Terms and Conditions of Contract

The first party, ECONOCOM NEXICA, S.L.U. (hereinafter, “NEXICA”), is a company engaged in the design, management and provision of cloud services and professional services on IT infrastructures for companies that require advanced technological services in continuous operation.

The second party, the recipient of the services (hereinafter, “the Customer”), is represented by the undersigned, who declares that:

  1. He/She has the legal capacity to accept these terms and conditions for the provision of the services offered by NEXICA (hereinafter, "the Terms and Conditions"), on behalf of "the Customer".
  2. He/She has read and understood these Terms and Conditions and accepts them without any reservation.

Both parties agree that the provision of the services shall be subject to these Terms and Conditions, which shall govern the relationship between the parties, regardless of the service engaged by the Customer.

CLAUSES

1. Provision of the services

NEXICA shall provide the Customer with the services engaged (hereinafter, “the Services”), according to the features set out in the NEXICA proposal that the Customer has accepted (hereinafter, “the Proposal”) and in these Terms and Conditions.

In the event that the Customer wishes to engage new services, it will be sufficient to sign a single new proposal document, and these Terms and Conditions shall remain unaltered.

2. Changes to the services

As a result of technical developments and improvements to the Services, they may undergo variations or modifications, without such variations or modifications involving any change to the main and essential purpose of the Services. NEXICA may notify the Customer of such changes for information purposes. In the event that the Customer is not interested in the new conditions, the Customer may terminate the Services by giving 30 days' notice prior to the effective date of the decision, in accordance with the provisions of Clause 12, without NEXICA having to indemnify or compensate the Customer for this reason.

3. Price, invoicing and method of payment

3.1 NEXICA shall invoice the Customer for the Services provided in the amount set out in the Proposal (hereinafter "the Price"), according to the Services stipulated in the Proposal. The amounts set out in the Proposal, unless otherwise stated, do not include VAT or any other taxes or duties.

3.2 Payment of the Price shall be made in the terms and manner established in the Proposal. The items relating to service activation shall be invoiced upon confirmation of the service, in cash and in advance. NEXICA may invoice the part of the equipment purchased (hardware or software, etc.), dedicated exclusively to the Customer's project, at the time of delivery. For projects covering more than one of the Customer's branches, NEXICA will issue an invoice upon completion of the activation of the service for each of them.

3.3 The Price stipulated in the Proposal shall apply for the initial term, if established. However, during any extensions that may take place, NEXICA may change the Price of the Services under the Proposal for justified reasons, giving the Customer at least 15 calendar days' prior notice. In the event that, within one month of such notification, the Customer has not stated otherwise in writing, such change shall be deemed to have been accepted. In the event that the Customer does not agree to such change, NEXICA may terminate the provision of the Services under the Proposal, without NEXICA having to indemnify or compensate the Customer for such reason.

3.4 In the event that the Customer returns a bill or delays payment of the Price for more than 15 days from the due date of the invoice, whether for a regular instalment or a percentage of the Price, it shall be understood that the Customer is in default of payment. In such a case, the provisions of Law 3/2004, of 29 December, as amended by Law 15/2010, of 5 July, on Measures to Combat Late Payment in Commercial Transactions, shall apply, with the sum of the interest rate applied by the European Central Bank to its most recent main financing operation carried out before the first day of the calendar six-month period in question plus seven percentage points being applied to the total amount of the debt. In addition, the Customer shall be charged for the costs incurred in returning any bill and for cutting off the supply of the Services. Furthermore, total or partial non-payment of the Price shall entitle NEXICA to block access to the Customer's servers until the Customer pays the amounts owed.

4. Confidentiality

All written or verbal information, regardless of its nature or the medium on which it is presented, exchanged between the parties during and after the course of the business relationship shall have the status of confidential information.

The parties undertake to keep such information secret and to safeguard and implement all necessary measures as if it were their own confidential information and to use it solely for the performance of the Services covered by this agreement. Such information may not be disclosed in whole or in part to any third party.

The parties acknowledge that this undertaking of confidentiality, non-disclosure and non-reproduction is made both on their own behalf and on behalf of and for all persons acting on their behalf. This undertaking shall particularly ensure that neither party discloses the other party’s confidential information in a manner that could be used by any of their respective competitors.

Notwithstanding the foregoing, the parties are under no obligation of confidentiality in relation to information which:

  1. Is in the public domain at the time of the execution of the agreement, or which comes into the public domain during the term of the agreement.
  2. Is received by a third party and it is proved that the third party has not received the information directly or indirectly from either party.
  3. The receiving party is required to disclose by law, by any administrative or governmental body or authority, or by courts and tribunals.

The confidentiality provisions shall remain in force for the duration of this agreement as well as for a period of two (2) years after the end of this agreement.

5. Personal data

5.1 In compliance with the provisions of the European General Data Protection Regulation, we inform you of the following points:

Identification of the data controller:

 - Identity: ECONOCOM NEXICA, S.L.U.

- Address: C. Acer, 30, 1º 4ª Postcode: 08038 BARCELONA

 - Telephone: 900 800 296

- Email: rgpd@nexica.com

Purpose of the processing of your personal data:

At ECONOCOM NEXICA, S.L.U., we process your personal data in order to properly manage our professional and commercial relationship, as well as to contact the Customer to enable the provision of the Services.

We also wish to use your data to offer you products and services related to those requested by you, through any means, including electronic means, even after the termination of the business/contractual relationship.

The personal data provided will be kept for as long as the commercial and professional relationship is maintained and for a further five years in accordance with legal requirements. During this period, the data may be made available to the competent government authorities, upon request, for a justified cause.

6. Commencement of service

6.1 The Terms and Conditions shall be effective upon acceptance of the Proposal.

The Terms and Conditions will apply from the moment the service begins to be provided, which will be when the service is invoiced.

NEXICA shall initiate all activities for the activation of the services from the date of signing these Terms and Conditions, except in the following cases:

a) Where the Services require part or all of the payment in advance, NEXICA may reserve the right to initiate the activation process until it has received the established payment, without prejudice to NEXICA's right to terminate the service agreement in the event of non-payment within the agreed period.

b) In the event that the Customer needs to provide NEXICA with the information necessary for the proper provision of the Services.

6.2 In the event that it is necessary to install any equipment at the Customer's premises or offices, the Customer shall be responsible for requesting the necessary authorisations or permits at its own expense. Once the installation has been completed, the Customer shall give its approval, at which time NEXICA shall have the right to charge for the services provided.

7. Availability of the services

7.1 Unless otherwise stated in the Proposal or by the very nature of the Services, NEXICA undertakes to make every effort to guarantee the provision of the Services on an uninterrupted basis twenty-four (24) hours a day, every day of the year. However, NEXICA cannot, due to the nature of the Services, guarantee their full availability. Notwithstanding the foregoing, NEXICA shall not assume any liability for any incident that may occur in the Services attributable to third parties. Nor shall NEXICA be liable for unauthorised access by third parties to Customer information stored in the system, its loss or its corruption, provided that it has taken all the industry-standard technical measures and the legally applicable measures to ensure the security of its equipment and facilities.

7.2 NEXICA may temporarily interrupt the Customer's access to or availability of the Services for security reasons, or due to restructuring of NEXICA's IT resources in order to improve the provision or configuration of the Services. In any event, NEXICA shall make every effort to keep such interruptions to a minimum and to notify the Customer, to the extent possible and with reasonable notice, of any periods of time during which the Services are interrupted.

NEXICA shall not be liable for any interruption of the Services caused by force majeure, acts of God, the Customer, its personnel and/or the actions of third parties.

8. Subcontracting on behalf of the customer

In the event that any of the Services covered by the service agreement require the engaging of a third party on behalf of the Customer, the Customer authorises NEXICA to carry out such subcontracting. NEXICA shall inform the Customer of the subcontracting of the Services once it has been formalised and only prior to the commencement thereof in the event that the subcontracted service involves the processing of personal data by the subcontracted company. In such a case, NEXICA undertakes to contractually require the third party to comply with current legislation and, in particular, any regulations on data protection.

9. NEXICA's powers

9.1 NEXICA reserves the right to remove data and information, or to restrict access to it in the event that it becomes aware of a breach of the provisions of these Terms and Conditions or in the event that a government body, authority or judicial body so requests in the exercise of the powers legally attributed to it. In any event, NEXICA shall subsequently communicate this fact to the Customer.

9.2 In accordance with the provisions of Law 25/2007 of 18 October, on the retention of data relating to electronic communications and public communications networks, NEXICA informs the Customer that the obligation to retain data ceases after 12 months from the date on which the communication was made.

10. Obligations and responsibilities of the parties

10.1 The Customer guarantees that under no circumstances will the data hosted or transmitted on or through NEXICA’s equipment contain data or information that is illicit, illegal or infringes the intellectual or industrial property rights of third parties. The Customer shall be solely responsible for the data stored by the Customer on NEXICA's equipment and in connection with any judicial or extrajudicial claim relating to such data. In the event of the existence or occurrence of any criminal, civil or administrative offence, the Customer shall immediately inform NEXICA. In such an event, NEXICA may terminate the service agreement, without prejudice to any damages that may arise from such actions, and the Customer shall be liable to compensate NEXICA for the breach of these Terms and Conditions.

11. Limitation of liability

11.1 The Customer is solely responsible for the data stored by it on any component of NEXICA’s infrastructure for the Services. The Customer is also responsible for the software installed on the Customer's servers, the administration of which is not the responsibility of NEXICA, in particular with regard to licensing compliance as indicated in the section on intellectual property and compliance. In the event of the existence or occurrence of any criminal, civil or administrative offence, NEXICA may terminate the service agreement, without prejudice to any damages that may arise from such actions, for which the Customer shall be liable.

11.2 NEXICA shall be only and solely liable as provided for in the provisions of the corresponding service-level agreement (hereinafter SLA). In no event shall any compensation payable exceed the amount agreed in the SLA.

11.3 In any event, the parties agree that the maximum liability of the provider with regard to the Customer for any damage caused as a consequence of this agreement for any reason shall not exceed an amount equal to the price of the last annual instalment of this agreement.

Neither party shall be liable for any consequential damages, loss of business, financial or commercial loss, loss of profit, loss of revenue, loss of income, loss of data and/or loss of use.

11.4 In the event that the provision of the Services requires a password for the configuration of the Services or access to NEXICA's, the Customer's own or a third party's equipment, the Customer shall have access only to store, modify or delete data owned by the Customer. For this purpose, NEXICA shall provide the Customer and the technical contact persons authorised by the Customer with a username and password for access. The Customer shall keep under its sole control and responsibility the password assigned to it. NEXICA may modify this password at the Customer's request and shall notify the Customer by registered letter or by e-mail in encrypted form. The Customer shall be liable for any misuse of these passwords by the company's personnel or third parties, and shall hold NEXICA harmless against any claims for misuse of such passwords.

12. Intellectual property and compliance

The Customer grants NEXICA a non-exclusive licence to reproduce or copy the data hosted on the equipment solely in order to properly provide the Services. The Customer declares that it has the appropriate intellectual or industrial property rights to store the data that is transferred or hosted on NEXICA's equipment without infringing any third-party rights.

Therefore, the Customer guarantees full compliance with all the rules on software licensing of all the software that the Customer, without the express consent of NEXICA, has on its own systems hosted by NEXICA. Any liability, fine or penalty that the owner of such software may impose on or claim against NEXICA for this reason shall be borne entirely by the Customer. 

13. Duration and cancellation

13.1 The Services provided shall have a minimum duration of one (1) year unless otherwise indicated in the specific Proposal. Once this initial term has ended, if neither party has expressed their wish to terminate the agreement in writing within thirty calendar days prior to the end  of the initial term or, if any, prior to the end of an extension, it shall be automatically extended for successive terms equal to the initial one-year term.

13.2 Requests for total or partial cancellation of the services of a project must be made in writing and with a notice period of no less than thirty (30) days.

13.3 In the event that the Customer, prior to the end of the initial term or any of its extensions, terminates the Services in advance, the Services will be cancelled with effect from the last day of the month following the date of notice. In this case, the Customer shall indemnify NEXICA with the full amount of the agreed monthly payments, if any, that remain unpaid from the effective date of the termination until the date on which the agreement is due to end.

13.4 Once the service agreement extension period has been reached, the Customer may request the total or partial cancellation of any of the services that are part of such agreement without incurring a penalty, unless there are residual costs for renewal of licences, equipment or exclusive customer services that NEXICA has incurred during the extension phase of the agreement. In this case, NEXICA will invoice the customer for the total of these residual costs as long as it provides the corresponding documentation and justification.

13.5 In any event, the suspension or early cancellation of the Services for any of the reasons set out in these Terms and Conditions or for the exercise by the Customer of its right of termination, shall not entitle the Customer to a refund of the amounts paid for the provision of the Services corresponding to the current period. Notwithstanding the foregoing, the parties shall remain bound by those obligations which, by their very nature, survive the termination of the agreement.

13.6 In the event that the Customer decides to withdraw from a project before its completion, the Customer shall pay in full the price corresponding to the development phase of the project or service at the time of cancellation and, failing this, always a minimum corresponding to 35% of the total project, service or agreement signed, as a management fee.

13.7 In the event of termination of the agreement, NEXICA shall not proceed with the change and/or deprovision of the Services or equipment until the outstanding invoices have been paid, in accordance with the provisions of these Terms and Conditions.

14. Termination

These Terms and Conditions may be terminated in the following cases:

a) For breach by either party of the obligations established in the service agreement or in these Terms and Conditions, after the breaching party has been given 15 days to comply with the unfulfilled obligation. This period shall not apply in the event of non-payment or late payment of the Price.

b) The loss of legal personality of either contracting party or where either contracting party becomes insolvent or goes into liquidation.

c)  In the event that the Customer has been sanctioned by the Spanish Data Protection Agency, or in the event that such agency determines that the Customer has committed a breach of data protection.

15. Applicable law and competent jurisdiction

These Terms and Conditions shall be governed by and construed in accordance with Spanish law and shall be subject to the jurisdiction of the courts and tribunals of Barcelona, in the event that the Customer is a business owner or professional in the exercise of his/her duties, with waiver of any other jurisdiction that may be applicable.

16. Advice

The Customer declares and acknowledges having received advice prior to the signing of these Terms and Conditions, as well as the service agreement, by an advisor knowledgeable in the matter, as well as having been able to negotiate the terms and content of the aforementioned Terms and Conditions.

17. Invalidity and unenforceability of the clauses

If any provision of the Terms and Conditions or the service agreement is declared wholly or partly invalid or unenforceable, such invalidity or unenforceability shall affect only that provision or part thereof which is invalid or unenforceable, and the Terms and Conditions or the service agreement shall otherwise remain in full force and effect, with such provision or part thereof which is affected being deemed not to have been included.