C/Villanueva 28, 2ºDCHA
28001 MADRID (Spain)
PROFESSIONAL SERVICES TERMS AND CONDITIONS
(Spain – February 2021)
1 DEFINITIONS. “Agreement” means and Proposal. these Professional Conditions, “Customer” Services Terms together with the means the IBTICAE customer identified in the Proposal. “Deliverables” means the deliverables specified in the applicable Proposal. “Services” means the services specified in the Proposal; Services include the Deliverables. For the purposes of this Agreement, “Proposal” means a mutually agreed services proposal or similar IBTICAE- generated document referencing this Agreement.
2 SERVICES. Subject to the terms and conditions of this Agreement, IBTICAE shall provide the Services in accordance with the applicable Proposal(s). A Proposal may provide a time schedule for completion of the Services (“Schedule”). Schedules shall not be considered firm or fixed performance dates, and are only to be regarded as estimated beginning dates for the tasks and activities to be performed hereunder; IBTICAE agrees to use diligent efforts to meet such dates. Customer agrees to cooperate with IBTICAE in the performance of the Services, including, without limitation, providing IBTICAE with reasonable facilities and timely access to data, information and personnel of Customer. Any changes in the scope of the Services must be mutually agreed upon by the parties in writing.
3 PRICES AND PAYMENT. Customer shall pay all fees and expenses payable under this Agreement, including all amounts specified in the Proposal(s). Fees and expenses are exclusive of taxes, duties or other charges assessed by government authorities; Customer shall pay all taxes, duties and other charges assessed by government authorities in connection with the provision of Services under this Agreement (excluding taxes based on IBTICAE’s
net income). All payments are due thirty (30) days from the date of invoice. All sums of money are stated and payable in EURO. Any amount not paid when due will bear interest until paid at the rate of 1.5% per month or the maximum rate of interest allowed by applicable law, whichever is less. In addition, IBTICAE may, without waiving any other rights or remedies to which it may be entitled, suspend performing the Services until all outstanding invoices have been paid and/or seek collection of all amounts due, including reasonable legal fees and costs of collection. Customer’s payment obligations under this Agreement are noncancelable and the sums paid nonrefundable, except as expressly provided in this Agreement.
4 ACCEPTANCE OF SERVICES.
4.1 The Customer undertakes to examine whether the Services have been rendered in accordance with the Agreement, and to accept such Services in writing if they have been rendered in such a way. Non-essential defects shall not entitle the Customer to refuse acceptance but rather be subject to warranty provisions.
4.2 The acceptance can only be declined in writing and with a notice of defects stating the circumstances of the defect in a reproducible manner.
4.3 The inspection period shall be a maximum of 4 (four) weeks from the handing over of the Services or, when such handing over is not possible, from the notification of completion of the Services by IBTICAE. If acceptance is not declared before expiration of the inspection period even though the Services essentially fulfil the agreed characteristic features, or if the Customer refuses acceptance without sufficient cause, the Services shall be deemed to have been accepted. Furthermore, acceptance shall be deemed to have been declared if the Customer
uses the result for a period of more than six days in the operating business.
4.4 The Customer shall be obliged, of its own accord at regular intervals and additionally on request of IBTICAE, to inspect intermediary results. The Customer shall notify IBTICAE without undue delay of any defects – in particular false assumptions and conclusions – of such intermediary results.
5 IBTICAE PROPERTY RIGHTS INTELLECTUAL
This Agreement does not transfer from IBTICAE to Customer any intellectual or industrial property rights and all such rights in all software, technology, information, data, documentation or other materials brought by IBTICAE into any engagement for the provisions of Services, or which are created or prepared by IBTICAE in the course of or as a result of providing any of the Services, shall belong to and remain with IBTICAE. Subject to payment in full for the Services, IBTICAE grants Customer a non-exclusive, non-transferable license to use the Deliverables, if any, solely for Customer’s own internal use. Without limiting the foregoing, Customer shall not reverse engineer, decompile or disassemble the Deliverables, except to the extent explicitly permitted by applicable law without possibility of contractual waiver.
6 CONFIDENTIAL INFORMATION.
6.1 “Confidential Information” means any nonpublic information of a party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that is disclosed orally, is identified as “Confidential” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days of any such disclosure, but excludes any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) the receiving party can demonstrate was rightfully in the receiving party’s possession the time of
disclosure, without an obligation of confidentiality; (iii) the receiving party can demonstrate was independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without any duty of confidentiality or restriction on use or disclosure.
6.2 Each receiving party will: (i) take all reasonable security measures to maintain the confidentiality of the other party’s Confidential Information, but not less than the measures it uses for its own Confidential Information of similar importance; (ii) use the other party’s Confidential Information only for the purpose of exercising its rights and performing its obligations under this Agreement; and (iii) limit disclosure of the other party’s Confidential Information to its employees and contractors that need to access such Confidential Information for the foregoing permitted purpose and are subject to legally binding obligations to maintain the confidentiality of the Confidential Information that are at least as stringent as the obligations under this Section. The receiving party may disclose Confidential Information of the other party to the extent required by applicable law or order of a court, government agency or other government body, but only if the receiving party provides prompt notice of that requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict the disclosure.
7 LIMITED WARRANTY; DISCLAIMERS.
7.1 IBTICAE will will provide the Services to Customer in a professional manner with due care and skill.
7.2 IBTICAE warrants that the Services will comply with the specification for them set out in the Proposal for a period of twelve (12) months from completion of performance of the Services.
7.3 Except as expressly stated in this Section and to the extent permitted by applicable law, IBTICAE makes no warranties of any kind, with respect to the Services. IBTICAE further expressly disclaims the warranties of satisfactory
quality, fitness for a particular purpose and noninfringement.
7.4 Customer’s exclusive remedy and IBTICAE’s entire liability for the breach of any warranties set out in this Section 9 shall be for IBTICAE to correct the warranty deficiencies, or if IBTICAE cannot substantially correct a breach in a commercially reasonable manner, for IBTICAE to terminate the relevant Services and refund the fees paid to IBTICAE for the deficient Services.
8 LIMITATION OF LIABILITY.
In no event shall IBTICAE , its affiliates or its contractors be liable for any indirect, consequential, incidental, exemplary, punitive or special damages (including lost data, savings, profits or revenues) arising from or related to this agreement, even if IBTICAE has been advised of the possibility of such loss or claim. IBTICAE’s entire liability from any cause relating to or arising out of this agreement, regardless of the form of action, whether breach of contract, tort (including negligence), product liability, or otherwise, will not exceed in the aggregate the fees actually paid by the customer pursuant to the applicable proposal for the services which are the subject matter of or directly related to the causes of action asserted. No action, regardless of form, arising out of or relating to the agreement may be brought by customer more than one year after the cause of action accrued / the damage was discovered by customer.
9 TERM AND TERMINATION.
Either party may terminate this Agreement if the other party materially breaches its obligations under this Agreement and does not cure such breach within thirty days of receipt of written notice of such breach. In addition, IBTICAE may terminate this Agreement if Customer makes a general assignment for the benefit of its creditors, is the subject of an involuntary bankruptcy petition, or is otherwise subject to insolvency or dissolution proceedings. Termination shall not relieve Customer of any payment obligations accrued by Customer prior
to the termination. Sections 3, 4.1, 5, 6, 7, 8, 9, 10, 11, 12 and 13 shall survive termination of this Agreement in accordance with their terms.
10.1 IBTICAE shall, at its own expense and subject to the terms of this Agreement indemnify, defend and hold Customer harmless from and against any claim(s) brought against Customer by a third party alleging that the Deliverables or any portion thereof as furnished under this Agreement and used as permitted under this Agreement infringes any copyrights, trademarks, patents, or violates any trade secrets, provided that Customer gives IBTICAE prompt written notice of such claim, assistance and information reasonably requested by IBTICAE, and the sole authority to defend and settle such claim.
10.2 Notwithstanding the foregoing 10.1, IBTICAE shall have no liability for any infringement arising from: (i) the integration or combination of the Deliverables together with other materials or products not supplied by IBTICAE, if the infringement would have been avoided in the absence of such integration or combination; (ii) modifications to the Deliverables that were not authorized by IBTICAE or were undertaken at the request of or direction of Customer, (iii) Customer’s failure to use corrections or enhancements made available by IBTICAE; or (iv) Customer’s use of the Deliverables in a manner that does not comply with this Agreement.
10.3 If the Deliverables become, or in IBTICAE’s opinion are likely to become, the subject of a claim of infringement, IBTICAE may, at its sole option and expense, either: (i) substitute non-infringing materials of substantially similar functionality; (ii) modify the infringing Deliverables so that it no longer infringes but remains substantially similar in functionally; (iii) obtain for Customer, at IBTICAE’s expense, the right to continue use of such Deliverables; or (iv) if none of the foregoing is commercially feasible, IBTICAE will take back the infringing Deliverables, and
grant Customer a refund for the fees actually paid to IBTICAE for the same less any depreciation as calculated on a five-year straightline basis commencing with delivery of the infringing Deliverable.
10.4 Sections 10.1 to 10.3 state IBTICAE’s entire liability and customer’s sole and exclusive remedy for infringement claims and actions.
10.5 If Customer provides IBTICAE with access to specifications, content or other Customerprovided materials (“Customer Materials”), Customer shall indemnify, defend and hold IBTICAE harmless from and against any claim(s) brought against IBTICAE by a third party alleging that the Customer Materials or any portion thereof infringes any copyrights, trademarks, patents, or violates any trade secrets. Furthermore, Customer shall indemnify, defend and hold IBTICAE harmless from and against any property damage or personal injury (including death) claim(s) brought against IBTICAE by a third party to the extent that such claim(s) arise out of Customer’s use of the Deliverables or Services, except for third party claims for which IBTICAE is responsible under Section 10.1.
Customer shall not, during the term of the applicable Services engagement and for one (1) year thereafter, solicit for hire as an employee, consultant or otherwise any of IBTICAE’s personnel who have had direct involvement with the Services, without IBTICAE’s express written consent, provided, however, that Customer shall not be precluded from hiring any employee of IBTICAE who responds to any public notice or advertisement of an employment opportunity.
Customer acknowledges that the Services are subject to Spanish and European export jurisdiction. Customer agrees to comply with all applicable international and national laws that apply to the Services, including the Spanish and European Export regulations, as well as end-user, end-use and destination restrictions issued by Spanish and
other governments or authorities. Customer further agrees not to export or re-export the Services, technical data or other materials provided under this Agreement without obtaining, at Customer’s sole cost and expense, any required authorization from the applicable governmental authority as may be required by applicable law.
13 GENERAL. Amendment: Entire, Agreement;
This Agreement, together with the Proposal(s), constitute the complete agreement between IBTICAE and Customer with respect to the subject matter hereof and this agreement supersedes all prior oral and written understandings, communications or agreements between IBTICAE and Customer with respect to the subject matter. If Customer issues a purchase order or other instrument covering the Services provided under this Agreement, it is expressly agreed that the terms of this Agreement supersede any different, conflicting or additional terms in a purchase order or other customer issued instrument. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by the authorized representatives of the parties. Choice-of-law and Forum: This Agreement and any acts or omissions relating to its execution shall be construed and all claims, disputes or actions hereunder shall be settled under the laws of France without regard to its conflict of laws principles. IBTICAE and Customer agree to submit to the exclusive jurisdiction of, and venue in, the commercial tribunals and courts of Paris, France, in any dispute arising out of or relating to this Agreement. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Severability: If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated. Independent Contractor: The parties are independent contractors. Neither party will have any rights, power or authority to act or
create an obligation, express or implied, on behalf of another party except as specified in this Agreement. Force Majeure: Neither party shall be liable to the other party for any failure to perform any of its obligations (except for Customer’s payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control. Notices: To give notice under this Agreement, the notice must be in writing and sent by registered mail, receipted courier service or facsimile telecommunication to the address first set forth in this Agreement (or to such other address as any party shall specify by notice in writing to the other party), and marked to the attention of “Legal Department”, if sent to IBTICAE. Notices will be effective upon receipt. Section Headings: The section headings contained in this Agreement are inserted for reference purposes only and shall not affect the meaning or interpretation of this Agreement. Assignment; Subcontracting: Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of IBTICAE. IBTICAE may assign or delegate its rights and/or obligations, in whole or in part, to any affiliate, parent, subsidiary or successor of IBTICAE. IBTICAE may use subcontractors in the performance of its obligations, in which case IBTICAE will remain responsible for the performance by such subcontractors. Software; Services: Customer acknowledges that no IBTICAE software products are licensed under this Agreement; the licensing of such software products requires Customer entering into a separate software license agreement and payment of separate fees to IBTICAE. Any services acquired from IBTICAE are bid separately from software licenses, and Customer may acquire either services or software licenses without acquiring the other. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.