These general terms of services will be applied and are an essential part of all Offers and Services provided to the Client by Advanced Software Production Line, S.L. (hereinafter ASPL), with CIF B-82827932.
These conditions supersede any general terms that will be declared applicable after the formalization of a previous contract.
- 1.1.- Client: the party that has signed a Contract with ASPL.
- 1.2.- Service: the service to be provided by ASPL to the Client.
- 1.3.- Contract: the contract signed between ASPL and the Client, whose purpose is the provision of the ASPL Services.
- 1.4.- Compensation: reimbursement of (or part of) the recurring price corresponding to the last month of the Service provided.
- 1.5.- Force majeure: any cause that prevents either of the two Parties from fulfilling any or all of their obligations under the Contract arising out of or attributable to acts, events, omissions or accidents beyond the reasonable control of the Parties for its prevention. Those acts, events, omissions or accidents will include, among others, strike, lockouts or other industrial disputes (whether or not the labour force of the Parties or other parties are involved), unpredictable acts, embargoes, war, terrorism, mutiny, riots social, malicious damage, compliance with any law or government order, rule, regulation, address, accident, equipment breakdown, fire, flood or storm or the subsequent effects of any other event.
SECOND.- PRICE AND METHOD OF PAYMENT
- 2.1.- The exact price of the Service contracted by the Client will be determined by the type of Service and the duration contracted.
- 2.2.- Prices may be unilaterally varied by ASPL according to market needs, notifying this change to the Client at least 30 days before the date of renewal of the Service and having the Client the possibility to terminate the contract unilaterally with a 15 days before the date of renewal of the Service, so that ASPL does not renew the Service with the new rates.
- 2.3.- The Client must pay the amount corresponding to the Service contracted through the available forms of payment established at that moment. A different method of payment may also be agreed as long as the specific conditions of the Client justify it. In the event of a situation of non-payment or a history of non-payments in ASPL –also considering any return of a charge made by ASPL as a non-payment–, the Client will only have at its disposal certain payment methods specific for both new contracts and for the renewal of Services of the Client.
- 2.4.- The totality of the bank expenses of the transfers issued in favour of ASPL for the payment of contracted services will always be the responsibility of the transferor, generally, the Client.
- 2.5.- The Client must duly inform the concept of income.
- 2.6.- For each bank return due to causes attributable to the Client, ASPL will charge an additional fee of 1.00% (one percent) of the amount returned with a minimum amount of 5.00 euros (taxes not included).
- 2.7.- ASPL reserves the right to temporarily suspend the Service provided due to any incident attributable to the Client in the experienced in the payment procedure and/or non-payment until its resolution. If the Customer does not proceed to pay after 10 days after the notice of the temporary suspension, the Service will be permanently terminated due to a breach of the contract on their side.
- 2.8.- All the Services in ASPL are activated with an automatic renewal, so that ASPL will proceed to its renewal, as long as the payment data of the Client are correct. The Client may request at any time the deactivation of the automatic renewal. ASPL will always notify and inform the Client that the Service will be renewed prior to its expiration, and the Client may request its cancellation, thus terminating the contract. Once the Service is renewed without any manifestation against it by the Client, in no case there will be a refund of the payment.
- 2.9.- ASPL may deactivate the automatic renewals for a Client in the event or a history of non-payments in ASPL. In the event that the Client had deactivated these automatic renewals, he assumes that he must proceed to renew the Service before the end of the term of the last contract made –date in which the Service will expire– to avoid last-minute incidents and unexpected consequences. The Client assumes all responsibility for the losses or incidents that may arise from the renewal request after this deadline, limiting the responsibility of ASPL to return, when appropriate, the amount that the Client had paid for a renewal after the deadline that finally could not be done.
- 2.10.- ASPL will in no case refund the amount of a renewal that was successful.
- 2.11.- ASPL may inform the Client in the renewal notice and/or in the invoice of the conditions, new or not, that will be applied from the moment of renewal. The renewal of the Service will imply accepting these conditions, the Client not being authorized to carry out the renewal without accepting them.
- 2.12.- On the working day prior to the deadline or expiration of the Service without the Client having made the payment corresponding to the renewal, ASPL will proceed to not renew the Service, with the consequences that this action derives, and will terminate the current contract. In any case, ASPL specifies that it will try to carry out this renewal if the Client so requests until the last day of the deadline, but it does not assume the responsibilities that may occur if it is not carried out on time due to non-compliance of the Client on the early renewal noted above.
- 2.13.- The Service that is the object of this contract, unless expressly stated against it in its particular conditions, is subject to the free withdrawal of the Client within 15 days after the registration of the Service without any additional cost for this cancellation. After this period, the Client who does not want to continue with the Service may use the resolution indicated in these Conditions.
- 3.1.- The Service will have the duration requested by the Client based on the periods specified for each type of Service. If on the date of the expiration date of the Service the Customer had activated the automatic renewal of the Service, this will be extended for the same period as long as there is no return or incident with the payments made by the Customer in order to make that automatic renewal.
- 3.2.- ASPL will in advance notify the Client via email that the automatic renewal will be carried out, so that the Client is fully informed of this situation and might, when appropriate, request the deactivation of that automatic renewal. If the Client does not have this option activated and does not want to continue with the Service, they must simply allow it to expire in such a way that if ASPL does not receive a renewal order, the contract expires on the same day as the expiration date of the Service.
FOUR.- SERVICE LEVEL AND NON-COMPLIANCE
- 4.1.- ASPL will provide the Service to the Customer except when it cannot be due either to the Client or to a Force Majeure Case.
- 4.2.- The level of service, unless the specific conditions of either the Client or the Service specify otherwise, will be 99.9% of the annual availability.
- 4.3.- In the event that ASPL does not comply with the levels of service, ASPL must grant to the Customer a Compensation proportional to the time during which the Service was not provided and which in no case will exceed the monthly cost of the Service.
- 4.4.- The Client and ASPL agree that the aforementioned Compensation is an ideal pre-estimate of the loss suffered by the Client in the event of such breach. ASPL does not guarantee, explicitly or implicitly, to obtain or guarantee any results of the Services.
- 4.5.- The Client agrees that the Compensation will be by itself and exclusively the remedy to the breach of the Service Levels by ASPL.
- 4.6.- For the calculation of the corresponding levels of service, performance or availability problems will not be counted:
- 4.6.a.- Caused by Force Majeure cases.
- 4.6.b.- Caused by non-ASPL software or hardware (for example, Client’s devices or networks, blacklists).
- 4.6.c.- Derived from the use of hardware or software not provided by ASPL.
- 4.6.d.- Caused by not respecting mandatory configurations, not complying with acceptable use policies or due to the use of a Service inconsistent with its characteristics and functionalities.
- 4.6.e.- Originated by the Client’s attempts to carry out operations that exceed the pre-established quotas or due to limitations of the Service or limitations established by ASPL due to the suspicion of abusive behaviour.
- 4.6.f.- Maintenance tasks performed by ASPL of its equipment or software. These tasks will be notified in advance and, as far as possible, the schedule will be agreed with the Client.
- 4.6.g.- Derived from petitions requested by the Client.
- 5.1.- Without prejudice to Clause 5.2, and to the extent permitted by applicable law, ASPL’s responsibility for the loss and/or damage caused as a result of the Contract shall be limited to 50% of the sum of payments actually made by the Client to ASPL during the 12 months immediately preceding the event causing the damage, both for each incident and for the sum of all the incidents occurring in that period.
- 5.2.- Unless a disposition to the contrary in the Contract, and to the extent permitted by applicable law, neither party shall be liable with respect to the other party or to third parties for losses and/or special, unforeseen, indirect, punitive or resulting damages, including, but not limited to: loss of business, income, interests or benefits, loss of use or data, loss of savings or anticipated savings, loss of investment, loss of goodwill, loss of reputation or image, of capital or additional administrative cost, or any other economic damage, or damage suffered or claimed by third parties, provided or not, derived or related to the Contract and regardless of whether these damages:
- 5.2.a.- are caused by that Party or their employees, contractors or subcontractors.
- 5.2.b.- are caused by an action, breach, omission, delay or negligence.
- 5.3.c.- are presented in an action based on a contract, statute, equity or tort, including negligence or other legal theory.
SIXTH.- OBLIGATIONS AND RESPONSIBILITIES OF ASPL
- 6.1.- In its relations with the Client, ASPL must act with due diligence in the use of its commercial activity, loyally and in good faith.
- 6.2.- ASPL will deliver to the Client all the technical and functional information necessary for the development of the server access service.
- 6.3.- ASPL will not be responsible for any delay or its consequences when it is due to the passive attitude or lack of diligence of the Client. It is understood that there is a lack of diligence by the Client when he does not renew, and therefore, does not pay the Service before its expiration.
- 6.4.- ASPL, and any member of its organization, is exempt from any responsibility exclusively attributable to the Client or derived from any claim, including the payment of fees to lawyers for actions and claims originated by third parties for breaches from the Client, or any other claim for breach of the current legislation.
- 6.5.- ASPL is not responsible in any way (direct or subsidiary) for any direct or indirect damage caused by:
- 6.5.1.- the Client when making inefficient or bad faith use of the Service.
- 6.5.2.- any virus or computer worm or any similar or malicious material or code transmitted electronically.
- 6.5.3.- any hacker attack on the systems with the consequent uselessness of the Service by a hacker or other fraudulent use of the computer system with the intention of causing damage to ASPL, the Client or any other, regardless of who might be the cause.
- 6.5.4.- security flaws in the software used to provide the Service.
- 6.5.5.- unauthorized access to the Service.
- 6.6.- Depending on the type of Service, ASPL may make, free of charge or with cost, backup copies of the content stored in the Service. ASPL is not responsible for the loss or deletion of the data, regardless of whether these backup copies are made, being the exclusive responsibility of the Client to have their own backup copies.
- 6.7.- ASPL does not guarantee at any time the total replacement of the data which might have changed during the time between the last copy and the deletion of the data. The Customer is solely responsible for their data and therefore should have the necessary copies for a possible restoration in case of loss.
- 6.8.- ASPL includes, in those Services that have a backup copy, the Data Restoration Service that may be necessary if the incident is attributable either to ASPL or to the Client without guaranteeing, as described in the previous clause, that the Restoration can be carried out successfully.
- 6.9.- In no case ASPL will be responsible for the loss of data, whatever its origin, interruption of commercial activities or any damage derived from the operation of the services or the expectations generated to the Client, being exempt from any responsibility.
- 6.10.- ASPL may modify in any way the characteristics and conditions of the Service, always with the aim of improving them and when this implies a benefit for the Client. In the event that a minority of customers are considered injured, the benefit to the largest number of customers will prevail in accordance with the modifications.
- 6.11.- ASPL will notify the Client of any modification or change of its Service, having the Client the possibility of terminating the contract, within a period of 15 days from the communication, if they do not agree with the changes that will be made.
- 6.12.- ASPL understands that the mere publication on our website of the modifications that affect the contracted services implies their notification to the Client. However, to any possible extent, ASPL will attempt to notify its customers individually of any changes made.
- 6.13.- ASPL reserves the right to install in its equipment the most appropriate versions at any time, with the sole objective of guaranteeing the provision and security of the Service.
- 6.14.- ASPL reserves the right to assign its position in this contract to other companies, always with prior notice of at least 30 days to the Client.
SEVENTH.- OBLIGATIONS AND RESPONSIBILITY OF THE CLIENT
- 7.1.- The Client is obliged to make good use of the Service and therefore not to use it in bad faith for any practice that is prohibited by law, that infringes the rights of third parties or is rejected by commercial uses.
- 7.2.- The Client assumes all responsibilities for the contents transmitted and stored in the Service, and ASPL is expressly exempted from all types of civil, criminal or other liability that may arise from claims in relation to the content and use made of the Service.
- 7.3.- ASPL is exempt from any direct or indirect responsibility that the Client may cause to third parties as a result of the use of the Service.
- 7.4.- The Client expressly waives to claim any contractual or extra-contractual liability for the possible damages or losses derived from its own breach of these conditions or derived from any malicious or negligent actions by the Client.
- 7.5.- The Client is solely responsible for complying with the legal obligations resulting from the use of the Services, such as intellectual and industrial property laws, personal data protection, information and electronic commerce services, consumer rights, protection of minors, public order, internet uses and any that must be met.
- 7.6.- The Client is solely responsible for the installation and administration of computer programs that do not come pre-programmed in the Service as well as the technical problems that they cause in relation to the configuration of the server and the pre-programmed software. It is also solely responsible for the infringement of licenses, intellectual and industrial rights of third parties of all software installed.
- 7.7.- Any problem that requires the technical intervention of ASPL in relation to software installed or belonging to the Client will be billed as an additional service.
- 7.8.- ASPL, at the moment in which it has reliable knowledge of the introduction by the Client of contents that violate the rights of third parties or those of ASPL, such as contents that violate intellectual or industrial property rights, fundamental rights or any other content that is contrary to the law, will proceed to suspend or permanently cancel the provision of the Service and therefore withdraw the illegal contents. In addition, ASPL will immediately notify the competent authorities about these incidents by providing them with all the information that is required by the Court.
- 7.9.- The Client is responsible for carrying out all the actions that may be required with due diligence so that the Service can be provided correctly.
- 7.10.- The Client will be responsible for the security and confidentiality of the keys that are provided and must be kept in a safe place in order to prevent access to unauthorized third parties.
- 7.11.- The Client will respond criminally and civilly for the damages caused to the servers and computer systems of ASPL when these are due to negligent or malicious actions performed by the Client.
- 7.12.- The Client will indemnify ASPL for the expenses that it had as a result of any imputation whose responsibility was attributable to the Client, including the attorneys’ fees and expenses, even in the event of a non-definitive judicial resolution.
- 7.13.- The Client will be solely responsible for the maintenance and creation of their own backup copies of the contents and all the information hosted in the Service.
- 7.14.- The Client must use and manage the Service respecting the technical standards set forth by ASPL. If ASPL detects an abusive use of the Service that harms other customers, it reserves the right to suspend it totally or partially.
- 7.15.- It is expressly prohibited:
- 7.15.1.- The use of the Service by the Client for sending unsolicited bulk mail (SPAM). Sending unwanted emails directly damages ASPL by damaging its image and prestige. In the event that ASPL receives notifications about spam being sent, the Customer will be informed so that, immediately, it will cease with these bad practices. ASPL will not assess whether the addresses to which the Client sent unsolicited mail were obtained with the consent of the owner, but will act as long as any organization dedicated to the fight against these activities so notifies. If the Client does not abandon the use of these practices, ASPL will immediately cancel the Service and terminate this contract, reserving the exercise of whatever legal actions it deems appropriate to defend its interests.
- 7.15.2.- The use of the Service by the Client for sending mass mailings in general, although these cannot be considered SPAM. If this occurs, ASPL will apply the same notification procedure and, where appropriate, cancellation of the Service due to SPAM delivery.
- 7.15.3.- The use of programs designed to cause problems or attacks on the network.
- 7.15.4.- To try to test the security of the Service by making any type of entry or action that is not strictly necessary for the benefit of the Service by the Customer.
- 7.15.5.- To use the Service to control dangerous situations or that require a fail-safe system such as nuclear power plants, navigation or air control, communication systems or whose failure may cause death, personal injury, environmental damage or economic damage not covered by the Compensation.
- 7.15.6.- To use the Service for an activity that ASPL, at its discretion, considers harmful.
- 7.16.- ASPL will not be liable for damages caused by computer viruses that may have been downloaded by mail, http, ftp or any other means. Both the Client and the other users of the Service are responsible for keeping up to date their computer equipment, workstations, etc., as well as having an updated antivirus.
- 7.17.- ASPL may interrupt the Service when the Client breaches any of the existing clauses in these Conditions and, especially, when the Client commits some type of illegal activity, does not pay the Service or additional costs, and when the Client uses the Service in violation of the provisions of these Conditions. Service interruptions that refer to any of the causes included in this clause will in no case result in Customer Compensation.
- 7.18.- When the Client intentionally provides inaccurate or false information, or when it does not correct or update the information provided at the time to ASPL, or when it does not update its contact information, or does not respond within 5 calendar days to ASPL’s questions regarding the veracity of the contact data associated to its registration, there will be a cause for the termination of the contract and grounds for the cancellation of the Service by ASPL.
- 7.19.- The Service object of this contract is carried out personally with the Client. ASPL admits its transfer by the Client to a third party as long as he performs the procedure safely.
- 7.20.- The Client must fulfil all the obligations contained in these Conditions even if they are not expressly included in this clause.
EIGHTH.- FORCE MAJEURE
- 8.1.- Neither party shall be liable for breach of the obligations arising from this document and, therefore, there will be no right to compensation when that breach is due to force majeure.
- 8.2.- If the suspension for this circumstance exceeds 15 days, this contract may be cancelled upon request of any of the parties.
- 9.1.- The Service will end when, in addition to the legally established causes and those set forth in the different clauses of this document, one of the following concurs:
- 9.1.a.- Mutual agreement of the parties.
- 9.1.b.- Completion of the initial period of duration and, if any, of the successive extensions.
- 9.1.c.- Resolution for breach of any part of the obligations arising from this document.
- 9.2.- In the event of non-compliance by the Client, ASPL reserves the right to terminate the Service in advance without prior notice and without the Client being entitled to compensation or refund of any amount.
- 9.3.- In the event of non-compliance by ASPL, depending on what is specified in these conditions, the Client may cancel the Service with a 15-day notice, being its responsibility limited, in the event of a guilty breach by ASPL, to an objective responsibility that implies the reimbursement of the Compensation stipulated in clause FOUR (SERVICE LEVEL AND NON-COMPLIANCE) of this document.
- 9.4.- In the event of termination or cancellation of the Service, for the aforementioned causes or any others admitted by law, the Client must fulfil the obligations assumed prior to the termination of the Service against ASPL and against third parties.
TENTH.- INTELLECTUAL PROPERTY
- 10.1.- ASPL is the owner of all copyrights, trademarks, intellectual property rights, know-how and how many rights are related to the contracted Service.
- 10.2.- The contracting of Services by the Client will not imply in any case the transfer of rights, licenses or any other form of use and enjoyment of these rights, except for those that are strictly necessary for the fulfilment of the Service and only during the validity of it.
- 11.1.- Any information or documentation that either party contributes to the other in development and execution of the Service shall be considered confidential and exclusive of the person who contributes it and may not be communicated to third parties without their consent.
- 11.2.- The parties exclude from the category of confidential information all information that is disclosed by the party that owns it, that which becomes public, that which is to be disclosed in accordance with the laws or with a judicial resolution or act imperative of competent authority and that which is obtained by a third party that is not under the obligation of any confidentiality.
- 11.3.- This obligation of confidentiality persists up to three (3) years after the end of the Service.
- 11.4.- Neither party will acquire any right over any confidential information or other property rights of the other party as a result of the provision of the Service.
TWELFTH.- DATA PROTECTION
- 12.1.- ASPL, informs the Client that their data will be included in a file of their responsibility whose purpose is the maintenance of contractual relationships.
- 12.2.- Likewise, the Client guarantees to fulfil the duty of information regarding its employees whose personal data is communicated to ASPL for the maintenance and fulfilment of the contractual relationship, and the provision of the Service. The legal basis that legitimizes the processing of the data of the interested parties is the need for the management and execution of this Contract and the data will be kept during the validity of this Contract and, later on, for 15 years in order to attend to the possible responsibilities arising from the contractual relationship.
In any case, those affected may exercise their rights of access, rectification, cancellation/deletion, opposition, limitation and portability through written communication to “ASPL – LOPD, Avda. Juan Carlos I, 13, 2º C, Alcalá de Henares, 28806 Madrid”, providing a photocopy of their ID or equivalent document and identifying the right that is requested. Also, if they consider violated their right to the protection of personal data, they may file a complaint with the Spanish Agency for Data Protection (www.agpd.es).
- 12.3.- In the event that the Services provided by ASPL imply a processing of the Customer’s responsibility data in accordance with the provisions of Articles 28 and 29 of Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016, for this purpose the Client will be considered responsible for the file and ASPL will be considered as the person in charge of the processing.
- 12.4.- ASPL, as the person in charge of the treatment, assumes the following obligations:
- 12.4.1.- To access to the personal data responsibility of the Client only when it is essential for the good development of the Services for which it has been hired as well as to treat them according to the instructions that it receives from the Client.
- 12.4.2.- Not to allocate, apply or use personal data for purposes other than those indicated in these conditions, or in any of its annexes, or in any other way that involves a breach of these conditions.
- 12.4.3.- Not to disclose, transfer, transfer or otherwise communicate personal data, even for its preservation, to any third party, unless there is prior authorization from the Client.
- 12.4.4.- Except for the auxiliary services of the activity, in case in which ASPL needs to subcontract all or part of the contracted services in which the processing of personal data intervenes, it will communicate that previously and in writing to the Client, with a minimum advance of 1 month, indicating the treatments that are intended to outsource and clearly and unequivocally identifying the subcontractor and its contact details. Subcontracting may be carried out if the Client does not express his opposition within the established term.
- 12.4.5.- To inform the Client immediately if it detects that any of the Client’s instructions violates the regulations in force regarding data protection.
- 12.4.6.- To adopt and apply the appropriate technical and organizational measures to guarantee a level of security that prevents its alteration, loss, treatment or unauthorized access, taking into account the state of the technology, the nature of the stored data and the risks to which they are exposed, in accordance with the provisions of article 32 of the General Regulation of Data Protection.
- 12.4.7.- Once the agreed contractual relationship is fulfilled or resolved and justifies the access to personal data, ASPL will proceed to the complete destruction of the personal data of its responsibility, provided there is no legal provision that requires the preservation of the data, in which case it cannot be destroyed. ASPL may keep, duly blocked, personal data as long as responsibilities may arise from this relationship.
- 12.4.8.- To respect all the obligations that may correspond to it as Treatment Manager in accordance with the regulations in force and applicable at all times.
- 12.5.- In general, it is absolutely prohibited to provide personal data of minors without the express consent of their parents or legal guardians.
- 12.6.- The Client must expressly inform ASPL of the existence of specially protected data.
- 12.7.- ASPL reserves the right not to admit the provision of specially protected data.
THIRTEENTH.- PRIVACY AND SERVICES
- 13.1.- ASPL, during the provision of its services and for their development, collects information on the use of its servers that is subsequently used to improve the services provided to its customers.
- 13.2.- For the aforementioned purpose, ASPL monitors and collects information such as IP addresses, accessed web pages and email accounts, whether incoming or outgoing, analysing information for the prevention of attacks and misuse of the Service.
- 13.3.- The information obtained is only used for the development of the Services for the Client and for the detection of improper uses and prevention of attacks on the Services of both the Client and other ASPL clients, not being used in any case for other purposes different from these.
- 14.1.- The Client declares that he has read, examined and understood the content and scope of all the clauses of these conditions and, especially, those highlighted in bold.
- 15.1.- If any stipulation of this document is declared null or void, in whole or in part, by any Court or competent authority, the remaining stipulations will remain valid, unless the parties discretionally decide to terminate the Service.
SIXTEENTH.- APPLICABLE LEGISLATION AND COMPETENT COURTS
- 16.1.- In what is not provided for in this document, as well as in the interpretation and resolution of conflicts that may arise between the parties as a result thereof, Spanish legislation shall apply.
- 16.2.- If there is a conflict or difference between the parties in the interpretation and execution of the clauses of this document, and it is not resolved by mutual agreement, it will be resolved at the request of either party and after the communication by written to the other, through arbitration in the Chamber of Commerce and Industry of Madrid.