Last modification: 04/30/2024

GENERAL CONTRACTING CLAUSES
DESCRIPTIONS

Particular Contracting Clauses:  These are the clauses that detail the characteristics of the services and / or products, their particular terms and conditions, their scope, economic conditions, technical, material and human means contracted by the Client to INTELEQUIA and that are included in the previous section (Offer / Proposal of Services)

General Contracting Clauses:  These are the clauses predisposed by INTELEQUIA to the Client that are detailed below. 

Contract: It is made up of the General Contracting Clauses, the Particular Contracting Clauses, and any other document that the Parties have expressly indicated as an integral part of the Contract. 

 

1.     OBJECT OF THE CONTRACT

1.1.  The purpose of this Contract is to establish the terms and conditions of the contractual relationship between INTELEQUIA and the Client in relation to the contracting by the Client of the services and / or products requested from INTELEQUIA, and which INTELEQUIA expressly accepts, by submitting the Contracting Proposal (the "Offer" or the "Proposal of services") which is also configured as the Particular Conditions of Contract. 

1.2.  The Offer, once accepted by the Client, will be considered an integral part of this Contract, constituting together with these General Clauses, the Contract for the realization of the services and / or sale of products agreed between INTELEQUIA and the Client. 

1.3.  The characteristics of the services, their particular terms and conditions, their scope, economic conditions, technical, material and human resources contracted by the Client to INTELEQUIA are those that are agreed by the Parties in each Offer.

1.4.  Consequently, only those situations or services in which the provisions of this Contract, in the Offer, and in any other document that, forming part of the contract, contains any obligation for INTELEQUIA in relation to said provision will be considered as contractual breach of INTELEQUIA in the provision of the Services.

1.5.  INTELEQUIA will not be liable, in any way, for delays and breaches that may occur in works or supplies of third parties, linked to the Client, affected by the object of the Contract, or for those caused by errors or delays in the information provided by the Client.

 

2.     TERM OF DURATION AND EXTENSION

2.1.  In general, the Contract will have a minimum term of one (1) year, computing from the date of signing it, except in those cases in which the start of the service is conditioned to the effective payment of  an invoice, being in these cases, the date of start of computing the day of the effective payment of the amounts owed by the Client to INTELEQUIA. 

2.2.  In the event that the Customer contracts a Service that exceeds or is less than the duration indicated in point 2.1., the effectiveness of the same will be extended until the end of the last contracted service as reported in the Offer. 

2.3.  Notwithstanding the foregoing, and provided that the service actually contracted in the Offer may imply an extension thereof, the Contract may be extended for additional periods of one (1) year. The Contract will be tacitly extended unless otherwise stated in writing by either Party at least one (1) month before the start date of the first and subsequent extension (s). Once this minimum period of notice has expired without either Party having expressed its willingness to terminate the Contract, it shall be automatically extended.

 

3.     PAYMENTS

3.1.   INTELEQUIA will issue the invoice or invoices corresponding to the service and / or products in accordance with the deadlines and for the amount established in the Offer.  

3.2.  The payment of the amount of the invoice will be made by bank transfer by the Client in the current account of INTELEQUIA, and it must be paid within thirty (30) days following the issuance of the invoice. 

3.3.  The Parties agree by common agreement that the delay in the payment of any invoice may general the right to INTELEQUIA to apply five percent (5%) of interest on the nominal value of the invoices issued due to the delay in their payment, according to the provisions of Article 7 of Law 3/2004, of December 29,  laying down measures to combat late payment in commercial transactions.

3.4.  The Client assumes all bank expenses and commissions that occur as a result of the payment of the stipulated price.

3.5.  The Client acknowledges that during the term of the Contract the rates of some services may vary as the prices are subject to the conditions of the third party provider. This adjustment, if it occurs, will be communicated to the Client by INTELEQUIA at least one (1) month in advance.

 

4.     LIABILITY OF THE PARTIES    

4.1.  The liability of the Parties for any breach of contract of any of the covenants and clauses of this Contract, originated by fault or negligence of any of them, will be governed by what is agreed in this Clause and will be, in any case, limited to the amount of the Offer.

4.2.  INTELEQUIA will only incur in a breach of contract, among others, when the quality and levels of provision of the services provided to the Client do not comply with the parameters, levels and conditions agreed by the Parties in the Offer.

4.3.  However, in no event shall the Parties be liable to each other for any indirect damages, lost profits, revenue or business opportunities that may arise for either of them in the performance of this Agreement, as a result of a prior breach of contract by the other party.

4.4.  Each of the Parties shall be responsible for the conduct of its own workers exclusively, as well as for the payment of the corresponding Social Security contributions, in accordance with the provisions of the labor regulations in this regard.

4.5.  By this Contract INTELEQUIA undertakes to:

4.5.1.      Provide the Services contracted by the Client in accordance with the provisions of the Contract and its Offer.

4.5.2.      Sell the products contracted by the Customer in accordance with the provisions of the Contract and its Offer

4.5.3.      Optimally manage the services provided in accordance with, where appropriate, the Service Level Agreements 

4.5.4.      Provide all the information that the Client needs in relation to the services provided, provided that they do not involve disclosing Confidential Information of other Clients or Confidential Information of INTELEQUIA. 

4.6.  The Customer hereby undertakes to:

4.6.1.      Pay the stipulated Fees within the period set in accordance with clause 3 of this Agreement.

4.6.1.1 Provide all the information and documentation necessary to be able to carry out, by INTELEQUIA, the contracted service. A bank certification or, where applicable, proof of being insured against relevant occupational risks. 

Proof of insurance coverage for relevant occupational risks. 
 
4.6.1.2. The submission of financial statements or extracts from financial statements, where their publication is mandatory under the law of the country in which the economic operator is established. 

If mandated by the country's law where the economic operator is established. 

4.6.1.3. A statement specifying the undertaking's overall turnover and, where applicable, its turnover in the field to which the contract relates, for no more than the last three financial years available depending on the date on which the economic operator was set up or commenced activities, to the extent that such information is available. 

A statement detailing the economic operator's overall turnover and, if applicable, its turnover specifically in the field relevant to the contract. This information should cover the most recent three financial years available, considering the establishment or commencement date of the economic operator and the availability of such data. 

4.6.2.      Provide all the information and documentation necessary to be able to carry out, by INTELEQUIA, the contracted service.

4.6.3.      Accredit your economic and financial solvency, if required by INTELEQUA, through the following references:

4.6.3.1.   A bank certification or, where applicable, proof of being insured against relevant occupational risks;

4.6.3.2.   the submission of financial statements or extracts from financial statements, where their publication is mandatory under the law of the country in which the economic operator is established;

4.6.3.3.   a statement specifying the undertaking's overall turnover and, where applicable, its turnover in the field to which the contract relates, for no more than the last three financial years available depending on the date on which the economic operator was set up or commenced activities,  to the extent that such information is available.

 

5.     PRODUCT WARRANTIES

5.1.  When the object of the Offer is the sale of a product, it is reported that it will be covered by a guarantee period of two (2) years from the date of the receipt certificate, during which, INTELEQUIA will solve any defect in the code, observed in operation of the same.

5.2.  The intervention of INTELEQUIA during the guarantee period will be carried out according to a consensual protocol, in which the mechanisms of claim, designation of interlocutors and certification of the solution provided will be established.

 

6.     TERMINATION OF THE CONTRACT

6.1.  This Agreement will terminate when any of the following causes occur:

6.1.1.      Mutual Agreement of the Parties.

6.1.2.      End of the initial period of duration or of the successive extension / s in accordance with the provisions of clause 2 of this Contract. 

6.1.3.      Resolution for breach without just cause of any of the Parties of the obligations derived from the Contract. In this case, the party that considers the other as a breach of any obligation of this Contract, must notify it reliably, granting a period of fifteen (15) calendar days from said notification to resolve said breach. If after this period the breach is still present, the non-breaching party may request the termination of the Contract. Notwithstanding the foregoing, the Parties expressly agree that INTELEQUIA may automatically terminate the Contract, without attending to the procedure described, if the Client is late in the payment of two (2) invoices, whether consecutive or not, within a period of twelve (12) months. This right is understood without prejudice to the payment of the amounts owed to INTELEQUIA in accordance with the Rates contained in this Contract, applying the default interest established in the clause.

6.1.4.      In the event that the Client decides to unilaterally terminate the Contract and/or any of its services contemplated in the Offer, before its expiration, it will be obliged to pay INTELEQUIA the total fee for Services that the Client would have had to pay to INTELEQUIA during the term of provision of the Services that remained to elapse,  in accordance with the provisions of clause 2 of this Agreement. In case of early termination of this Agreement, all amounts owed by the Client, for any reason, will be liquid and payable on the date of such termination. 

 

7.     CONFIDENTIALITY

7.1.  Confidential information shall be understood as any information or documentation that either Party provides to the other in the development and execution of this Contract and that the contributing party has identified as such, being considered as a valuable business secret of the person who provides it, not being able to communicate to third parties without the express consent of the contributing party.

7.2.  In order to achieve faithful compliance with the commitment assumed in the previous paragraph, both Parties declare to have the security measures, physical and organizational, sufficient for it, and undertake to send the appropriate instructions to the persons who directly or indirectly handle the aforementioned information.

7.3.  The Parties exclude from the category of confidential information any information that becomes public through no fault of either party, that which is to be disclosed in accordance with the laws or with a judicial decision or imperative act of a competent authority or that is already known by the Parties to have been independently developed by it outside the scope of this contract or known to others. public or private media.

7.4.  This obligation of confidentiality shall remain in force throughout the duration of the Agreement, and after its termination.

7.5.  Neither Party shall acquire any rights to any confidential information or other assets or proprietary rights of any kind from the other party as a result of this Agreement.

7.6.  The Parties agree to give the character of confidentiality to this Contract, agreeing not to disclose to third parties any of the points that make up its content without the prior and express consent of the other party.

7.7. Upon termination of this Agreement, both Parties shall return, erase, or destroy all confidential information belonging to the other party, regardless of the medium in which such information is recorded. To this end, the party to whom the confidential information belongs shall indicate to the other party whether it is to destroy, erase or return it to the other party, and in accordance with the procedure indicated in writing by the party disclosing the confidential information. 
The party who is the owner of the confidential information shall indicate to the other party whether the information is to be destroyed, erased or returned. The process for handling the confidential information shall be carried out in accordance with the written instructions provided by the disclosing party. 

 

8.     INTELLECTUAL AND INDUSTRIAL PROPERTY

8.1.  The Client acknowledges and respects all the intellectual and industrial property rights held, either INTELEQUIA or third parties, who have legitimately authorized INTELEQUIA for their use / exercise by the latter, with respect to or related to the contracted service and, in general, to the works or materials that integrate them, that have been used for their development and elaboration or refer to them. All these works and protected elements, in accordance with Royal Legislative Decree 1/1996, of April 12, which approves the Consolidated Text of the Intellectual Property Law (hereinafter, TRLPI), as well as by Law 17/2001, of December 7, on Trademarks, also constitute or could constitute a business secret of INTELEQUIA or third parties.

8.2.  The Client undertakes to respect, not to disseminate or use in the future, the scientific or technical information or specific aspects of the activity belonging to INTELEQUIA to which he may have access in the development of the services corresponding to the object of this Contract.

8.3.  The source programs, lists, documentation, information, load tests, functional diagrams, data, specifications, any computer programs, user manuals, technical documentation used by one of the Parties and / or supplied or made available to the other party during the execution of the Services and / or generated in any other way in connection with this Contract will be subject to the industrial and intellectual property rights indicated therein. Consequently, and unless expressly agreed in writing in this regard, this Contract does not imply the acquisition by the Client of industrial and / or intellectual property rights of any kind of the other party, in relation to the supplies made in the execution of the services.

8.4.  Likewise, in the event that the activities carried out within the framework of this Contract result in any material subject to industrial and intellectual property rights, they will correspond to INTELEQUIA, unless the parties expressly regulate otherwise in the Particular Conditions of Contract. 

8.5.  The Client authorizes INTELEQUIA to use its logo and brand, only, to refer to it as a Client, being able, in turn, to use the logo and brand of INTELEQUIA, exclusively, to mention it as a trusted supplier in relation to the same software.

In return, INTELEQUIA grants the client the exclusive right to use its logo and brand to refer to INTELEQUIA as a trusted supplier in relation to the same software." 

 

9.     PROCESSING OF PERSONAL DATA

APPLICABLE REGULATIONS 

9.1.  For the development of the object of the Contract, INTELEQUIA must deal with data of the Client, who is responsible for the treatment in accordance with article 4.7) of the General Data Protection Regulation ("RGPD"), therefore, INTELEQUIA is configured as the person in charge of the treatment, as defined in article 4.8) of the same Regulation.  Therefore, INTELEQUIA, is obliged in its capacity as responsible for processing personal data to comply with the provisions of said Regulation, as well as the provisions on data protection that are in force at the beginning of the contract or that may be during its validity. In order for access to these data not to be considered data communication, the provisions of Article 28 of the RGPD must be complied with.  

9.2.  For the execution of the services derived from the fulfillment of the object of this order, the person responsible for the treatment, makes available to the supplier, in charge of the treatment, the information necessary for the fulfillment of the Object of the Contract. This information, which the controller makes available to the processor for the provision of the service, is adequate, relevant and limited to the purposes of the processing ordered. 
 
For the execution of the services resulting from the fulfillment of the purpose of this order, the controller, who is responsible for data processing, provides the processor (supplier) with the necessary information to fulfill the objectives of the contract. The information shared by the controller with the processor for service provision is appropriate, relevant, and limited to the purposes of the specified processing. 

9.3.  If the data processor uses the data for another purpose, communicates them or uses them in breach of the stipulations of the Contract and / or current regulations, it will also be considered as responsible for the treatment.

9.4.  The treatments to be carried out consist of collection, registration, structuring, conservation, consultation, communication and extraction.

 

OBLIGATIONS OF THE CONTROLLER

9.5.  It corresponds to the Data Controller: 

9.5.1.      Allow the person in charge access to personal data and information in order to properly provide the services referred to in this Contract. 

9.5.2.      In the event that it is legally required, carry out an assessment of the impact on personal data protection of the processing operations to be carried out by the processor and, also, if necessary, formulate before the control authority the corresponding prior consultations, informing and giving the precise treatment instructions to the person in charge in relation to those issues or situations that could suppose and / or imply the necessary adoption by the latter of specific measures in development of this Agreement.

9.5.3.      Ensure proper compliance with current regulations by the person in charge. 

9.5.4.      Supervise and control the treatment carried out by the Processor in execution of this Contract, including the performance of inspections and audits.

 

OBLIGATIONS OF THE PROCESSOR

 

9.6.  The processor undertakes to:

9.6.1.      Treat personal data in accordance with the instructions documented in the Contract and those that, where appropriate, it receives from the data controller in writing at all times. The processor shall immediately inform the controller where, in his opinion, an instruction is contrary to the personal data protection regulations applicable at any given time.

9.6.2.      Not to use or apply personal data for a purpose other than the execution of the object of the Contract.

9.6.3.      Maintain the most absolute confidentiality of the personal data to which it has access for the execution of the Contract, as well as those resulting from its treatment, whatever the medium in which they were obtained. 

9.6.4.      Keep secret all data and information provided by the data controller and that are concerning the provision of the service. In particular, all know-how or know-how resulting from the execution of the services object of the Contract will be considered as Confidential Information, and the person in charge of the treatment must keep said information confidential and secret and not disclose it in any way, in whole or in part, to any natural or legal person who is not a party to the Contract.

9.6.5.      Guarantee the necessary training in the protection of personal data of the persons authorized to treat them. 

9.6.6.      Unless you have in each case the express authorization of the person responsible for the treatment, do not communicate (transfer) or disseminate personal data to third parties, not even for their conservation. 

9.6.7.      Carry out the processing of personal data in the systems/devices of treatment, manual and automated, in accordance with the applicable regulations. The equipment may be under the control of the controller or under the direct or indirect control of the processor and will be accessible only by the users or user profiles assigned to the execution of the object of the Contract.

9.6.8.      Process personal data within the European Economic Area or another area considered by the applicable regulations as equivalent security, not processing them outside this space either directly or through any authorized subcontractors in accordance with the provisions of the Contract, unless obliged to do so under Union law or the Member State that is applicable to it,  or some of the decisions are applicable; guarantees of adequacy or exceptions for specific situations indicated in Articles 45, 46 and 49 of the GDPR.

9.6.9.      In accordance with Article 33 GDPR, notify the data controller, immediately, and at the latest within 72 hours from the moment it becomes aware, of any breach of the security of the personal data in its charge of which it has knowledge, together with all the relevant information for the documentation and communication of the incident or any failure in its system of treatment and management of information that has had or may have or that endangers the security of personal data, its integrity or availability, as well as any possible breach of confidentiality as a result of the disclosure to third parties of the data and information obtained during the execution of the Contract. 

9.6.10.    When a person exercises a right of access, rectification, deletion and opposition, limitation of processing and not to be subject to automated individualized decisions, or others recognized by the applicable regulations (collectively, the "Rights"), before the person in charge of the treatment, he must communicate it to the person responsible for the treatment as soon as possible. The communication must be made immediately and in no case more than two working days following the receipt of the exercise of right, together, where appropriate, with the documentation and other information that may be relevant to resolve the request in your possession, and including the reliable identification of who exercises the right. It will assist, therefore, the person responsible for the treatment, whenever possible, so that it can comply and respond to the exercises of Rights. 

9.6.11.    Collaborate with the data controller in the fulfillment of its obligations in terms of security measures, (communication and / or notification of breaches (achieved and attempted), and collaboration in carrying out impact assessments related to the protection of personal data, as well as prior consultations in this regard to the competent authorities; taking into account the nature of the treatment and the information available. 

9.6.12.    Treat personal data in accordance with the security criteria and the content provided for in article 32 of the RGPD, as well as observe and adopt the necessary or convenient technical and organizational security measures to ensure the confidentiality, secrecy and integrity of the personal data to which it has access. 

 

SUBCONTRACTING 

9.7.  The Data Processor is authorized to subcontract the service object of the Contract. Depending on the contracted service, the Treatment Order will subcontract the services of:

Sub-processors
Outsourced services
Amazon Web Services Emea Sarl, Spain Branch
AWS
Bittitan Inc
Mailbox License
Digital River Gmbh
CloudBerry MBS
Microsoft Ireland Operations Ltd
Microsoft Cloud Hosting
Microsoft Ireland Operations Ltd
Licences
9.8.  Subcontracting with other parties not expressly indicated in the previous point is also authorized, provided that they are communicated to the data controller with a minimum of fifteen (15) days. 

9.9.  The processor may also subcontract with other contractors who provide auxiliary services necessary for the normal functioning of the services of the processor in development of the Contract, for example, hosting and storage services of personal data, as long as they offer the necessary guarantees for the purposes of this Contract and the RGPD.

 

DURATION

9.10.       The duration of this clause is linked to the duration of the Contract. Once the Contract ends, the data processor must return the personal data to the data controller within a maximum period of 30 calendar days. The return must entail the total deletion of the existing data on the computer equipment used by the processor. However, the processor may keep a copy, with the data duly blocked, as long as responsibilities for the execution of the service can be derived. 

9.11.       Notwithstanding the foregoing, the data controller may communicate in writing to the data processor, at least 15 days before the date scheduled for the termination of the services under the Contract, its preference for the data processor to proceed with the destruction of the data, once the service has been fulfilled and within a maximum period of 30 calendar days. Once destroyed, the processor must certify their destruction in writing and must deliver the certificate to the controller. However, the processor may keep a copy, with the data duly blocked, as long as responsibilities for the execution of the service can be derived.         

 

DUTY OF INFORMATION 

9.12.       The parties inform each other regarding the personal data included in this Agreement that the signatories thereof are the representatives of those responsible for the treatment for the purposes of it, leaving their respective contact details indicated in the Contract. After the termination of the contractual relationship between the parties, personal data may be kept by the parties for the legally valid periods. The basis of legitimacy of the treatment is the execution of the main contract, although, with regard to the processing of contact data and, where appropriate, those relating to the function or position held by a natural person in a legal person, provided that the treatment relates only to the data necessary for their professional location,  and that the purpose of the treatment is only to maintain relations of any kind with the legal entity in which the affected party provides its services, it will be understood legitimized in order to the legitimate interest of the person responsible, in accordance with article 19 of the LOPDGDD.

9.13.       Likewise, INTELEQUIA informs the Client that it may send communications about the different products and services similar to those contracted based on the satisfaction of the legitimate interest, based on article 21.2 of Law 34/2002, of July 11, on services of the information society and electronic commerce.

9.14.       The data may be transferred to other companies of the Group of companies for administrative and internal purposes within the framework of this business group, and also to the competent authorities and bodies depending on the applicable legislation in each case. Outside of these cases, they will not be transferred to third parties unless imposed by applicable law. A priori, no international transfers of the same are foreseen, adopting, in case they could occur or concur, all the guarantees provided for this purpose by the RGPD.

9.15.       The rights of access, rectification, deletion and portability of your data, limitation and opposition to its treatment, as well as not being subject to decisions based solely on the automated processing of your data, when appropriate, can be exercised before each of the parties. In the event that any of the signatory parties considers their rights violated, not having been duly attended by the corresponding party, such signatory may file a claim against it before the Spanish Agency for the Protection of Personal Data (AEPD).

             

10.  RESERVATION OF THIRD PARTY RIGHTS

10.1.     When the subject matter of the Agreement is cloud at Microsoft, Customer shall agree, in addition to this Agreement, to the terms and conditions described in the "Microsoft Cloud Agreement", dated March 01, 2023 and available for viewing at https://www.microsoft.com/licensing/docs/customeragreement

10.2.       At any time during the term of this Agreement, Microsoft may terminate Subscriber's customer status when the Subscriber violates the Online Service Acceptable Use Policy or fails to respond to a claim of alleged infringement. INTELEQUIA will notify the Client before suspending the Service when reasonable. Upon notification, INTELEQUIA will immediately cease to fulfill the orders of the Service contract by the unsubscribed Client. Microsoft's Acceptable Use Policies are described in https://products.office.com/es-es/legal/docid12

 

11.  GENERAL

11.1.       The indicated Offer has a period of thirty (30) days of validity counting from the date of sending it by INTELEQUIA, after the indicated period, the Offer, including prices and conditions may vary. 

11.2.       The deadlines indicated in the Offer for the performance of the services will be valid provided that INTELEQUIA has been provided with the necessary facilities to carry out its task and there are no changes in the starting data or any other delay attributable to the Client. 

 

12.  RESIGNATION

12.1.       The waiver by either Party to exercise its rights in the event of a breach of any provision of this Agreement by the other party shall not be considered a general waiver of any other breach of the same or any other provision.

 

13.  APPLICABLE LEGISLATION AND JURISDICTION

13.1.       This Contract will be interpreted and fulfilled in its own terms and, in what is not foreseen, will be governed by the Spanish legislation in the current matter, adjusting to it the obligations and responsibilities of the Parties.

13.2.       Likewise, waiving the jurisdiction that may correspond to them, they expressly submit to the jurisdiction of the Courts and Tribunals of Santa Cruz de Tenerife for the resolution of any issues that may arise due to the interpretation or fulfillment of this contract.

13.3.       In proof of conformity, the Parties sign and deliver this Contract through their managers or duly authorized representatives, at the place and date indicated in the header.