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GENERAL CONTRACTING TERMS AND CONDITIONS
The first party, COM2002, S.L. (Hereinafter "NEXICA", is a company active in the field of telecommunications, offering –according to their customer's needs- managed services based on their own infrastructure (their own Data Center).
And the second party, the addressee of the services (hereinafter the "Client") who declares that:
- He/She is a person of legal age and with sufficient legal capacity to understand and accept these service provision services offered by NEXICA (hereinafter, "the General Conditions").
- He/She has read and understood these General Conditions and accepts them unreservedly.
Both parties agree to subject the provision of the services to these General Conditions, in accordance with the following:
CLAUSES
1. Provision of Services
NEXICA shall provide the contracted services (hereinafter, "the Services") to the Client in accordance with the provisions set out in the Service Provision Agreement and in these General Terms and Conditions.
In the event that the Client decides to contract new Services, it will be sufficient to sign a single Service Provision Agreement document and to maintain these General Terms and Conditions without any alteration.
2. Modification of the Services
As a result of the technical evolution of and improvement to the contracted Services, these Services may undergo variations or modifications that do not involve a modification of the principal and essential object of the Services. NEXICA may notify the Client regarding these modifications for informational purposes. In the event that the Client is not interested in the new terms and conditions, the Client may cancel the Service Provision Agreement by notifying NEXICA thirty (30) days before the effective date of the decision, in virtue of the provisions of Clause 12; NEXICA shall not be obliged to compensate the Client for this reason.
3. Price, Billing and Payment Method
3.1.- NEXICA shall invoice the Client for the Services provided for the amount established in the Service Provision Agreement (hereinafter "the Price"), according to the contracted Services established in the Service Provision Agreement. The amounts set out in the Service Provision Agreement, unless otherwise indicated, do not include VAT or any other taxes.
3.2.- Payment of the Price shall be made in the periods of time set out in the Service Provision Agreement. The items related to service activations and implementations shall be invoiced upon confirmation and paid for in cash in advance. NEXICA may invoice the part of the material supplied that is used exclusively for the Client project (hardware or software, etc.) upon delivery. For projects that involve installations at more than one branch of the Client's company, NEXICA shall issue an invoice to each branch upon termination of each service activation.
3.3.- The Price set out in the Service Provision Agreement shall be applicable for the initial validity period. However, during extensions of the validity period, if applicable, NEXICA may modify the Price of the Services that are the object of the Service Provision Agreement for justified reasons and must notify the Client at least fifteen (15) calendar days in advance. If, after one (1) month from the time of said notification, the Client has not indicated otherwise in writing, said change shall be understood as accepted. In the event that the Client doesn't agree with said change, NEXICA may cancel the provision of the Services that are the object of the Service Provision Agreement; NEXICA shall not be obliged to compensate the Client for this reason.
3.4.- In the event that the Client wishes to reject payment of a bill or takes more than fifteen (15) days, from the date of expiry of the invoice, to pay the Price, whether a periodic quota or a percentage of the Price, payment shall be understood to be late. In this event, the provisions of Law 3 of 29 December 2004, modified by Law 15 of 5 July 2010, on measures to combat failure to pay in commercial operations shall be applied; therefore, the interest rate applied by the European Central Bank in its most recent principal financing operation carried out before the first day of the calendar six-month period in question, plus seven percentage points, shall be applied to the total amount of the debt. Furthermore, the Client shall be charged for the expenses arising from rejecting any bill and from cutting off supply of the Services. Moreover, total or partial non-payment of the price shall empower NEXICA to block access to the Client's servers until the owed amounts are paid.
4. Confidentiality and Personal Data
4.1.- If, during the provision of the Services, either of the parties becomes aware of confidential data of the other party, both parties undertake to treat confidentially and not to reproduce, publish or disseminate any information regarding the data, systems or any information relating to their professional activity, including information about third parties that the Client may host or transmit through the technical equipment of NEXICA, except when ordered by a legal injunction or as a consequence of compliance with a legal obligation. When the Service Provision Agreement has expired, each party shall erase and destroy any and all information regarding this relationship that may be stored on any support or that may have been reproduced by any procedure, except any that it is legally necessary to preserve.
4.2.- If NEXICA accesses or automatically processes personal data owned by the Client, NEXICA undertakes to comply with all the provisions of Law 15 of 13 December 1999 on personal data protection (hereinafter, LOPD), and Royal Decree 1720 of 21 December 2007, which approves the Regulations that develop the aforementioned LOPD. In this regard, NEXICA shall perform said processing with the sole purpose of providing the contracted Services. NEXICA undertakes to apply the legally compulsory security measures, in accordance with current legislation. The Client states that the data to be treated by NEXICA require a basic level of security and that, if the processed data should require higher levels of security, the Client shall notify NEXICA of this fact in writing, in a demonstrable manner, and shall indicate the measures to be taken. Furthermore, once the contractual Service has been fulfilled, NEXICA shall return or destroy the personal data to which it has had access, together with any support or documents which may contain any personal data subject to processing. The data shall not be destroyed if there is a legal provision in place that requires said data to be preserved.
4.3.- The Client expressly authorizes NEXICA to use, publish and/or disseminate, for advertising purposes, its company name, brand, logo and services and/or the contracted project and undertakes not to harm the image of the Client and to act always for the benefit of both Parties; NEXICA shall not acquire any intellectual or industrial property rights on these elements through these actions.
5. Start of Provision of the Service
5.1.- The term of the General Terms and Conditions shall be the same as that of Service Provision Agreement.
The General Terms and Conditions shall enter into force at the start of the provision of the contracted service; this circumstance shall coincide with the invoicing of the service.
The activities for the service activations shall begin to be provided by NEXICA from the date of signature of these General Terms and Conditions, except in the following cases:
a) When, in virtue of the contracted Services, payment of part or of all the Services is demanded in advance, NEXICA may reserve the right not to begin the activation process until the established payment is received, without prejudice to its right that, in the event of non-payment within the agreed time period, NEXICA may cancel the Service Provision Agreement.
b) In the event that the Client is required to provide NEXICA with the necessary information for the correct provision of the Services.
5.2.- In the event that it is necessary to install any element in the premises or offices of the Client, the Client shall be responsible for requesting and paying for the necessary authorizations or permits. When said installation has been completed, the Client shall approve the installation and at this time, NEXICA shall be entitled to charge for the provided services.
6. Availability of the Services
6.1.- NEXICA undertakes to make every effort to guarantee the uninterrupted provision of the services 24 hours a day, 365 days a year, except when NEXICA cannot guarantee their full availability as a consequence of the nature of the contracted Services themselves. In any event and without prejudice to the obligation to make every effort, the uninterrupted provision of services shall not be considered as an obligation of NEXICA that is subject to liability.
6.2.- NEXICA may temporary interrupt access to or availability of the Services to the Client for security reasons or due to restructuring of the IT resources of NEXICA in order to improve the provision or configuration of the Services. In any event, NEXICA shall make every effort to ensure that said interruptions affect the Client as little as possible and to notify it with reasonable notice and as far as possible regarding said interruption periods.
NEXICA shall not be liable for interruptions of the Services due to force majeure, accidental causes, the Client, its staff and/or the actions of third parties.
7. Contracting in Name and Representation of the Client
If one of the Services that are the object of the Service Provision Agreement requires the contracting of a third party in the name and representation of the Client, the Client hereby authorises NEXICA so that it may carry out said contracting. Once formalised, NEXICA shall inform the Client of the subcontracting of the Services before commencing the subcontracting if the subcontracted service involves the processing of personal data by the subcontracted company. In this case, NEXICA undertakes to demand in a binding agreement that the third party complies with the laws in force, particularly the regulations on data protection.
8. Powers of NEXICA
8.1.- NEXICA reserves the right to remove the data and information or to restrict access thereto in the event of becoming aware that the provisions of these General Terms and Conditions have been breached or in the event of being so requested by the public authorities or any legal authority or body in the exercise of the powers legally attributable to them. In any event, NEXICA shall subsequently notify the Client of this fact.
8.2.- In accordance with the provisions of Law 25 of 18 October 2007 on conservation of data relating to electronic communications and public communications networks, NEXICA informs the Client that the obligation to conserve data expires after 12 months from the data in which the communication takes place.
8.3.- The above notwithstanding, the Client charges NEXICA with providing the service of reviewing and controlling the access of its users, for the purposes of ensuring the security of the data and of complying with the obligations on data protection relating to control of access, in virtue of Royal Decree 1720/2007 and the LOPD. Under this premise, the client may charge NEXICA with maintaining an access log associated with the contracted services. In any event, NEXICA, as the party responsible for processing the Client's data, shall process these data in accordance with the Client's instructions. The Client expressly states that the control and recording of the information set out in this section is known to all the users of its systems and complies fully with the regulations on data protection. This service is not included in the price for the provision of the Services contracted, and the additional cost shall therefore be paid by the Client.
9. Obligations and Responsibilities of the Parties
9.1.- The Client ensures that in no event shall the data hosted on or transmitted through or by the equipment of NEXICA contain illicit or illegal data or information, or data that infringes the intellectual or industrial property rights of third parties. The Client shall be exclusively responsible for the data hosted by the Client in the equipment of NEXICA and regarding any judicial or extrajudicial claim related to said data. In the event of there being or the Client incurring any action that involves criminal, civil or administrative sanction, the Client shall inform NEXICA immediately, and NEXICA may cancel the Service Provision Agreement without prejudice to the damages that may derive from these actions; the Client shall be liable for said damages and shall compensate NEXICA for its failure to comply with these General Terms and Conditions.
9.2.- In the event that during the provision of the Services NEXICA provides the Client with dedicated equipment for its exclusive use, either leased or sold, the Client undertakes to use it correctly and for purposes that are appropriate to the service that is the object of the Service Provision Agreement. In any event, the Client shall be liable for the data and information transmitted through the use of said equipment and for any damages that may be caused by improper use of the equipment. If it becomes necessary to request any permit or administrative authorization for the use or installation of the equipment, the Client shall be responsible for obtaining said permits or authorizations and paying for them. In the event of any incident during the provision of the Services, NEXICA undertakes to make every effort to repair the equipment or put them into operation as soon as possible.
9.3.- The guarantee offered by NEXICA regarding the equipment specified in clause 9.2. when they are owned by the Client is the same as the manufacturer's guarantee in each case. The intervention of NEXICA shall be limited solely to the procedure of changing the defective parts, provided that this is covered by the manufacturer's guarantee. The costs of returning defective products shall be paid by the Client, as the manufacturer does not include the cost of transport for sending material for repair in its guarantee. NEXICA shall in no event be liable for the installed materials if said materials have been modified or handled by the Client or by a third party not authorized by NEXICA.
The guarantee offered by NEXICA regarding the equipment specified in clause 9.2. when they are leased is of one (1) month from the date of the technical intervention, and NEXICA shall not be liable for any damages that may be derived from said technical intervention. NEXICA shall not be liable for any damages to the Client or to third parties caused by the elements, whether hardware or software, transmission equipment or networks that it supplies to the Client for the provision of the Services and that have been manufactured or distributed by a third party. In any event, the Client shall make claims before the third party for any damages caused by any of the elements described above during their operation. The Client expressly states that it is aware of the technical characteristics of the equipment or services installed or sold by NEXICA and that both are fully interoperable with its equipment, systems and programs. For this reason, NEXICA shall, in no event, be liable for the interoperability with the equipment, systems and programs of the Client.
9.4.- Transport Costs. The costs of delivering the material between the Client and NEXICA shall be paid by the Client.
10. Limitation and Exoneration of Liability
10.1.- The Client is exclusively responsible for the data hosted by the Client in any of the elements of the NEXICA Service infrastructure. The Client is also responsible for the hosted installed software on the servers of the Client when NEXICA is not responsible for its administration. In the event of the client incurring any action that involves criminal, civil or administrative sanction, NEXICA may cancel the Service Provision Agreement without prejudice to the damages that may derive from these actions; the Client shall be liable for said damages.
10.2.- NEXICA shall not assume any liability for any incident that may occur in the service that is attributable to the Client, its staff, third parties and/or due to force majeure or accidental causes. NEXICA shall not be liable for unauthorized access by third parties to the Client's information stored in the system, or for loss or corruption of said information, provided that it has applied all the technical measures that are usual in the industry and the legally applicable measures to ensure the security of its equipment or facilities.
10.3.- NEXICA shall not be liable for the content of the information contained in the equipment. The Client shall be solely responsible for any claims or legal, judicial or extrajudicial action initiated by third parties due to said information and the Client shall undertake any and all expenses, costs and compensation imputed to NEXICA as a result of said claims or legal actions.
NEXICA shall only be liable for what has been expressly agreed in the General Terms and Conditions or in virtue of the provisions of the law. NEXICA shall be exempt from any type of liability toward the Client in the event of anomalies in the Service that are due to actions directly attributable to the Client, personnel that answer to the Client or third parties. NEXICA shall not be liable for damage, lost business, income or profits, emerging damages, or loss of earnings, except where culpable action by NEXICA has been proven. NEXICA shall not be liable for problems deriving from the lack of access or connectivity to the Internet when said lack is due to causes beyond the control of NEXICA or to causes that cannot have been foreseen, such as accidental causes or force majeure. NEXICA does not control the legality of the content transmitted via, stored on, received by or accessible through the contracted Services and shall not be liable for any actions that may derive therefrom.
10.3.- NEXICA shall be solely and exclusively liable in accordance with the provisions of the corresponding Service Level Agreement (SLA). Compensation shall in no event exceed that agreed in the SLA. Therefore, the maximum liability of NEXICA for damages caused shall be limited in total to an amount equivalent to a monthly quota applicable in the current year for the affected service. To these effects, an incorrect act or omission shall be understood to be any involuntary, real or alleged failure of NEXICA to comply with its obligations or any negligence, error or omission, inexact or untrue statement, which takes place exclusively in the exercise of the professional Services provided by NEXICA.
10.5.- In the event that the provision of the Services requires an access code for the configuration of the Services or access to the equipment of NEXICA, of the Client or of a third party, the Client shall only access in order to store, modify or delete data owned by the Client. To these effects, NEXICA shall provide the Client and the technical contact persons authorized by the Client with a user name and password so that they may obtain access. The Client shall keep the password assigned to it under its exclusive control and responsibility. NEXICA may modify said password at the request of the Client and shall notify the Client by certified post or by means of encrypted e-mail. The Client shall assume liability for any improper use of these passwords by company personnel or by third parties and shall exempt NEXICA from any liability from any claim due to improper use of said passwords.
11. Intellectual Property of the Contents and their Reproduction
The Client grants NEXICA a non-exclusive license to reproduce or copy the data hosted on the equipment solely and exclusively for purposes of the correct provision of the Services. The Client states that it has the appropriate intellectual or industrial property rights to host the data transferred through or hosted on the NEXICA equipment and that this does not infringe the rights of third parties.
12. Term and Cancellation
12.1.- The term of each Service Provision Agreement shall be applicable to all the Services included therein (hereinafter, "the Project") and shall be agreed on an individual basis with its expiry date being automatically extended by monthly periods. The minimum term shall be one (1) month.
12.2.- Requests for the total or partial removal of services from a Project must be made in writing and with at least thirty (30) days' notice.
12.3.- Any removals of services or reductions in their prices that take place before the completion date of an agreement, shall entitle NEXICA to make a charge to the Client equal to the sum of the amounts pending payment for said services from the effective date of the cancellation until the planned date for the completion of the agreement.
12.4.- Once the extension period of the Service Provision Agreement is reached, the Client may request the total or partial removal of any of the services that make up said agreement without incurring any penalisation, except when there are residual costs from the renewal of licences, equipment or services exclusive to the Client that NEXICA has incurred during the extension period of the Agreement. In this event NEXICA shall bill the Client for the full amount of said residual costs provided that it supplies the relevant documentation and justification.
12.5.- In any event, early suspension or cancellation of the Services for any of the causes set out in these Terms and Conditions or due to the Client exercising its right of cancellation, shall not entitle the Client to return of the amounts paid for provision of the Service corresponding to the current period. The above notwithstanding, the Parties shall be bound by the obligations that, due their nature, survive the cancellation of the Agreement.
12.6.- In the event that the Client decides to cease carrying out the project before completion, the Client shall pay in full the price corresponding to the development phase of the project or service at the time of cancellation or a minimum of 35% of the total price of the project, contract or service signed, as management expenses.
12.7.- In the event of cancellation of the Agreement, NEXICA shall not change and/or cease provision of the Services or equipment until the payment of the invoices due has been made, in compliance with the provisions of these General Terms and Conditions.
13. Cancellation of the Service Provision Agreement
The Service Provision Agreement may be cancelled in the following circumstances: a) Due to noncompliance by either of the Parties with the obligations set out in the Service Provision Agreement or in these General Terms and Conditions; the party failing to comply shall first be requested to show compliance with said obligation within 15 days. This time period shall not be applicable in the event of non-payment or delay in the payment of the Price. b) Cancellation of the corporate status of either of the Parties or entry of either party into voluntary receivership or liquidation. c) If the Client has been fined by the Data Protection Agency or if said agency determines that a breach has been committed in data protection. d) If the Client uses the Services to carry out any of the following activities: illegal activities, mail bombing, publishing "cracks" or codes for programs protected by Spanish legislation on intellectual property, spamming, using the Services to exchange documents protected by intellectual or industrial property rights or any other that may be declared illegal in the future by a court or that does not comply with legislation. In any event, cancellation of the Agreement shall not exonerate the Parties from compliance with their pending obligations.
14. Applicable Law and Jurisdiction
These General Terms and Conditions shall be governed and interpreted in accordance with the laws of Spain and shall be subject to the jurisdiction of the courts and tribunals of Barcelona, in the event that the Client is a business person or professional carrying out his or her functions, expressly waiving recourse to its own jurisdiction.
15. Advice
The Client states and acknowledges that it has received advice from an expert on the subject, whose fees will be paid for by the Client, before signing these General Terms and Conditions and the Service Provision Agreement, and that it has been able to negotiate the terms and contents of the aforementioned General Terms and Conditions.
16. Nullity and Invalidity of the Clauses
If any of the clauses of the General Terms and Conditions or the Service Provision Agreement are declared totally or partially null or invalid, said nullity or invalidity shall affect only the provision or part thereof that is null or invalid and the General Terms and Conditions or the Service Provision Agreement shall remain in force in all remaining aspects and said provision or part thereof shall be understood not to be applied.
The first party, COM2002, S.L. (Hereinafter "NEXICA", is a company active in the field of telecommunications, offering –according to their customer's needs- managed services based on their own infrastructure (their own Data Center).
And the second party, the addressee of the services (hereinafter the "Client") who declares that:
- He/She is a person of legal age and with sufficient legal capacity to understand and accept these service provision services offered by NEXICA (hereinafter, "the General Conditions").
- He/She has read and understood these General Conditions and accepts them unreservedly.
Both parties agree to subject the provision of the services to these General Conditions, in accordance with the following:
CLAUSES
1. Provision of Services
NEXICA shall provide the contracted services (hereinafter, "the Services") to the Client in accordance with the provisions set out in the Service Provision Agreement and in these General Terms and Conditions.
In the event that the Client decides to contract new Services, it will be sufficient to sign a single Service Provision Agreement document and to maintain these General Terms and Conditions without any alteration.
2. Modification of the Services
As a result of the technical evolution of and improvement to the contracted Services, these Services may undergo variations or modifications that do not involve a modification of the principal and essential object of the Services. NEXICA may notify the Client regarding these modifications for informational purposes. In the event that the Client is not interested in the new terms and conditions, the Client may cancel the Service Provision Agreement by notifying NEXICA thirty (30) days before the effective date of the decision, in virtue of the provisions of Clause 12; NEXICA shall not be obliged to compensate the Client for this reason.
3. Price, Billing and Payment Method
3.1.- NEXICA shall invoice the Client for the Services provided for the amount established in the Service Provision Agreement (hereinafter "the Price"), according to the contracted Services established in the Service Provision Agreement. The amounts set out in the Service Provision Agreement, unless otherwise indicated, do not include VAT or any other taxes.
3.2.- Payment of the Price shall be made in the periods of time set out in the Service Provision Agreement. The items related to service activations and implementations shall be invoiced upon confirmation and paid for in cash in advance. NEXICA may invoice the part of the material supplied that is used exclusively for the Client project (hardware or software, etc.) upon delivery. For projects that involve installations at more than one branch of the Client's company, NEXICA shall issue an invoice to each branch upon termination of each service activation.
3.3.- The Price set out in the Service Provision Agreement shall be applicable for the initial validity period. However, during extensions of the validity period, if applicable, NEXICA may modify the Price of the Services that are the object of the Service Provision Agreement for justified reasons and must notify the Client at least fifteen (15) calendar days in advance. If, after one (1) month from the time of said notification, the Client has not indicated otherwise in writing, said change shall be understood as accepted. In the event that the Client doesn't agree with said change, NEXICA may cancel the provision of the Services that are the object of the Service Provision Agreement; NEXICA shall not be obliged to compensate the Client for this reason.
3.4.- In the event that the Client wishes to reject payment of a bill or takes more than fifteen (15) days, from the date of expiry of the invoice, to pay the Price, whether a periodic quota or a percentage of the Price, payment shall be understood to be late. In this event, the provisions of Law 3 of 29 December 2004, modified by Law 15 of 5 July 2010, on measures to combat failure to pay in commercial operations shall be applied; therefore, the interest rate applied by the European Central Bank in its most recent principal financing operation carried out before the first day of the calendar six-month period in question, plus seven percentage points, shall be applied to the total amount of the debt. Furthermore, the Client shall be charged for the expenses arising from rejecting any bill and from cutting off supply of the Services. Moreover, total or partial non-payment of the price shall empower NEXICA to block access to the Client's servers until the owed amounts are paid.
4. Confidentiality and Personal Data
4.1.- If, during the provision of the Services, either of the parties becomes aware of confidential data of the other party, both parties undertake to treat confidentially and not to reproduce, publish or disseminate any information regarding the data, systems or any information relating to their professional activity, including information about third parties that the Client may host or transmit through the technical equipment of NEXICA, except when ordered by a legal injunction or as a consequence of compliance with a legal obligation. When the Service Provision Agreement has expired, each party shall erase and destroy any and all information regarding this relationship that may be stored on any support or that may have been reproduced by any procedure, except any that it is legally necessary to preserve.
4.2.- If NEXICA accesses or automatically processes personal data owned by the Client, NEXICA undertakes to comply with all the provisions of Law 15 of 13 December 1999 on personal data protection (hereinafter, LOPD), and Royal Decree 1720 of 21 December 2007, which approves the Regulations that develop the aforementioned LOPD. In this regard, NEXICA shall perform said processing with the sole purpose of providing the contracted Services. NEXICA undertakes to apply the legally compulsory security measures, in accordance with current legislation. The Client states that the data to be treated by NEXICA require a basic level of security and that, if the processed data should require higher levels of security, the Client shall notify NEXICA of this fact in writing, in a demonstrable manner, and shall indicate the measures to be taken. Furthermore, once the contractual Service has been fulfilled, NEXICA shall return or destroy the personal data to which it has had access, together with any support or documents which may contain any personal data subject to processing. The data shall not be destroyed if there is a legal provision in place that requires said data to be preserved.
4.3.- The Client expressly authorizes NEXICA to use, publish and/or disseminate, for advertising purposes, its company name, brand, logo and services and/or the contracted project and undertakes not to harm the image of the Client and to act always for the benefit of both Parties; NEXICA shall not acquire any intellectual or industrial property rights on these elements through these actions.
5. Start of Provision of the Service
5.1.- The term of the General Terms and Conditions shall be the same as that of Service Provision Agreement.
The General Terms and Conditions shall enter into force at the start of the provision of the contracted service; this circumstance shall coincide with the invoicing of the service.
The activities for the service activations shall begin to be provided by NEXICA from the date of signature of these General Terms and Conditions, except in the following cases:
a) When, in virtue of the contracted Services, payment of part or of all the Services is demanded in advance, NEXICA may reserve the right not to begin the activation process until the established payment is received, without prejudice to its right that, in the event of non-payment within the agreed time period, NEXICA may cancel the Service Provision Agreement.
b) In the event that the Client is required to provide NEXICA with the necessary information for the correct provision of the Services.
5.2.- In the event that it is necessary to install any element in the premises or offices of the Client, the Client shall be responsible for requesting and paying for the necessary authorizations or permits. When said installation has been completed, the Client shall approve the installation and at this time, NEXICA shall be entitled to charge for the provided services.
6. Availability of the Services
6.1.- NEXICA undertakes to make every effort to guarantee the uninterrupted provision of the services 24 hours a day, 365 days a year, except when NEXICA cannot guarantee their full availability as a consequence of the nature of the contracted Services themselves. In any event and without prejudice to the obligation to make every effort, the uninterrupted provision of services shall not be considered as an obligation of NEXICA that is subject to liability.
6.2.- NEXICA may temporary interrupt access to or availability of the Services to the Client for security reasons or due to restructuring of the IT resources of NEXICA in order to improve the provision or configuration of the Services. In any event, NEXICA shall make every effort to ensure that said interruptions affect the Client as little as possible and to notify it with reasonable notice and as far as possible regarding said interruption periods.
NEXICA shall not be liable for interruptions of the Services due to force majeure, accidental causes, the Client, its staff and/or the actions of third parties.
7. Contracting in Name and Representation of the Client
If one of the Services that are the object of the Service Provision Agreement requires the contracting of a third party in the name and representation of the Client, the Client hereby authorises NEXICA so that it may carry out said contracting. Once formalised, NEXICA shall inform the Client of the subcontracting of the Services before commencing the subcontracting if the subcontracted service involves the processing of personal data by the subcontracted company. In this case, NEXICA undertakes to demand in a binding agreement that the third party complies with the laws in force, particularly the regulations on data protection.
8. Powers of NEXICA
8.1.- NEXICA reserves the right to remove the data and information or to restrict access thereto in the event of becoming aware that the provisions of these General Terms and Conditions have been breached or in the event of being so requested by the public authorities or any legal authority or body in the exercise of the powers legally attributable to them. In any event, NEXICA shall subsequently notify the Client of this fact.
8.2.- In accordance with the provisions of Law 25 of 18 October 2007 on conservation of data relating to electronic communications and public communications networks, NEXICA informs the Client that the obligation to conserve data expires after 12 months from the data in which the communication takes place.
8.3.- The above notwithstanding, the Client charges NEXICA with providing the service of reviewing and controlling the access of its users, for the purposes of ensuring the security of the data and of complying with the obligations on data protection relating to control of access, in virtue of Royal Decree 1720/2007 and the LOPD. Under this premise, the client may charge NEXICA with maintaining an access log associated with the contracted services. In any event, NEXICA, as the party responsible for processing the Client's data, shall process these data in accordance with the Client's instructions. The Client expressly states that the control and recording of the information set out in this section is known to all the users of its systems and complies fully with the regulations on data protection. This service is not included in the price for the provision of the Services contracted, and the additional cost shall therefore be paid by the Client.
9. Obligations and Responsibilities of the Parties
9.1.- The Client ensures that in no event shall the data hosted on or transmitted through or by the equipment of NEXICA contain illicit or illegal data or information, or data that infringes the intellectual or industrial property rights of third parties. The Client shall be exclusively responsible for the data hosted by the Client in the equipment of NEXICA and regarding any judicial or extrajudicial claim related to said data. In the event of there being or the Client incurring any action that involves criminal, civil or administrative sanction, the Client shall inform NEXICA immediately, and NEXICA may cancel the Service Provision Agreement without prejudice to the damages that may derive from these actions; the Client shall be liable for said damages and shall compensate NEXICA for its failure to comply with these General Terms and Conditions.
9.2.- In the event that during the provision of the Services NEXICA provides the Client with dedicated equipment for its exclusive use, either leased or sold, the Client undertakes to use it correctly and for purposes that are appropriate to the service that is the object of the Service Provision Agreement. In any event, the Client shall be liable for the data and information transmitted through the use of said equipment and for any damages that may be caused by improper use of the equipment. If it becomes necessary to request any permit or administrative authorization for the use or installation of the equipment, the Client shall be responsible for obtaining said permits or authorizations and paying for them. In the event of any incident during the provision of the Services, NEXICA undertakes to make every effort to repair the equipment or put them into operation as soon as possible.
9.3.- The guarantee offered by NEXICA regarding the equipment specified in clause 9.2. when they are owned by the Client is the same as the manufacturer's guarantee in each case. The intervention of NEXICA shall be limited solely to the procedure of changing the defective parts, provided that this is covered by the manufacturer's guarantee. The costs of returning defective products shall be paid by the Client, as the manufacturer does not include the cost of transport for sending material for repair in its guarantee. NEXICA shall in no event be liable for the installed materials if said materials have been modified or handled by the Client or by a third party not authorized by NEXICA.
The guarantee offered by NEXICA regarding the equipment specified in clause 9.2. when they are leased is of one (1) month from the date of the technical intervention, and NEXICA shall not be liable for any damages that may be derived from said technical intervention. NEXICA shall not be liable for any damages to the Client or to third parties caused by the elements, whether hardware or software, transmission equipment or networks that it supplies to the Client for the provision of the Services and that have been manufactured or distributed by a third party. In any event, the Client shall make claims before the third party for any damages caused by any of the elements described above during their operation. The Client expressly states that it is aware of the technical characteristics of the equipment or services installed or sold by NEXICA and that both are fully interoperable with its equipment, systems and programs. For this reason, NEXICA shall, in no event, be liable for the interoperability with the equipment, systems and programs of the Client.
9.4.- Transport Costs. The costs of delivering the material between the Client and NEXICA shall be paid by the Client.
10. Limitation and Exoneration of Liability
10.1.- The Client is exclusively responsible for the data hosted by the Client in any of the elements of the NEXICA Service infrastructure. The Client is also responsible for the hosted installed software on the servers of the Client when NEXICA is not responsible for its administration. In the event of the client incurring any action that involves criminal, civil or administrative sanction, NEXICA may cancel the Service Provision Agreement without prejudice to the damages that may derive from these actions; the Client shall be liable for said damages.
10.2.- NEXICA shall not assume any liability for any incident that may occur in the service that is attributable to the Client, its staff, third parties and/or due to force majeure or accidental causes. NEXICA shall not be liable for unauthorized access by third parties to the Client's information stored in the system, or for loss or corruption of said information, provided that it has applied all the technical measures that are usual in the industry and the legally applicable measures to ensure the security of its equipment or facilities.
10.3.- NEXICA shall not be liable for the content of the information contained in the equipment. The Client shall be solely responsible for any claims or legal, judicial or extrajudicial action initiated by third parties due to said information and the Client shall undertake any and all expenses, costs and compensation imputed to NEXICA as a result of said claims or legal actions.
NEXICA shall only be liable for what has been expressly agreed in the General Terms and Conditions or in virtue of the provisions of the law. NEXICA shall be exempt from any type of liability toward the Client in the event of anomalies in the Service that are due to actions directly attributable to the Client, personnel that answer to the Client or third parties. NEXICA shall not be liable for damage, lost business, income or profits, emerging damages, or loss of earnings, except where culpable action by NEXICA has been proven. NEXICA shall not be liable for problems deriving from the lack of access or connectivity to the Internet when said lack is due to causes beyond the control of NEXICA or to causes that cannot have been foreseen, such as accidental causes or force majeure. NEXICA does not control the legality of the content transmitted via, stored on, received by or accessible through the contracted Services and shall not be liable for any actions that may derive therefrom.
10.3.- NEXICA shall be solely and exclusively liable in accordance with the provisions of the corresponding Service Level Agreement (SLA). Compensation shall in no event exceed that agreed in the SLA. Therefore, the maximum liability of NEXICA for damages caused shall be limited in total to an amount equivalent to a monthly quota applicable in the current year for the affected service. To these effects, an incorrect act or omission shall be understood to be any involuntary, real or alleged failure of NEXICA to comply with its obligations or any negligence, error or omission, inexact or untrue statement, which takes place exclusively in the exercise of the professional Services provided by NEXICA.
10.5.- In the event that the provision of the Services requires an access code for the configuration of the Services or access to the equipment of NEXICA, of the Client or of a third party, the Client shall only access in order to store, modify or delete data owned by the Client. To these effects, NEXICA shall provide the Client and the technical contact persons authorized by the Client with a user name and password so that they may obtain access. The Client shall keep the password assigned to it under its exclusive control and responsibility. NEXICA may modify said password at the request of the Client and shall notify the Client by certified post or by means of encrypted e-mail. The Client shall assume liability for any improper use of these passwords by company personnel or by third parties and shall exempt NEXICA from any liability from any claim due to improper use of said passwords.
11. Intellectual Property of the Contents and their Reproduction
The Client grants NEXICA a non-exclusive license to reproduce or copy the data hosted on the equipment solely and exclusively for purposes of the correct provision of the Services. The Client states that it has the appropriate intellectual or industrial property rights to host the data transferred through or hosted on the NEXICA equipment and that this does not infringe the rights of third parties.
12. Term and Cancellation
12.1.- The term of each Service Provision Agreement shall be applicable to all the Services included therein (hereinafter, "the Project") and shall be agreed on an individual basis with its expiry date being automatically extended by monthly periods. The minimum term shall be one (1) month.
12.2.- Requests for the total or partial removal of services from a Project must be made in writing and with at least thirty (30) days' notice.
12.3.- Any removals of services or reductions in their prices that take place before the completion date of an agreement, shall entitle NEXICA to make a charge to the Client equal to the sum of the amounts pending payment for said services from the effective date of the cancellation until the planned date for the completion of the agreement.
12.4.- Once the extension period of the Service Provision Agreement is reached, the Client may request the total or partial removal of any of the services that make up said agreement without incurring any penalisation, except when there are residual costs from the renewal of licences, equipment or services exclusive to the Client that NEXICA has incurred during the extension period of the Agreement. In this event NEXICA shall bill the Client for the full amount of said residual costs provided that it supplies the relevant documentation and justification.
12.5.- In any event, early suspension or cancellation of the Services for any of the causes set out in these Terms and Conditions or due to the Client exercising its right of cancellation, shall not entitle the Client to return of the amounts paid for provision of the Service corresponding to the current period. The above notwithstanding, the Parties shall be bound by the obligations that, due their nature, survive the cancellation of the Agreement.
12.6.- In the event that the Client decides to cease carrying out the project before completion, the Client shall pay in full the price corresponding to the development phase of the project or service at the time of cancellation or a minimum of 35% of the total price of the project, contract or service signed, as management expenses.
12.7.- In the event of cancellation of the Agreement, NEXICA shall not change and/or cease provision of the Services or equipment until the payment of the invoices due has been made, in compliance with the provisions of these General Terms and Conditions.
13. Cancellation of the Service Provision Agreement
The Service Provision Agreement may be cancelled in the following circumstances: a) Due to noncompliance by either of the Parties with the obligations set out in the Service Provision Agreement or in these General Terms and Conditions; the party failing to comply shall first be requested to show compliance with said obligation within 15 days. This time period shall not be applicable in the event of non-payment or delay in the payment of the Price. b) Cancellation of the corporate status of either of the Parties or entry of either party into voluntary receivership or liquidation. c) If the Client has been fined by the Data Protection Agency or if said agency determines that a breach has been committed in data protection. d) If the Client uses the Services to carry out any of the following activities: illegal activities, mail bombing, publishing "cracks" or codes for programs protected by Spanish legislation on intellectual property, spamming, using the Services to exchange documents protected by intellectual or industrial property rights or any other that may be declared illegal in the future by a court or that does not comply with legislation. In any event, cancellation of the Agreement shall not exonerate the Parties from compliance with their pending obligations.
14. Applicable Law and Jurisdiction
These General Terms and Conditions shall be governed and interpreted in accordance with the laws of Spain and shall be subject to the jurisdiction of the courts and tribunals of Barcelona, in the event that the Client is a business person or professional carrying out his or her functions, expressly waiving recourse to its own jurisdiction.
15. Advice
The Client states and acknowledges that it has received advice from an expert on the subject, whose fees will be paid for by the Client, before signing these General Terms and Conditions and the Service Provision Agreement, and that it has been able to negotiate the terms and contents of the aforementioned General Terms and Conditions.
16. Nullity and Invalidity of the Clauses
If any of the clauses of the General Terms and Conditions or the Service Provision Agreement are declared totally or partially null or invalid, said nullity or invalidity shall affect only the provision or part thereof that is null or invalid and the General Terms and Conditions or the Service Provision Agreement shall remain in force in all remaining aspects and said provision or part thereof shall be understood not to be applied.