1.1. This document regulates the general terms and conditions (the "General Conditions") of the provision of digital marketing services by Webimpacto Consulting, S.L. ("Webimpacto") to the client (the "Client") as detailed in the Technical and Economic Proposal formalized between both parties (the "Proposal"). Unless expressly stipulated in the Proposal, the Proposal shall be valid for thirty (30) days from the date of issuance.
1.2 The General Terms and Conditions, together with the Proposal, constitute the entire agreement between Webimpacto and Client (the "Agreement"). In the event of any contradiction or conflict between the two documents, the provisions of the Contract shall prevail.
2.1 The scope of the Services (including deliverables) shall be as expressly detailed in the Proposal (the "Services"). Excluded from the scope of the Services, and if applicable, subject to separate invoicing, subject to prior quotation accepted by Client, shall be any corrective work due to causes not attributable to Webimpacto.
Unless otherwise stated in the Proposal, the Services shall be provided at Webimpacto's offices. In the event that the Services are provided outside of Webimpacto's offices, Client agrees to provide Webimpacto's employees with adequate means for their execution. Travel and accommodation expenses will be invoiced independently.
2.2 Any variations to the scope of the Services outlined in the Proposal will be billed separately as additional services. Such additional services shall include, but not be limited to, changes in the size (quantity) of the work, changes in the complexity of any elements involved in the projects, and any changes made after approval of each stage of the design, documentation, etc. Webimpacto shall keep Client informed of additional services required and shall seek Client's approval for those additional services that affect and exceed the fees set forth in the Proposal.
2.3 In addition to the Services that are the object of the Contract, Webimpacto may provide, at the Client's request, any other services foreseen in its catalog, which shall be the object of a new proposal, invoiced separately.
3.1 The Agreement shall enter into force upon acceptance of the Proposal and receipt by Webimpacto of the first agreed milestone payment.
3.2 In the event that the assignment consists of the execution of a specific project, the duration of the Contract shall be linked to its completion according to the technical specifications indicated in the Proposal. Delivery dates, unless otherwise stated in the Proposal, shall be estimated.
In the event that the assignment is recurring in time, and unless otherwise stated in the Proposal, the Contract: (i) shall have an initial term of twelve (12) months; and (ii) shall be automatically renewed for successive terms of twelve (12) months each, unless either party notifies the other, at least sixty (60) days prior to the renewal date, of its desire not to renew the Contract.
In any case, the termination of the Contract before the end of the initial period or any of its extensions by the Client without just cause, will not give rise to any refund of the price paid to Webimpacto, empowering it in any case to claim the full amount of the agreed price pending billing as compensation for damages.
3.3 Notwithstanding the foregoing, the Contract may be terminated in advance: (a) when one of the parties has failed to comply, in whole or in part, with the obligations established in the contract and has not remedied the breach within fifteen (15) days from the date on which the party in default complained of the breach; (b) any other causes established by Law.
4.1 For the provision of the Services, the Client undertakes to pay the amounts set forth in the Proposal, which shall be invoiced in accordance with the terms set forth therein. Unless otherwise expressly agreed in the Proposal, the quotation is fixed on a "per unit" basis.
Customer shall pay a surcharge for any services that require work outside of working days and hours due to unscheduled delivery dates, or as a result of Customer's failure to meet deadlines for delivery of information, materials or approvals.
In any case, the extension of the Contract will not mean that the same price for the Services will be maintained, but the price will be fixed annually by Webimpacto, according to the rates that it establishes for each year, which will be made known to the Client in due time.
4.2 Unless otherwise stated in the Proposal, Client shall bear all expenses incurred by Webimpacto necessary for the provision of the Services, including, but not limited to, courier services, extra printing and copying, and/or long distance calls, extra magnetic media, etc. All travel expenses will be invoiced independently and the client's agreement will be requested prior to the travel with an estimate from the client. Web Impact will fully justify the expenses incurred, providing the corresponding receipts.
4.3 The amounts do not include applicable taxes, which will be assumed by the party legally obliged to pay them. Webimpacto will issue the corresponding invoices to be paid by the Client by bank transfer.
4.4 If payment of any amount due by Customer is 30 days or more overdue, Webimpacto may, without prejudice to any other right or remedy, suspend the provision of the Services until such amount is paid in full. In any case, failure to provide proof of payment of the price shall be automatic cause for termination of the Agreement, without prejudice to any claim for damages and interest, which Webimpacto may exercise if it deems appropriate.
4.5 The Client shall not be entitled to suspend, withhold or make any reduction or set-off in respect of any invoice, whether or not any claim may have been made by the Client against Webimpacto.
5.1 Client shall designate only one project manager with full authority to provide or obtain necessary information or approvals as may be required by Webimpacto (the "Client Representative"). The Client Representative shall be responsible for the coordination of the briefing, review and decision-making process involving other parties or persons to Webimpacto and/or its subcontractors.
5.2 If after the Client's Representative has approved the design and/or its stages, the Client or any other authorized person requires changes that result in additional services by Webimpacto, the Client shall pay charges and costs involving such changes and additional services. The signature of the Client's Representative shall be conclusive with respect to the approval of each stage of the project. Should the Client decide to change this person in charge, he/she shall immediately inform Webimpacto in writing, specifying the identity of the new interlocutor.
6.1 Client shall provide Webimpacto with accurate and complete information and materials necessary for the execution of the assignment in a timely manner, and shall be responsible for the accuracy and completeness of all information and materials provided. Client warrants that all materials provided to Webimpacto do not infringe the copyrights of third parties. Client shall indemnify, defend and hold harmless Webimpacto from and against any and all claims, suits, damages and injuries, including defense costs, arising out of any claim in relation to any third party whose rights have been or are infringed or violated by reason of the material provided by Client.
6.2 All text and information provided by the Client shall be delivered to Webimpacto in digital format, prepared for insertion in the Projects. When any material is provided by the Client in another format, such as photographs, illustrations or other visual material, paper texts, etc., it must be of professional quality and ready to be digitalized without further preparation or alteration. This process (scanning, OCR, typing, etc.) will be quoted as a supplementary service. The Client shall pay all costs incurred in connection with materials delivered that do not meet such standards.
6.3 Webimpacto will, at Client's request, return all materials provided by Client within 30 days after completion of the Project and full cancellation of payment. Webimpacto will take reasonable precautions to safeguard original or other materials provided by Customer. Webimpacto's liability for damage or loss of material provided by Client shall be limited to the replacement of the material in its commercial or virgin form. Webimpacto undertakes to store the originals for 2 months from the completion of the Project. Once this period has expired, Webimpacto will not guarantee their return.
6.4 If necessary, Client shall provide Webimpacto's specialists with access to the programs and platforms during the term of the Contract, in order to carry out the contracted maintenance work, procuring all necessary permissions and passwords from third parties that are necessary for access by Webimpacto's technicians.
7.1 The parties shall remain the owners of the industrial and intellectual property rights that they held at the time of entering into the Agreement. The parties respectively authorize each other to use the name and logo/trademark of the other for the sole purpose of enabling the execution and performance of the Agreement.
7.2 Unless otherwise stated in the Proposal, (i) Webimpacto shall be the exclusive owner of all intellectual and industrial property rights generated by its personnel from the performance and execution of the Contract; and (ii) Client shall be the owner of the deliverables generated under the assignment, without the right of assignment to third parties and limited to the term of the Contract.
7.3 Webimpacto may contract with third parties to provide services such as copywriting, photography, and illustration. Client agrees to any terms that may accrue, including credits, with respect to the reproduction of material that may be imposed on Webimpacto by such third parties.
8.1 Except as otherwise stipulated in the Proposal, the Client is informed, acknowledges and agrees that the provision of the Services takes place "as is", i.e. without warranties of any kind, express or implied, as to merchantability and/or fitness for a particular purpose or results.
8.2 Except in cases of gross negligence or wilful misconduct, Webimpacto's total liability in connection with the Agreement for any item shall be limited, at most, in the aggregate, to the amount corresponding to the price paid to Webimpacto by Customer for the Services during the last annual period. Before Webimpacto is deemed to be in breach of its obligations, Customer will always provide Webimpacto with an opportunity to correct any deficiency/insufficiency in the provision of the Services.
8.3 Webimpacto shall not be liable, in any case, for damages that may be qualified as indirect, consequential damages, loss of profit or loss of expected results, business, revenue, customers, data, image, commercial reputation in the market, as well as those arising from its inability to provide the Services for reasons beyond its control, such as, for example, discontinued equipment and suppliers' stock out of stock. Webimpacto will also not be responsible for the loss of any data caused by the manipulation motu proprio of the Client's personnel.
9.1 Each of the parties shall be exclusively responsible for the fulfillment of their respective obligations, including but not limited to tax, labor and social security matters, and shall indemnify the other party against any claim that may be motivated by the breach of such obligations.
9.2 Webimpacto assumes fully, and for all purposes, with respect to its personnel assigned to the provision of the Services, the legal character of an employer with all the rights and obligations inherent to such conditions. In no case shall it be considered that there is any employment relationship between the Client and Webimpacto staff that may be providing their services on the premises of it. In no case can the displacements of Webimpacto's personnel to the Client's premises be considered as an assignment of personnel.
10.1 Client shall inform Webimpacto in writing if any portion of the documentation provided by Client is confidential. In no case shall information that is in the public domain be considered confidential.
10.2 Webimpacto will keep the information confidential, and will not use it, unless authorized in writing by Client, even after termination of this Agreement. Webimpacto shall limit the dissemination of the confidential information only to persons directly involved in the provision of the Services, and shall not disclose it to any third party under any circumstances, even in the event of termination of this Agreement.
10.3 Client expressly authorizes Webimpacto to publicly announce that the former is part of Webimpacto's client portfolio, both in press publications and at events for advertising and marketing purposes.
11.1 Each of the parties shall be exclusively responsible for compliance with the obligations arising for each of them from the current legislation on data protection.
11.2 Each of the parties is informed and consents that the personal data provided as a result of the Contract and its execution are processed for the purpose of maintenance, monitoring and control of the contractual relationship. The data may be communicated to third parties when this is necessary for the execution and fulfillment of the Contract, as well as for the fulfillment of any applicable legal obligation. The rights provided for in the current legislation on data protection are recognized, which may be exercised by communication to the addresses specified in the heading, and may also go to the Spanish Data Protection Agency (www.aepd.es) in the event that it is considered that the other party has failed to comply with the applicable regulations in force. The data will be processed during the term of the Contract and, once terminated, during the legal periods of limitation of the obligations arising from the processing. The legal bases for data processing are consent, performance of the contractual relationship, legitimate interest and/or compliance with legal obligations.
11.3 To the extent that the activities of one of the parties (Processor) involve the processing of and/or access to personal data owned by the other Party (Controller), this shall determine that the Processor must comply with the following obligations: (a) process the personal data exclusively in accordance with the instructions provided in writing by the Controller; (b) keep a record of the processing carried out on behalf of the Controller; (c) where applicable, appoint a Data Protection Officer and communicate his contact details to the Controller; (d) not communicate the personal data to any third party except when expressly authorized by the Controller; (e) ensure that the persons authorized to process the personal data receive the necessary training on personal data protection and undertake, expressly and in writing, to respect confidentiality and to comply with the corresponding security measures; (f) allow the Controller to review all documentation necessary to evidence compliance with the obligations hereunder, as well as to allow and contribute to the performance of inspections and audits by the Controller; (g) support the Controller in carrying out data protection impact assessments and/or in carrying out prior consultations with the supervisory authority, where appropriate; (h) to notify the Controller, without undue delay and in any case within a maximum period of 48 hours, and via e-mail, of any security breaches of the personal data under its responsibility of which it becomes aware; (i) to provide the Controller with reasonable assistance in any requests, instances, requirements and any other formalities that may be necessary or appropriate before the competent administrative or judicial authorities and, in particular, before the Spanish Data Protection Agency; (j) in accordance with the instructions of the Data Controller, return, delete or deliver to third parties all personal data and, if applicable, the media where they are stored, once they are no longer relevant for such purpose or the Contract is terminated, being able to keep the data only in case there is a legal duty of conservation; and (k) implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk (probability and severity), which, if applicable, include, among others: (1) pseudonymization and encryption of personal data; (2) the ability to ensure the continued confidentiality, integrity, availability and resilience of processing systems and services; (3) the ability to restore availability and access to personal data promptly in the event of a physical or technical incident; (4) a process for regular verification, evaluation and assessment of the effectiveness of technical and organizational measures to ensure the security of the processing.
12.1 The Contract is of a commercial nature and shall be governed by its own clauses, and in all matters not foreseen therein, by the provisions of the Commercial Code, special laws and commercial uses, and in the absence thereof, by the Civil Code. Unless expressly stated otherwise in the Proposal, the legal nature of the assignment shall be that of a service lease.
12.2 The parties are independent contractors. Neither party may act as a representative or agent of the other, nor may it take any action that implies an appearance of relationship with or dependence on the other.
13.1 Webimpacto may subcontract in whole or in part, with third parties, the provision of the Services, such third parties acting under the coordination of Webimpacto.
13.2 Client is expressly prohibited from making professional offers of any kind to Webimpacto's employees, without obtaining prior written authorization from Webimpacto. In case of breach of the above, the Customer agrees to pay to Webimpacto, as a penalty clause, an amount equivalent to two and a half times the gross salary received by the Webimpacto employee on the date of hiring.
13.3 All notices and communications to be made by the parties under the Contract shall preferably be made by e-mail, and shall be effective upon receipt. Either party may change its address by notifying the other party of the new address.
13.4 Webimpacto may at any time freely assign the Agreement, as well as the rights and obligations arising therefrom. Webimpacto shall notify the Customer of the assignment in writing. The Customer may not assign all or part of the Agreement without the prior written consent of Webimpacto.
13.5 The unlawfulness, invalidity or ineffectiveness of any of the clauses of the Contract shall not affect the effectiveness of the rest, provided that the rights and obligations of the parties are not materially affected. Such clauses shall be replaced or integrated with others which, being in accordance with the law, correspond to the purpose of those replaced.
13.6 The Contract consisting of these General Conditions and the Proposal constitutes the only existing, valid and enforceable Contract and supersedes any other oral or written Contract that may have been previously entered into between the parties. Any modification of the terms of the Contract shall require its formalization, in writing, by both parties.
13.7 In the event that the normal development and provision of the Services may be affected by any event beyond the reasonable control of Webimpacto, Webimpacto reserves the right to activate the contingency protocols it deems necessary and adopt, among other measures, the suspension of the provision of the Services until the event in question ends.
14.1 The Agreement shall be governed by and construed in accordance with Spanish law.
14.2 For the resolution of any discrepancies arising in the development and interpretation of the Contract, the parties agree, expressly waiving any other jurisdiction that may correspond to them, to submit the knowledge of the same to the exclusive jurisdiction of the Courts and Tribunals of the city of Barcelona.
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