Terms and Conditions of Contract

On the one part, COM2002, S.L.U. (hereinafter, “NEXICA”), is a company that carries out its activities in the field of systems and network integration and management, providing Internet services and managed ICT services.

On the other part, the recipient of the services (hereinafter "the Customer"), who declares that:

I. He or she is of legal age and has sufficient legal capacity to understand and accept these terms and conditions for the provision of the services offered by NEXICA (hereinafter, the “Terms and Conditions”).
II. He or she has read and understands these Terms and Conditions and accepts them without any reservation.

Both parties agree that the provision of the services shall be subject to these contract terms and conditions (hereinafter the “Terms and Conditions”), which shall govern the relationship between the parties, regardless of the service purchased by the Customer.

CLAUSES

1. Provision of Services

NEXICA shall provide the Customer with the services purchased (hereinafter, the “Services”), in accordance with the provisions set out in the Service Agreement and in these Terms and Conditions.

In the event that the Customer wishes to purchase new Services, it will be sufficient to sign a single Service Agreement document, where these Terms and Conditions shall remain without any alteration whatsoever.

2. Changes in the Services

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

3. Price, invoicing and payment method

3.1.- NEXICA shall invoice the Customer for the Services rendered in the amount established in the Service Agreement, according to the Services purchased as stipulated in the Service Agreement (hereinafter “the Price”). The amounts set out in the Service Agreement, unless otherwise stated, do not include VAT or any other taxes or charges.

3.2.- Payment of the Price shall be made within the periods and in the form established in the Service Agreement. Items relating to engaging services will be payable, upon their confirmation, in cash and in advance. NEXICA may invoice the equipment part (hardware or software, etc.) at the time of delivery. For any projects covering more than one of the Customer’s branches, NEXICA will issue an invoice at the end of each one of them.

3.3.- The Price stipulated in the Service Agreement shall be applicable during the initial effective term. However, during any extension of the Agreement, NEXICA may change the Price of the Services under the Service Agreement for justified reasons, giving the Customer at least 15 calendar days' prior notice. In the event that the Customer has not stated otherwise in writing within one month of such notice, the change shall be deemed to have been accepted. Should the Customer not agree with such change, NEXICA may terminate the provision of the Services under the Service Agreement, without NEXICA having to indemnify or compensate the Customer for such reason.

3.4.- In the event that the Customer returns the payment of a receipt or is more than 15 days late in paying the Price, starting from the due date of the invoice, whether a periodic payment or a percentage of the Price, it will be understood that there has been a delay in 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. Accordingly, the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first day of the calendar half-year in question plus seven percentage points shall be applied to the total amount of the debt. In addition, the Customer will be charged the costs of returning any receipts and cutting off the supply of the Services. Any total or partial non-payment of the Price shall also entitle NEXICA to block access to the Customer's servers until the amounts due are paid.

4. Confidentiality and personal data

In compliance with the provisions of data protection regulations, we inform you of the following aspect.

Identification of the data controller:

- Identity: COM 2002, S.L.U.

- Address: C. ACER, 30-32, 1º 4ª Postcode: 08038 BARCELONA

- Telephone: 902 20 22 23

- Email: rgpd@nexica.com

Purpose of processing your personal data:

At NEXICA we process your personal data for the purpose of properly carrying out professional management and the commercial relationship, as well as contacting the customer to enable the provision of the service

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

The personal data provided will be preserved while maintaining the commercial and professional relationship and five years more in accordance with the legal requirements. Throughout that period, the data may be made available to the public administration with competence in the matter, upon their request for just cause.

5. Start of the Service

5.1.- The duration of the Terms and Conditions will begin from the moment when the purchased service starts to be provided, an event that will coincide with the invoicing of the service.

The services will start to be provided by NEXICA from the date of signing these Terms and Conditions, except in the following cases:

a) In the event that the Services purchased require their part or full payment in advance, NEXICA may reserve the right to start the service until such time as it has received the established payment.

b) In the event that the Customer needs to supply NEXICA with any information required for the proper provision of the Services.

5.2.- In the event of it being necessary to install any items at the Customer’s premises or offices, it will be the Customer’s responsibility to request any required authorizations or permits. After such installation has been completed, the Customer must give its approval, upon which NEXICA shall have the right to charge for the services rendered.

6. Availability of the Services

6.1.- Unless otherwise stated in the Service Agreement or due to the nature of the services themselves, NEXICA undertakes to make every effort to guarantee the continuous provision of such services 24 hours a day, 7 days a week, 365 days a year and, therefore, NEXICA, as a result of the nature of the purchased services themselves, cannot guarantee their full availability. Notwithstanding the foregoing, NEXICA shall not assume any responsibility for any incident attributable to third parties that may occur in the service. NEXICA is also not responsible for unauthorized access by third parties to Customer information stored in the system, its loss or corruption, as long as it has taken all the usual technical measures in the industry, as well as any legally applicable measures, to guarantee the security of its equipment or facilities.

6.2.- NEXICA may temporarily interrupt the availability or access to the Services by the Customer for security reasons, or for restructuring NEXICA's computer resources in order to improve their provision or configuration. In any event, NEXICA will make every effort to ensure that such interruptions affect the Customer as little as possible, and to notify the Customer in reasonable time of any periods during which the Services are interrupted.

NEXICA shall not be responsible for any interruptions of the Services caused by force majeure, fortuitous cause, by the Client, its staff and/or the action of a third party.

7. Subcontracting on behalf of Customer

In case it's necessary, the Customer authorizes NEXICA to engage a third party to provide all or part of the Services covered by the Service Agreement. NEXICA will notify the Customer of any subcontracting of the Services prior to the start of the subcontracting whenever the subcontracted service involves the processing of personal data by the subcontractor. In such a case, NEXICA undertakes to contractually require the third party to comply with current legislation, in particular, any data protection regulation.

8. Powers of NEXICA

8.1.- NEXICA reserves the right to withdraw data and information, or to restrict access to it, in the event of becoming aware that the provisions of these Terms and Conditions are not being complied with or in the event that any public administration, authority or judicial body so requests in the exercise of the powers legally attributed to it. In any event, NEXICA would subsequently inform the Customer of this fact.

8.2.- 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 12 months after the date on which the communication was made.

8.3.- Regardless of the foregoing, the Customer entrusts NEXICA with the provision of the access control and review service for its users, in order to guarantee data security and comply with data protection obligations relating to access control, all under Royal Decree 1720/2007 and the LOPD. On this basis, the Customer may request NEXICA to keep an access log associated to the services purchased. In any event, NEXICA, as the party responsible for processing the Customer's data, shall process such data in accordance with the Customer's instructions. The Customer expressly states that the control and recording of the information set out in this section is known by all users of its systems and complies with all data protection regulations. This service is not included in the price for the provision of Services purchased, for which reason the additional cost shall be borne by the Customer.

9. Obligations and Responsibilities of the Parties

9.1.- The Customer guarantees that under no circumstances will the data stored or transmitted on or by NEXICA's equipment contain information that is illicit, illegal or that violates the intellectual or industrial property rights of third parties. The responsibility for the data hosted by the Customer on NEXICA's equipment is the sole responsibility of the Customer. In the event that any criminal, civil or administrative penalty exists or is incurred, NEXICA may terminate the Service Agreement, without prejudice to any damages that may result from such actions, for which the Customer shall be liable to NEXICA for the breach of these Terms and Conditions.

9.2.- In the event that during the provision of the Services, NEXICA makes its own equipment available to the Customer, the latter undertakes to use it correctly and to use it for the purposes appropriate to this type of Service. In all cases, the Customer shall be responsible for the data and information transmitted through the use of the Services as well as for any damages that may be caused by the improper use of the Services. In the event that it is necessary to request a permit or administrative authorization for the use or installation of the equipment, it will be the Customer’s responsibility to obtain it. In the event of any incident occurring during the provision of the Services, NEXICA undertakes to combine all its efforts to repair or put the Services into operation as soon as possible.

9.3.- The guarantee offered by NEXICA of the equipment indicated in the clause.

9.4.- When the equipment is property of the customer, it is the one offered by each manufacturer. NEXICA's involvement, whenever the manufacturer's warranty provides for it, is limited to the handling of replacement of the defective parts only. The costs of returning defective items are charged to the Customer as the manufacturer’ warranty does not include the cost of shipping equipment for repair. In no event shall NEXICA be liable for equipment installed where any modification or manipulation has been carried out on it by the Customer itself or by a third party not authorized by NEXICA.

The guarantee for the Services provided by NEXICA is in clause 9.2 when equipment is renting, is one (1) month from the date of the technical intervention and NEXICA will not be liable for any damages that may result from such technical intervention. NEXICA shall not be liable for any damages that may be caused to the Customer or to any third party by the hardware, software, transmission equipment or networks that it provides to the Customer for the provision of the Services and that have been manufactured or distributed by a third party. In all cases, the Customer must claim from such third party any possible damages or losses caused by any of the items described during its operation. In all cases, the Customer expressly states that it is aware of the technical characteristics of the equipment or services installed or marketed by NEXICA and that both have full interoperability with its equipment, systems and programs. For this reason, NEXICA is in no way responsible for interoperability with the Customer's equipment, systems and programs.

9.5.- Carriage. The costs of the delivery of equipment between the Customer and NEXICA shall be borne by the Customer.

10. Limitation of Liability

10.1.- Responsibility for the data and/or software hosted by the Customer on the NEXICA Server rests solely with the Customer. In the event of there being or incurring any criminal, civil or administrative proceedings, NEXICA may terminate the Service Agreement, without prejudice to any damages that may result from such actions, for which the Customer shall be liable.

10.2.- NEXICA is not liable for the content of the information contained in the Equipment. The Customer is solely responsible for any legal, judicial or extrajudicial claim or action brought by third parties against such information, and the Customer shall bear all expenses, costs and compensation incurred by NEXICA in connection with such claims or legal actions. NEXICA shall only be liable for what has been expressly agreed in the Terms and Conditions or by virtue of the provisions of the Law. NEXICA will be exonerated from any type of liability to the Customer in the event that the irregularities in the Service are due to actions directly attributable to the Customer, any of its staff or third parties. NEXICA shall not be liable for damages; loss of business, income or profits; consequential damages or loss of potential business, except in the event of wilful misconduct on the part of NEXICA. NEXICA will not be responsible for any problems arising from the lack of access or connectivity to the Internet when such problems have their origin in causes beyond its control or causes that could not have been foreseen, such as acts of God or force majeure. NEXICA does not exercise any type of control over the legality of the content transmitted, stored, received or accessible through the Services purchased, and is not liable for any action that may arise.

10.3.- Nexica shall be liable solely in accordance with the provisions of the respective Service Level Agreement (SLA). In no case may any payable compensation exceed that which is contained in the SLA. Consequently, NEXICA's maximum liability for damages caused shall be limited in its entirety to an amount equivalent to one monthly instalment due for the current year of the service concerned. For these purposes, an improper act or omission shall be understood as any actual or presumed, unintentional breach of NEXICA's obligations, or any negligence, error or omission, or inaccurate or misleading statement occurring solely in the exercise of the Professional Services rendered by NEXICA.

NEXICA will not be responsible for the problems derived from the lack of access or connectivity to the Internet when these originated in causes beyond its control or to causes that could not have been foreseen, as fortuitous or force majeure causes. NEXICA does not exercise any type of control over the legality of the contents transmitted, stored, received or accessible through the Services contracted, not being responsible for any action that may arise.

10.5.- In the event that the provision of the Services requires a password for the configuration of the Services or access to NEXICA’s technical equipment by the Customer or a third party, the Customer shall only access the Services to host, modify or delete data owned by it. For this purpose, NEXICA shall provide the Customer, and any technical contact persons authorized by it, with a username and password for access.  The Customer shall keep the password assigned to it under its sole control and responsibility. NEXICA may change this password at the Customer's request, notifying them by registered letter or by e-mail in encrypted form. The Customer shall assume responsibility for the improper use of such passwords by staff at the Company or by third parties, releasing NEXICA from liability for any claim for the improper use of such passwords.

11. Intellectual Property on Content and its Reproduction

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

12. Duration and Cancellation

12.1.- The Services rendered shall have a minimum duration of one (1) year unless the specific Service Agreement states otherwise. Once this period has expired without either Party expressing in writing its willingness to terminate it, and within thirty calendar days prior to the expiry of the initially agreed term or, where appropriate, prior to the expiry of any of its extensions, it shall be automatically extended for successive periods equivalent to the initially agreed annual term.

12.2.- Total or partial cancellation of the Services must be made in writing and with a notice of not less than thirty (30) days.

12.3.- In the event that the Customer, prior to the end of the initial term or any of its extensions, terminates the Service Agreement early, the Service(s) shall be cancelled on the last day of the month following the date of notification. In such a case, the Customer shall indemnify NEXICA with an amount equivalent to one hundred (100%) of the agreed monthly payments that, if applicable, are outstanding from the effective date of the termination until the expected date of termination of the agreement.

12.4.- Once the period of extension of a Contract for the Provision of Services has been reached, the Customer may request the total or partial cancellation of any of the services that form part of said contract without incurring a penalty, unless there are residual costs of license renewal, equipment or exclusive services of Customer in which Nexica has incurred during the prolongation term of the Contract. In such case, Nexica will invoice the Customer for the total of residucal costs, providing the corresponding documentation and justification.

12.5.- In any case, the suspension or early cancellation of the Services for any of the reasons expressed in these Terms and Conditions or due to the exercise by the Customer of its right to terminate, shall not entitle it to a refund of amounts paid for the provision of the Service over the current period. Notwithstanding the foregoing, the Parties shall be bound by any obligations which, by their very nature, survive the termination thereof.

12.6.- In the event that the Customer decides to withdraw from the completion of a Project before its conclusion, it must pay the full price for the development phase that the Project or Service is in at the time of cancellation and, failing that, always at least 35% of the total project, Service or agreement signed, as management fees.

12.7.- In the event of termination of the Agreement, NEXICA shall not change or remove the Services or equipment until the payment of any outstanding invoices has been made, in accordance with the provisions of these Terms and Conditions.

13. Termination of Service Agreement

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

a) For breach by any of the Parties of the obligations established in the Service Agreement or in these Terms and Conditions, with a prior request to the breaching party of 15 days to comply with the its obligation. This period shall not apply in the event of non-payment or delay in payment of the Price.

b) The extinction of the legal personality of either Party or the fact that any of the contracting parties has entered into a situation of bankruptcy or liquidation.

c)  In the event that the Customer has been penalised by the Data Protection Agency, or in the event that the latter determines that it has committed an infringement in the area of data protection.

d) In the event that the Customer uses the Services to carry out any of the following activities: illegal activities, mail bombing, publishing "cracks" or serial codes for programs protected by Spanish intellectual property laws, spamming, using the Services for the exchange of documents protected by intellectual property rights or any other that may in the future be declared illegal by any court. In any event, termination of the Agreement shall not relieve the Parties of their outstanding obligations.

14. Applicable Legislation and Competent Jurisdiction

These Terms and Conditions shall be governed by 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 Customer is a business owner or professional in the exercise of his or her functions.

15. Advising

The Customer states and acknowledges having received advice prior to the signing of these Terms and Conditions and the Service Agreement by an advisor with knowledge of the matter, as well as having been able to negotiate the terms and content of the aforementioned Terms and Conditions.

16. Severability

If any clause of the Terms and Conditions or of the Service Agreement is declared totally or partially invalid or unenforceable, such invalidity or unenforceability shall affect only that provision or the part thereof that is invalid or unenforceable, and the Terms and Conditions or the Service Agreement shall survive in all other respects, and such provision, or affected part thereof, shall be deemed to be excluded.