Terms and Conditions of Contract

The first party, ECONOCOM NEXICA, S.L.U., with registered offices in Barcelona at Calle Acer, núm. 30, 1º-4ª, formed for an indefinite period of time and holder of tax identification number B-61125712 (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. It is hereby represented by the undersigned, as a duly authorised attorney-in-fact.

The second party is the company receiving the services to be provided by NEXICA (hereinafter, the “CUSTOMER”), whose details are set out in the offer of services to which these terms and conditions are attached (the “Offer”). The Offer has been duly signed by the undersigned, who is the duly authorised representative of the CUSTOMER, and who declares that:

a) He/She has the sufficient legal capacity to accept these Agreement Terms and Conditions governing the provision of the services offered by NEXICA (hereinafter, the “Terms and Conditions”), on behalf of the CUSTOMER.

b) 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 rendered by NEXICA to the CUSTOMER 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. Definitions

The terms listed below shall have the following meanings in these Terms and Conditions. Terms in the singular form also refer to the plural form and vice versa, depending on the context:

Service Activation: refers to the implementation of the elements necessary for the provision of a given service, as well as its start-up.

Terms and Conditions: shall have the meaning ascribed to that term in the previous section.

Agreement: shall have the meaning ascribed to that term it in Clause 2.2 below.

Instalment: is the established price paid on a regular basis for Recurring Services.

Company Group: shall have the meaning ascribed to that term in Article 42 of the Commercial Code.

Confidential Information: shall have the meaning ascribed to that term it in Clause 4 below.

Offer: shall have the meaning ascribed to that term in the previous section.

Parties: refers to the parties to the Agreement.

Price: shall have the meaning ascribed to that term in Clause 3.1 below.

Tacit Extension: shall have the meaning ascribed to that term in Clause 13.1 below.

Services: shall have the meaning ascribed to that term in Clause 2.1 below.

Recurring Services: refers to those Services that NEXICA provides to the CUSTOMER on a continuous basis over time.  

SLA: shall have the meaning ascribed to that term in Clause 7.1.

2. Provision of Services

2.1 These Terms and Conditions govern the performance of the services offered by NEXICA to the CUSTOMER (hereinafter, and including both Service Activations and Recurring Services, the "Services"), according to the features set out in the Offer and in these Terms and Conditions.

In the event that the CUSTOMER wishes to engage new Services, it shall be sufficient to sign a single new Offer document. These Terms and Conditions shall apply, in identical terms, to the new Offer without it being necessary for them to be signed again by the CUSTOMER.

2.2 The contractual relationship between the Parties shall be governed by the provisions of the following documents, ranked in descending order of priority:

  • The Offer
  • The documents referred to in the Offer
  • These Terms and Conditions

The aforementioned documents and any annexes that form an integral part of them (hereinafter the “Agreement”), constitute a contractual whole and represent the set of agreements reached between the Parties, being binding on them and replacing any other document and/or agreement, whether oral or written, prior thereto.

3. Price, invoicing and method of payment

3.1 NEXICA shall invoice the CUSTOMER for the Services provided for the amount set out in the Offer it has accepted (hereinafter "the Price"), according to the Services stipulated in the Offer. The amounts listed in the Offer, unless otherwise stated, do not include VAT.

3.2 Payment of the Price shall be made in the terms and manner established in the Offer. Service Activations shall be invoiced once the implementation and start-up process has been completed. The Recurring Service Instalments will begin to be invoiced once the provision of the Service begins, with the frequency indicated in the Offer.

3.3 The Price stipulated in the Offer shall apply for the initial term of the Agreement. Once this period has elapsed and during any extensions to the Agreement, NEXICA may, for justified reasons, make changes to the Price of the Services covered by the Offer, giving the CUSTOMER at least 30 calendar days' prior notice. After a period of one month from such notice, if the CUSTOMER has not stated otherwise in writing, the changes shall be deemed to have been accepted. Should the CUSTOMER not agree to such changes, both the CUSTOMER and NEXICA may terminate the provision of the Services covered by the Offer, without either Party having to indemnify or compensate the other Party for this reason.

3.4 In the event that the CUSTOMER rejects an invoice or delays payment of the Price by more than 15 days, counting from the due date of the invoice, whether for a regular instalment or a percentage of the Price, it shall be understood that a late payment has occurred. 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 and Law 11/2013, of 26 July, on measures to support entrepreneurs and to stimulate growth and job creation, shall be applicable, 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 half-year in question plus eight percentage points being applied to the total amount of the debt. In addition, the CUSTOMER shall be charged for the costs incurred in rejecting any invoice and the provision of the Services will be suspended.

In any event, if the CUSTOMER fails to comply with its payment obligation, NEXICA may avail itself of the provisions of Clause 14.

4. Confidentiality

All written or oral information exchanged between the Parties during and after the course of the business relationship, regardless of its nature or the medium on which it is provided, shall be treated as confidential information when the party disclosing such information has so stated (hereinafter, "Confidential Information").

The parties undertake to keep any Confidential Information secret and to safeguard and implement all necessary measures as if it were their own, and to use it solely with a view to enabling the performance of the Services covered by this Agreement. Such Confidential Information may not be disclosed in whole or in part to third parties.

The Parties acknowledge that this undertaking of confidentiality, non-disclosure and non-reproduction is made on their own behalf as well as on account of all persons acting on their behalf.

In particular, the Parties undertake not to share any Confidential Information with companies that may be competitors of the other Party.

Notwithstanding the foregoing, neither Party shall be under any obligation to maintain the confidentiality of any information which:

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

The Parties may share Confidential Information with companies belonging to their Company Group and shall, in all cases, be responsible to the other Party for the compliance of such companies with the confidentiality obligations set forth in this clause.

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 termination of this Agreement.

5. Personal data

5.1 In compliance with the provisions of the European General Data Protection Regulation, we provide the CUSTOMER with the following information:

  • Identification of the Data Controller:
    • Identity: ECONOCOM NEXICA, S.L.U.
    • Address: CALLE ACER, 30-32, 1º 4ª Postcode: 08038 DE 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 the CUSTOMER'S personal data in order to properly manage our professional and commercial relationship. In addition, contact with the CUSTOMER enables both the provision of the Services and any requests sent to us through the website or other means.

Likewise, the CUSTOMER'S data may be used to create commercial profiles or to offer products and services related to requests made by the CUSTOMER, through any means, including electronic means, even after the business/contractual relationship has ended.

The CUSTOMER shall have the right to access, rectify and erase the data, as well as other rights explained in more detail on the NEXICA website at the following link: https://www.nexica.com/es/proteccion-datos.

NEXICA may share the CUSTOMER's personal data with the companies in its Company Group for the purpose explained in the privacy policy published on the Econocom Group's website at the following link: https://www.econocom.es/aviso-legal-politica-de-privacidad-y-proteccion-de-datos.

The personal data provided will be retained for the duration of the business and professional relationship and for a further five years in accordance with law. During this period, the data may be made available to the competent government authorities, at their request, for good cause.

In the event that the CUSTOMER requests a specific data processing assignment from NÉXICA, the parties must sign a data processing assignment agreement regulating the obligations corresponding to each of the Parties as data controller and data processor, in accordance with the applicable regulations.

6. Commencement of service

NEXICA shall commence 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 payment of part or all of the Price in advance. In such cases, NEXICA reserves the right not to initiate the process of activation of the Services until it has received the agreed payment. Without prejudice to the foregoing, in the event of non-payment within the agreed period, NEXICA may avail itself of the provisions of Clause 14 of these Terms and Conditions and call for the termination of the Agreement.

b) In the event that activation and proper provision of the Service requires the CUSTOMER to provide certain information to NEXICA, in which case the provision of the Services shall commence once NEXICA has received such information.

7. Availability of the Services

7.1  NEXICA guarantees the availability of its services in accordance with the service level agreement that NEXICA has provided to the CUSTOMER together with the Offer (hereinafter, the “SLA”).

7.2  NEXICA may temporarily interrupt the CUSTOMER’s access to or availability of the Services for security reasons, or for urgent and justified operating needs.

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

8. Subcontracting

NEXICA may subcontract part of the Services without this relieving NEXICA of its responsibilities under the Agreement.

NEXICA shall notify the CUSTOMER of any subcontracting of the Services once it has been formalised, and prior to the commencement thereof, only 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 law and, in particular, Data Protection regulations.

9. Obligations and responsibilities of the parties

9.1 NEXICA's obligations and responsibilities:

NEXICA undertakes to provide the Services in accordance with the terms of the Agreement and with the diligence and care befitting its professional status.

NEXICA assures that it has professional liability insurance with a company of recognised solvency and undertakes to maintain this assurance for the entire duration of the Agreement.

NEXICA shall entrust the provision of the Services to duly qualified and competent personnel. The relationship between the Parties shall be purely commercial in nature, and there shall be no employment relationship whatsoever between the CUSTOMER and NEXICA's personnel. NEXICA's personnel shall not be considered either de jure or de facto employees of the CUSTOMER and shall report solely to the NEXICA’s management for all purposes.

The NEXICA personnel involved in the provision of the Services shall have no employment, financial or any other type of relationship with the CUSTOMER. Under no circumstances shall there be any hierarchical or functional dependence between NEXICA's employees and the CUSTOMER.

NEXICA shall be solely responsible for the payment of salaries and Social Security contributions of its employees, as well as compliance with all other labour obligations in accordance with current law. Likewise, NEXICA shall ensure that - where applicable - its personnel shall respect the CUSTOMER's in-house regulations, as well as the health and safety rules and plans in place at the CUSTOMER's facilities and previously provided by the CUSTOMER.

9.2 CUSTOMER's obligations and responsibilities:

The CUSTOMER undertakes to pay the Price in due time and form and to cooperate effectively and in good faith with NEXICA so that NEXICA can adequately provide the Services.

The CUSTOMER undertakes to provide NEXICA with all the information necessary for the performance of the Services. In particular, the CUSTOMER shall provide NEXICA with, and facilitate its access to, all documentation containing the information needed for NEXICA to draw up a project for the design and implementation of the processes and tools necessary for the performance of the Services.

The CUSTOMER assumes responsibility for the data, information and declarations made, as well as the obligations incumbent upon it.

The data hosted by the CUSTOMER on any component of the NEXICA Services infrastructure is the sole responsibility of the CUSTOMER. The CUSTOMER is also responsible for the software installed on the CUSTOMER's servers for which NEXICA is not the administrator. In particular, the CUSTOMER shall be responsible for the proper use of such software and compliance with the terms and conditions of the licences and authorisations granted by the owner of such software. The CUSTOMER assures that under no circumstances will the data it hosts or transmits through any component of the NEXICA Services infrastructure contain information that is illicit, illegal or infringes the intellectual or industrial property rights of third parties. In the event that the CUSTOMER incurs in any criminal, civil or administrative offence, the CUSTOMER shall immediately inform NEXICA, who may terminate the Agreement. In such an event, NEXICA may claim from the CUSTOMER any damages that have been caused to NEXICA from such circumstance, and the CUSTOMER undertakes to hold NEXICA harmless for such damages.

In the event that it is necessary or appropriate for NEXICA, as part of the provision of the Services, to assign passwords to persons authorised by the CUSTOMER for access to restricted data or information, the CUSTOMER shall be solely responsible for the correct use of such passwords.

Where applicable, the CUSTOMER shall adopt all necessary measures to ensure that the use of its work facilities does not create risks to the health and safety of NEXICA's employees in compliance with Law 31/1995, of 8 November, on the Prevention of Occupational Risks.

During the entire term of the Agreement, as well as for an additional six (6) months from the end of the contractual relationship, each Party waives the right to contact the personnel of the other Party for the purpose of recruitment or to directly or indirectly recruit any personnel of the other Party, unless otherwise expressly agreed in advance by the other Party.

10. Limitation of liability

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

10.2 NEXICA shall be solely and exclusively liable in accordance with the provisions of the SLA. In no event shall the compensation payable exceed the amount agreed in the SLA, which shall be in full discharge and, consequently, the CUSTOMER acknowledges that it constitutes sufficient compensation for the reparation of its potential loss and damage.

10.3 In any event, the Parties agree that NEXICA's maximum liability 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 under this Agreement.

10.4 Neither Party may be held liable for delay or non-performance of its obligations when such delay or non-performance is due to an act of God or force majeure in accordance with Article 1.105 of the Civil Code. In such a case, the performance of the obligations by the Party affected by the force majeure event shall be carried over for a period equal to the duration of the suspension due to that event. The Party invoking force majeure shall notify the other Party by reliable communication. If the duration of the force majeure event exceeds one month, this Agreement may be automatically terminated, unless otherwise agreed by both Parties, without compensation to either Party, and without prejudice to the right of the Parties to demand performance of the services arising or originating prior to the occurrence of the force majeure event.

11. Industrial and Intellectual Property

The CUSTOMER grants NEXICA a non-exclusive licence to reproduce or copy the data hosted in the components of the NEXICA Services infrastructure solely for the purpose of properly providing the Services. The CUSTOMER declares that it has and will at all times have the appropriate intellectual or industrial property rights necessary to host or transfer the data for which it is responsible on NEXICA's equipment without infringing any third party rights.

Therefore, the CUSTOMER guarantees and shall be responsible for full compliance with all regulations concerning the licences of the software that it hosts, at its own risk, on any of the components of the NEXICA Services infrastructure. Any liability, fine or penalty that the owner of such software may impose on or claim from NEXICA for this reason shall be borne in full by the CUSTOMER. 

12. Duration and Cancelation

12.1 These Terms and Conditions shall come into force on the date of their signing and shall apply to all Offers signed by the CUSTOMER until their full termination.

The Services provided shall have a minimum duration of one (1) year unless otherwise indicated in the specific Offer. The Service may be extended by agreement between the Parties for periods which differ from the initial period. However, once the initial period has expired without either of the Parties expressing their desire to terminate the Service in writing within thirty calendar days of its expiry, or the expiry of any of its extensions, the Service shall be automatically extended for successive periods equal to the agreed initial one-year period ("Tacit Extension").

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

12.3 In the event that the CUSTOMER totally or partially terminates the Services prior to the end of the initial term or any of its expressly agreed extensions, the affected Service(s) 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 an amount equal to one hundred percent (100%) of the Price in the case of Service Activations and, in the case of Recurring Services, thirty-five percent (35%) of any agreed monthly payments that remain unpaid from the effective date of the termination to the date the Agreement is due to end, for management costs and minimum-term price return.

12.4 In the case of Tacit Extension, the CUSTOMER may request the total or partial cancellation of any of the Services that form part of the Agreement without incurring a penalty, unless there are costs that NEXICA has incurred for the proper provision of the Service during the extension period of the Agreement. In this case, NEXICA may invoice the customer for the full amount of these costs on the condition that it provides the corresponding documentation and justification.

12.5 In any event, the suspension or early cancellation of the Services for any of the reasons set out in these Terms and Conditions or due to the exercise by the CUSTOMER of its right of termination, shall not entitle the CUSTOMER to a refund of amounts already paid to NEXICA for the provision of the Service, 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 Service.

12.6 In the event of termination of the Contract, NEXICA shall deprovision the Services or equipment being used by the CUSTOMER, but shall not provide the CUSTOMER with any information until the CUSTOMER has paid the outstanding invoices, in accordance with the provisions of these Terms and Conditions.

13. Early termination

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

a) For breach by either Party of the obligations established in the Agreement, subject to a prior 15-day notice to the breaching party 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 termination of the legal personality of either Party or where either Party becomes insolvent or goes into liquidation.

c) In the event that the CUSTOMER has received a penalty from the Data Protection Agency, or where the Data Protection Agency determines that the CUSTOMER has committed an infringement of data protection.

d) In the event that the data transmitted by the CUSTOMER to NEXICA contains unlawful information or infringes the intellectual or industrial property rights of third parties.

In the event of early termination of the Agreement due to breach of these Terms and Conditions or of any law, the Parties, in accordance with the provisions of Article 1124 of the Civil Code, may claim compensation for damages suffered as a result of the breach within the limits agreed in Clause 11.

The early termination of the Agreement shall not justify non-fulfilment of the commitments and obligations assumed prior to termination, especially those relating to outstanding payments, and the CUSTOMER shall be obliged to fulfil them.

14. 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.

15. Invalidity and unenforceability of the clauses

If any provision of the 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. Such provision or part thereof shall be deemed not to have been included in the Agreement. All other terms of the Agreement shall remain in full force and effect.

16. Amendment of the Agreement

This Agreement may only be amended by written agreement signed by both Parties.

It is hereby formally stipulated that any tacit acceptance or waiver by one of the Parties, in the context of the performance of all or part of the undertakings contained in this Agreement, irrespective of its frequency or duration, shall not be considered as an amendment to this Agreement and shall not give rise to any rights whatsoever.

17. Electronic signature

An electronic signature guarantees the identification of the signatory and is uniquely linked to the signatory. Furthermore, an electronic signature shall have the same value in respect of data recorded in electronic form as a handwritten signature has in respect of data recorded on paper.

The electronic signature of this Agreement does not alter the rules relating to the conclusion, execution, validity and effectiveness of this Agreement. In this respect, an electronic signature shall have the same legal effect as a handwritten signature and, consequently, an electronic signature shall not be denied legal effect or admissibility as evidence in legal proceedings.