
1.1.- These terms and conditions govern the relationship between you or the organisation you represent (hereinafter, the CLIENT) AND Compañía Mercantil PREDICTIVE RETENTION S.L (hereinafter, the COMPANY). The COMPANY’S registered address is Calle Duque de la Victoria, 15 – Piso 2º-B, Valladolid, (Castilla León) and it is registered in the Commercial Register of Valladolid in Volume: 1563, Folio 14, Section 8, Sheet: H VA30841, first entry and its N.I.F. [Spanish Tax Identification Code] is B47797089.
2. PURPOSE OF THE CONTRACT.
2.1- These general terms and conditions are, for legal purposes, contracts concluded electronically and therefore their acceptance has all the effects provided for by the legal system in relation to this type of contract. By accepting these terms and conditions, each of the Parties accepts any and all rights and obligations contained herein.
2.2- These general conditions govern the access and use by the CLIENT of the services in the modalities, functions and modules that may be published at any time on the COMPANY’S website (hereinafter, the Services). The contracting of the Services implies the unreserved acceptance of the general terms and conditions in the version published on the website at the time that the CLIENT contracts the Services, which will always remain available to the CLIENTS.
2.3- Without prejudice to the fact that these terms and conditions may be offered in other languages in the future, they are currently offered in English.
2.4.- The COMPANY expressly reserves the right to modify the present General Terms and Conditions.
2.5.- In the event of any incident, query or consultation related to the Services, the CLIENT may contact the COMPANY using the contact form provided on the website or the email address firstname.lastname@example.org.
3. ABOUT THE SERVICES.
3.1.- The COMPANY will give the CLIENT access to the contracted Services in accordance with the modules and functionalities selected by the CLIENT at the time of entering into the contract. Any other module in addition to those selected shall be the subject of a new proposal by the COMPANY to the CLIENT.
3.2- In the event that the Services contracted are to be customised or given special parameters, the COMPANY shall do so according to the calendar agreed with the CLIENT in the particular terms and conditions.
4. RIGHTS AND OBLIGATIONS OF THE CLIENT
4.1- THE CLIENT, as well as its indicated users (hereinafter, the USERS) is entitled to access the Services, in accordance with the contracted module. USERS must accept the terms and conditions of the platform through which the Services are provided.
4.2- Neither the CLIENT nor the USER is permitted to use the Services to carry out any kind of illegal or irregular activity, in particular any activity that may (i) breach intellectual property rights; (ii) infringe regulations on data protection, right to honour or privacy. Nor may the Services be employed in a way that impedes the functioning of the Services for the purpose for which they have been provided.
4.3- THE CLIENT has sole and exclusive responsibility for the designated USERS use of the Services.
4.4- The account and credentials for accessing the Services are personal and non-transferable in nature, with each CLIENT and USER responsible for their safekeeping. For security reasons, the COMPANY recommends choosing a password with at least 8 characters in the most complex combination possible, using a random combination of upper and lower case letters, numbers, and other characters.
If the CLIENT becomes aware of any incident relating to the account or password, and in any event, if it suspects that this information could become known to any third party, the User must inform the COMPANY as soon as possible so that it can be cancelled immediately, as until such time, the COMPANY takes no responsibility for the acts and/or operations arising from the failure to protect the password that may be carried out using the Platform.
5. TYPES OF PLAN
5.1- After completing registration, the CLIENT must choose from the various types of plan available on the website. The concrete description of the plan, price, duration and features will appear in the section “Plans and Pricing”, available on the COMPANY’S website. Any functionality or element not included in the description is expressly excluded. The prices indicated on the screen are in Euros and, except where otherwise indicated, include IVA [VAT] and any other applicable tax. The prices shown are valid, except in the case of typographical error. The offers and their period of validity will be duly indicated on the screen.
5.2- To purchase the Plan, the CLIENT must select the Plan that they wish to acquire according to the indications shown on the screen, fill in the electronic form provided for this purpose and send it to the COMPANY by clicking the icon/button “BUY NOW”, which implies reading and accepting all of the present Terms and Conditions as well as, where applicable, the existing Specific Conditions for each relevant Plan.
5.3- Once purchase has been made, the COMPANY will send confirmation of receipt of the order to the email address provided by the CLIENT. From that moment on, the CLIENT will be able to enjoy its Plan.
5.4- THE COMPANY will not store any electronic document that formalises the contract, therefore it will not be subsequently accessible by the CLIENT, without prejudice to the present general terms and conditions of contract being available to the CLIENT to view and, where appropriate, to download from the website.
5.5- At the end of the contracted term for an account modality (or, if applicable, the term of any of the contracted services), the functionalities and services liked to that Plan will be withdrawn.
5.6- During the period of validity of the Plan, the CLIENT may change to a different Plan. To do so, the USER must access the “Account management” section via the settings panel and follow the instructions shown next to the information relating to the contracted Plan.
Changing the Plan will not result in any refund of the amount paid for the unused Plan. Notwithstanding the foregoing, the price of the new plan will be modified according to the remaining period not enjoyed.
6. PAYMENT METHOD.
6.1- The payment for the Plan contracted via the Platform shall be made via the payment gateway provided for that effect. In order to make payment, the USER must enter their credit or debit card details in the payment gateway.
6.2.- The annual subscription will be invoiced annually in advance except where an alternative payment method has been agreed in the specific terms and conditions. To continue enjoying the Services, the CLIENT must pay the subscription within thirty (30) days of the invoice date by bank transfer.
Under the provisions of Royal Decree-Law 19/2018, of 23 November, on payment services and other urgent financial measures, the CLIENT gives its permission for the COMPANY to charge the account it has designated for such use under the present contract. In the event that the CLIENT agrees an alternative payment method with its supplier that invalidates the consent given herein, they must inform the COMPANY accordingly and give consent for the new method in order for the payments to be made.
If ten (10) days pass following issue of the invoice without the Client communicating its disagreement with its contents, via any means whose receipt can be verified, the COMPANY will understand the invoices to be correct and will not accept any complaint once said period has elapsed.
7.1.- Unless expressly agreed otherwise in the specific conditions, the contractual relationship between the COMPANY and the CLIENT will be for the duration indicated in the specifically contracted Plan, if not expressly stated otherwise, the duration will be for one year.
7.2.- At the end of the initial period, the Service will be understood to be automatically and tacitly extended by successive periods of equivalent duration to the initial contracted period, unless the contract is terminated or cancellation expressly requested.
8. WITHDRAWAL, CANCELLATION OR SUSPENSION OF THE ACCOUNT.
8.1.- The COMPANY reserves the right to suspend or cancel the account by which the Service is accessed without prior notice in the event that the CLIENT (i) does not fulfil, even unintentionally, the necessary conditions set out in these Terms and Conditions for the contracting; (ii) alters the identity of another person; (iii) uses the Services for illegal, criminal or non-compliant purposes; (iv) breaches any applicable regulations on data protection, right to honour or privacy.
8.2.- The suspension or cancellation of the account by the COMPANY for the aforementioned reasons will not give rise to any kind of compensation in favour of the USER or the CLIENT.
8.3- The CLIENT may terminate the Contract at any time by expressly communicating its wish to do so in writing to the COMPANY. In the event that the request to terminate is received within the first fifteen (15) days of the current month, the cancellation of the Service will be effective on the last day of that month. If the request to cancel is received after the first fifteen (15) days of the current month, the cancellation of the Service will be effective on the last day of the month following the date of notification.
The request to cancel must be made expressly and via the following means (a) using the CLIENT control panel or (b) via any written means, accrediting its receipt and the identity of the contract holder, with a copy of the valid identity document of the contract holder and legal representative.
In the event that the CLIENT requests the cancellation of the Service before the end of the Initial Period of Duration or the duration indicated in the Specific Contract Conditions , except where expressly agreed otherwise, the CLIENT will be penalised by not receiving nor being authorised to request any reimbursement for the period in which it does not enjoy the Service, likewise it must reimburse the COMPANY for any credit or discount it may have received on contracting the Service.
9. MAINTENANCE SERVICE AND TELEPHONE SUPPORT.
9.1.- If the CLIENT has contracted the COMPANY’S support and maintenance service, the latter will be limited to the number of hours per period set out in the Plan or in the specific conditions. If the number in question is exceeded, the COMPANY will invoice for the excess in accordance with the ratio/hour agreed with the CLIENT.
9.2- The maintenance service shall be provided by the COMPANY during office hours, according to the COMPANY’S applicable schedule at its offices in Valladolid. This service will be provided remotely, either by telephone or telematic means. The contract price does not include any travel expenses, allowances and per diems that may arise from visits made by the COMPANY’S designated personnel to the CLIENT’S facilities for the provision of maintenance services. Such travel expenses, allowances and per diems will be borne by the CLIENT.
10. MAINTENANCE OF THE PLATAFORM.
10.1- As the Services will be provided via technological infrastructure, the COMPANY will carry out regular maintenance and improvements to the technological infrastructure as well as to the applications that run on it. The CLIENT will be given appropriate advance notice of maintenance work.
10.2- This maintenance work may cause some or all of the Services to be temporarily limited or interrupted. The CLIENT accepts and consents to this situation, authorising the COMPANY to carry out the aforementioned maintenance and improvement work.
10.3- Maintenance and improvement work, provided that it is communicated to the CLIENT, cannot be considered to be a breach of the contract in any way by the COMPANY.
10.4- The COMPANY accepts no responsibility for any loss or damage, direct or indirect, that any interruption to the service may cause to the CLIENT, the USERS or third parties.
11.1- Given that the Services will be provided telematically, the USER’S experience and even their ability to use of the Services will be determined by the stability, availability and quality of the telecommunications services to access the internet. For this reason, the CLIENT and, where applicable, the USERS, must have a telecommunications service with sufficient bandwidth, stability and quality to support the connections they use to access the Services. This connectivity must meet the requirements established by the COMPANY.
11.2- Under no circumstances will the COMPANY be liable for any failures and interruptions in the telecommunications service contracted by the CLIENT from its operator that prevent access the Services.
12. USE LICENCE.
12.1- During the term of the relationship, and insofar as it is necessary for the provision of the Services, the COMPANY grants the CLIENT a non-exclusive licence to use the software made available to it with sufficient scope for the contracted Services to be enjoyed worldwide. The CLIENT may not transfer nor sub-license the license given, even partially. The license may be revoked by the COMPANY in the event of a breach of contract by the CLIENT.
12.2- Neither the CLIENT nor the USERS acquire any ownership of any information programme that is made available to them in the course of providing the Services. The COMPANY retains ownership of all intellectual and industrial property rights that it may have had at the start of the present relationship or that it may have generated or acquired alongside it.
12.3- In the event that, at the request of the CLIENT, the COMPANY carries out any type of IT development, personalisation or parameterisation, such as the creation of a specific connector or modification of an existing one, all the intellectual and industrial property rights generated in this respect will be exclusively owned by the CLIENT, for all forms of exploitation and for the maximum time legally possible. Likewise, the source code will remain the exclusive property of the COMPANY.
13. GUARANTEES AND RESPONSABILITIES.
13.1- In relation to the services provided, the COMPANY accepts no responsibility whatsoever for any loss or damages incurred by the CLIENT and/or third parties as a result of the following situations:
- The omission or inaccuracy of information provided by the CLIENT.
- Incorrect instructions or indications provided by the CLIENT that affect the Services provided, o
- Any other situation not specifically provided for in the contract or outside the sole responsibility of the COMPANY
13.2- In any case, the COMPANY’S liability that may arise from the fulfilment or non-fulfilment of the present contract shall be limited to the total of all sums paid by the CLIENT in the last SIX (6) months preceding the event that causes the damages, both for each incident as well as the total of all incidents occurring during said period.
13.3- The CLIENT states and confirms, insofar as is applicable to the contracted Services, that:
- it is authorised to use the information transmitted or stored in any form via the Service contract, or it belongs for all purposes to the CLIENT, who shall be liable to third parties for the content of such information. Accordingly, the CLIENT undertakes to indemnify the COMPANY against any claim that, for these reasons, may be made against it by third parties. To these effects, the CLIENT recognises the COMPANY’S right to cancel and/or delete content at its own discretion.
- that the downloading of data and/or any material from the server may cause damage to the computer system or loss of data, which is beyond the control of the COMPANY, as it is not the COMPANY that carries out the aforementioned downloading nor does it intervene in any way in the process.
- the information or services that the CLIENT may provide do not imply any infringement of the fundamental rights and public freedoms recognised by the legislation in force, in particular the legal provisions on the rights of consumers and users and the protection of children and young people. Accordingly, the CLIENT undertakes to indemnify the COMPANY against any claim that, for these reasons, may be made against it.
In particular, the CLIENT will be liable for: (i) the use of the service or any of the elements that comprise it for illicit purposes; and (ii) the transmission or publication or material or content that violates the legislation in force and the publication of materials that do not hold the necessary licenses and/or permits under industrial or property law.
14. TERMINATION OF THE CONTRACT.
14.1- This contract shall be terminated in full on the occurrence of any of the following grounds:
- By mutual agreement of both parties.
- By the annulment of the legal status of either party.
- Non-payment by the CLIENT to the COMPANY.
- Breach by the CLIENT of the terms and conditions of the license established in the present Contract.
- For breach by either party of its obligations, provided that the defaulting party has failed to remedy the breach within ten (10) calendar days of being notified of the breach by the other party.
- For any other cause for termination that may be set out in the present contract or is otherwise legally admissible.
14.2- In any case, when one of the parties breaches any of the obligations corresponding to it and does not remedy said breach within the aforementioned period of ten (10) days after being notified of the breach by the other party, the other party may choose to demand performance of the same or to terminate the contract and in either case seek the corresponding compensation for damages, all of which is without prejudice to any penalties that may have been established for particular breaches. In the event that the defaulting party remedies the breach within the aforementioned period, the consequences of such breach shall not apply. Notwithstanding the foregoing, the defaulting party must indemnify the other party for any damages that it may incur as a result of the breach in question until the moment it is remedied.
14.3- Non-payment of any amount, or breach of the terms of the license will entitled the COMPANY to terminate the contract without granting the CLIENT a period in which to take remedial action to such effect. In the event of non-payment, the COMPANY may also temporarily suspend some functionalities of the Platform that are accessed by the CLIENT or the USERS.
14.4- Termination of the Contract will imply the removal of the CLIENT’S ability to continue using the information programmes or apps and its obligation to uninstall and delete these from its systems.
15. DATA PROTECTION.
15.2- The purpose of the processing is to control and execute the present contract as well as to send communications relating to the Services, all of which has the legal basis of fulfilling the agreement and legitimate interest. Data will be processed for as long as this contract remains in force and, after its termination, will be stored until the end of any periods arising from the fulfilment of legal obligations, including any limitation periods.
15.3- Data will not be disclosed to any third party unless such disclosure is necessary to comply with a legal obligation or, where appropriate, for the performance of this contract. Finally, natural persons may exercise their rights of access, rectification, erasure, portability, restriction or objection to the processing of their data by sending a written request to the relevant data controller. In the event that the data subject wishes to lodge a complaint, they may do so with the Agencia Española de Protección de Datos [Spanish Data Protection Agency] at www.aepd.es.
16. COMMISSION OF PROCESSING.
16.1.- In the event that, in order to provide the Services that are the object of this contract, it is necessary for the COMPANY to process data for which the Client is responsible (hereinafter, the Client), the following conditions will be apply, in accordance with article 28 of the General Data Protection Regulation (GDPR):
- THE COMPANY will process the personal data provided by the Client solely and exclusively in accordance with the written instructions given by the Client and within the framework of fulfilment of the services that are the object of this contract. If the COMPANY considers that any of the instructions provided by the Client infringes the GDPR or any other provision on data protection, the COMPANY will immediately inform the Client of said circumstance and, in any case, the COMPANY will fulfil the provisions of said regulation. In the event that the COMPANY determines the purposes and means of the processing, it will be considered responsible and will be subject to the legal responsibility set out in the data protection regulations.
- The COMPANY will help the Client to ensure compliance with its obligations under articles 32 to 36 of the GDPR, taking into consideration the nature of the processing and the information available to the COMPANY.
- The COMPANY is authorised to subcontract the Services, in this case to Amazon via the AWS service. In the event that chooses another supplier, the COMPANY will inform the Client for information purposes only. If the Client does not state its opposition within a period of five (5) days, the COMPANY will be authorised to subcontract. Otherwise, the COMPANY will be authorised to terminate the contract. In any case, the COMPANY will enter into a contract with the new appointee under which the latter is obliged to assume the same data protection responsibilities as those stipulated for the COMPANY in this agreement, in particular, the provision of guarantees that sufficient technical and organisational measures will be applied for the processing to comply with data protection regulations. In the event of any breach of data protection regulations by the new appointee, the COMPANY will be fully liable to the Client with respect to the new appointee’s fulfilment of its obligations.
- In order to comply with the provisions of article 32 of the GDPR, the COMPANY will apply the appropriate technical and organisational measures to guarantee a suitable level of security to the risk, all of which taking into account the state of the technology, costs of application, nature, scope, context and purposes of processing, as well as the varying probability and severity for the rights and freedoms of natural persons. When evaluating the suitability of the level of security, the COMPANY will pay particular attention to the risks presented by data processing, in particular as a result of the accidental or illicit destruction, loss or alteration of the personal data transmitted, stored or processed by other means, or the unauthorised communication of or access to such data.
- The COMPANY undertakes and requires any staff that may access the Client’s data held by the COMPANY to sign an agreement undertaking to respect its confidentiality. Alternatively to the above, if any of said individuals is subject to a statutory confidentiality agreement, it will not be necessary for them to sign a confidentiality agreement. The COMPANY will take the necessary measures to ensure that any person acting under its authority and who may have access to personal data only uses such data in accordance with the Client’s instructions.
- In the event that, in order to process this contract, it is necessary to carry out the impact assessment of article 35 of the RGPD, the Client undertakes to carry it out and to make it available to the COMPANY prior to the processing. The Client must keep this assessment updated for as long as the contract is valid. The COMPANY may assist the Client in carrying out and maintaining impact and prior consultation assessments, taking into account the nature of the processing and the information available to the COMPANY, by providing reasonable assistance in accordance with the obligations set out in the regulations.
- The COMPANY will notify the Client, without undue delay, of any security breach of the personal data in its care of which it becomes aware, together with all relevant information for the documentation and reporting of the incident. Notification will not required if said security breach is unlikely to pose a risk to the rights and freedoms of natural persons.
- Where possible, the COMPANY will assist the Client, taking into account the nature of the processing, through appropriate technical and organisational measures, to enable it to comply with its obligation to respond to data subjects’ requests to exercise their rights set out in Chapter III of the GDPR.
- The COMPANY expressly declares that it has sufficient guarantees to implement appropriate technical and organisational measures so that the processing regulated by this Contract complies with the data protection regulations, in particular the GDPR, and guarantees the protection of data subjects’ rights. In this regard, the COMPANY undertakes, if required, to make available to the Client all the information necessary to demonstrate compliance with the obligations set out in this Contract. Furthermore, it undertakes to permit and contribute to the performance of audits, including inspections, by the Client.
- The COMPANY will delete all personal data after the provision of processing services is complete, and will delete any copies, except where legally required to store them. Notwithstanding the foregoing, the COMPANY may store any data, duly blocked, for as long as any liability may arise from the Services provided.
17. OTHER AGREEMENTS.
17.1- Relationship between the parties: The relationships between the parties covered by this Agreement are those of natural and legal persons independent of each other and of third parties. Neither party, nor its employees, may act or be construed as acting as a representative or agent of the other, nor may their acts and omissions give rise to any relationship binding other parties as against third parties.
17.2.- Publicity: The COMPANY may publicise its relationship with the CLIENT by including the latter in its “Portfolio” of clients using any means of communication it chooses, such as its website. To do so, the CLIENT grants the COMPANY a non-exclusive license to use its identifying signs for such purposes during the validity of the present contract.
17.3.- Modifications: To be legally binding, any modification that either of the parties wishes to make to the present Contract must be made in writing and with prior consent of the other parties. Otherwise, the terms of the Contract agreed previously shall remain in force.
17.4- Transfer of the contract: The Parties may not transfer the rights and obligations arising from this contract without the other party’s express written consent in advance.
17.5 Partial invalidity: The invalidity of any provision of this Contract shall not render it null and void in its entirety, unless the invalid provision is essential to the transactions that are the subject of this Agreement.
17.6.- Waiver of rights: The non-exercise by either party of any right to which it may be entitled under this contract shall not be construed as a waiver thereof.
17.7.- Jurisdiction: The intervening parties agree that any litigation, discrepancy, question or claim resulting from the execution or interpretation of this Contract or related to it, directly or indirectly, shall be definitively resolved by expressly submitting, waiving any other jurisdiction that may correspond to them, to the Courts and Tribunals of Valladolid.