THIS AGREEMENT GOVERNS THE ACQUISITION AND THE CAPTIO SOFTWARE USE LICENCE.
You accept this Agreement when you accept and issue the Order Form for the procurement of the Products and Services referred to in this Agreement or signed the agreement for acquisition of Software with the Authorised Partner, thus accepting the Clauses and Conditions of this Agreement. If you are executing this Agreement in the name and on behalf of a company, you must have sufficient authority to bind that entity and its Subsidiaries to these Clauses and Conditions of the Agreement. If you do not agree with these terms and conditions, do not download, install, copy or use the Software, or access it, and cannot make use of the Products and Services contracted.
This Agreement is in effect between you (the "Client") and Captio Tech, S.L, ("Captio") as of the date of acceptance of this Agreement.
"Agreement": means this General Subscription Agreement.
"Documentation": means the confidential documentation referring to the Products and Services contracted, their use guides, and the updated policies accessible through the platform where the Software is located.
"Order Form": means the purchase order document specifying with the Products and Services contracted for by the Client and/ or any of its Subsidiaries, including any attachments or supplements for such purpose. The Products and Services contracted through the Order Form for a Subsidiary of the Client produce the same effects and obligations as this Agreement does for the Client.
"Products and Services": means the licence for the use of the software, the necessary service sessions, the extension of licences or settlements as well as the contracting of modules and/or additional products that the Client or its Subsidiaries have contracted under the Order Form or through the agreement for acquisition of software with the Authorised Partner.
"Services": Means the days of service that the Client has contracted for to integrate the Captio software into its corporate environment. As an example, imagine procuring various modules according to the specifications contracted for by the Client in the Order Form or in the agreement for acquisition of Software with the Authorised Partner.
"Licence": means the Captio Software Use Licence governed by this Agreement and the provisions of the Order Form. Each Software Use Licence contracted for means one user can use the same.
"Licence Plan": Covers all Captio Software Use Licences contracted for by the Client.
"Software": means the online and portable platform Captio owns that permits the input of tickets and invoices, extracting and classifying the data for subsequent use on the Internet.
"User": means any individual authorised to use the Software by reason of a subscription contracted for the Software Use Licence.
"Unregularised User": means those software use licences being used by the Client without previously contracting for them because the Client has more Users than those contracted.
"Renewal": means that the Client continues using the Products and Services contracted without indicating its express, authoritative intention not to renew them 30 days prior to the end of the effective period of the Software Use Licence and/or the Licence Plan contracted.
"Parties": means the Client and Captio jointly.
"Client": means the company or other legal entity that accepted this Agreement by creating the Order Form that it accepted and sent for this purpose.
"Subsidiary": means an entity that is directly or indirectly connected with or controlled by an organisation, normally larger. For purposes of this definition, "control" means direct or indirect ownership or control of more than 50% of the entity in question.
"Authorised Partner": means any of the distributors, resellers or other commercial partners of Captio authorised in writing by Captio to sell and/or integrate the Software.
“Personal Data”: means any information relating to an identified or identifiable natural person, in accordance with that set forth in article 4 of the GDPR, with respect to which the Customer is the Controller.
“Processor”: refers to the undertaking that processes the personal data on behalf of the Controller. For the purposes of this Agreement, Processor refers to the company Captio Tech S.L.
“Customer Information”: means any personal data or information stored in the files, databases or computer media of the Customer, as well as any procedure, documentation or user manuals, work methods and regulations, fully completed or under development; any commercial, financial, statistical, legal or technical information relative to the business or to the employees of the Customer; all the information relative to security (the domain names, media, processes, policies, procedures, measures, security resources, etc.) and, in general, any know-how or communication, stored in physical or magnetic media or verbally transmitted to Captio.
“Data Protection Laws and Regulations”: means all laws and regulations, including the regulations of the European Union, the European Economic Union and its Member States, applicable to the processing of personal data under this Agreement.
“Controller”: means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the means and purposes of the processing of the personal data.
“GDPR”: refers to Regulation (EU) 2016/679 of the European Parliament and of the Council, of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereinafter, “GDPR”).
“Processing”: is any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Two.- Scope of Liability
2.1. Captio shall a) implement the Products and Services available to the Client in conformity with this Agreement and according to the Order Form created by the Client; b) provide standard support applicable to the Services contracted by the Client, at no additional charge; c) make commercially reasonable efforts to provide services 24 hours a day 7 days a week, except in cases of: (i) updates or maintenance operations for the Software, announced to the Client at least 7 days in advance, (ii) any non-availability caused by situations of force majeure or acts of God, including but not limited, for example, to government actions, fire, flood, earthquake, civil unrest, terrorism, strikes (by persons not employees of Captio), failure or delay on the part of the Internet service provider.
2.2. The Parties, in exercise of their respective activities, shall be directly liable for compliance with the obligations incumbent upon them under the law. For these purposes, both Parties expressly declare that they will act at all times as independent Parties; this Agreement cannot be understood to create any other type of link, such as the establishment of a company of any kind or an association or alliance, or that there is any labour relationship, agency contract and/or distribution contract so that each of the Parties assumes all tax, labour, administrative or any other kind of obligation that may derive therefrom, in their entirety, expressly exempting the other Party.
Three.- Use of the service
3.1. The Software Use Licence is granted to the Client or its Subsidiaries on a non-exclusive, non-transferable basis and cannot be sublicenced, for use throughout the world and for a period of time equal to the duration of this Agreement, unless otherwise set up in the agreement for acquisition of Software with the Authorised Partner.
3.2. Without prejudice to the above, the right of use provided for in this Agreement for the Client will include the use of the Software Licence by those employees and collaborators duly authorised by the Client (the "Users") who have to use the Software within the specific framework of its relationship with Captio and the Client.
3.3. The Client's Products and Services shall be subject to limitations on use, in compliance with the specific amounts provided for in the Client's Order Form. Unless otherwise specified, the Client cannot use the Software for more than the number of Users provided in the Order Form or agreement for acquisition of Software with the Authorised Partner.; otherwise, these users will be considered “Unregularised Users" and will be billed for the amount reflected on the price list.
3.4. The Client will not perform or attempt to perform any of the following actions, nor will it allow a User or a third party to perform them within the framework of the Software Use License: i) decompile the Software, disassemble it or use reverse engineering techniques, nor create or recreate the source code of the Software; (ii) remove, erase, conceal or manipulate any copyright or any other identification or stamp, instruction label or notice of property rights of the product printed or stamped, affixed, encoded or recorded in any Software or Documentation, nor evade the preservation of all copyright notices and other proprietary notices on all copies of the Software and the Documentation it might make; (iii) lease, lend, sell, market, license, sublicense, distribute or otherwise grant any person or entity any right to use the Software, except to the extent expressly permitted in this Agreement; (iv) use the Software to supply, individually or in combination with other products or services, to any person or entity, either in exchange for a fee or in any other way; (v) modify, adapt, manipulate, translate or compile works derived from the Software or Documentation; (vi) combine or merge any part of the Software or the Documentation with other software or documentation, or resort to the Software or use it in any other way as part of a software development initiative (including, without limitation, any routines, scripts, codes or programs) with functional attributes, visual expressions or other functions similar to those of the Software or to compete with Captio; (vii) except with prior written permission from Captio, publish performance or benchmark tests or analyses related to the Software; (viii) use the Software or the Software platform to send any unsolicited or authorised advertising, promotional materials, unwanted emails, chain emails, spam to persons or lists of people who have not requested or given their consent in that sense; (ix) forge any email, Captio website, news, or in any way use the Software or the content of the Software to send misleading, false information; (x) interfere with or attempt to interfere with the access of any User to the Software, to the server or to the telecommunications network. By way of example without limitation, this includes sending a virus, overloading or sending spam mail, or; (ix) use the Software or the content of the Software platform for any purpose other than that of the Software, or for the benefit of any third party, or in any manner not permitted by these Terms and Conditions.
3.5 In the event that any of the above actions described in the previous section is performed or attempted, the service or the undue or fraudulent acts and activities being carried out may be blocked, with the consequent application of that provided in the Eleven clause.
Four.- Integration of Services
4.1 .Regardless of the technical assistance and maintenance services Captio renders for the Client, Captio, in conformity with the provisions of this Agreement, will undertake to render Integration Services for the Software in the Client's environment, unless said integration is performed by an Authorised Partner, in which case the Authorised Partner will be exclusively responsible for said integration services in the Client's environment.
4.2. Captio shall render to the Client the technical assistance or support and maintenance services in conformity with this Agreement, for the correct and diligent functioning of the Software.
4.3 .The Licence shall include maintenance service for the Software, which will include those corrective and development activities necessary for its proper functioning. In this sense, Captio agrees to make all updates to the Software available with error and bug correction for the Software as soon as it has them available.
4.4. At all times, Captio shall be responsible for the maintenance, functioning and security of the Software with its infrastructure, for which reason it agrees to adopt the technical and organizational measures necessary to guarantee such aspects.
4.5. Captio shall extend this Licence to the updates (updates/upgrades) available for the Software at any and all times.
Five.- Price and Terms of Payment for the Services
5.1.The Client will have to pay all amounts for the Products and Services contracted, as provided for in the Order Form or by the provisions of the agreement signed with the Authorised Partner. In this last case, the Client will be governed by the provisions of the agreement with the Partner regarding the price and the payment for the services. Unless otherwise agreed in this Agreement or the Order Form, (i) the rates are based on the Services and Products purchased by the Client and provided for in the Order Form and not on the real use by the Client or its Subsidiaries, except when the Client uses more Licenses than contracted for in the Order Form, in which case said use licenses will be billed as "Unregularised Users"; (ii) the Client's payment obligations cannot be cancelled and the rates paid for the Services cannot be refunded; (iii) the amounts purchased by the Client cannot be decreased during the minimum period corresponding to the subscription for the Licence.
5.2. The Client is obligated to provide us with valid, updated information on its credit card, bank account and/or any other document provided in the Order Form and accepted by Captio. The Client authorises Captio to collect the full amount for the Products and Services contracted, as shown in the Order Form, as well as for any extension or renewal of the Products and Services. Payment for the above-mentioned Products and Services shall be made in advance, either annually or monthly, as provided in the corresponding Order Form. Unless otherwise established in the Order Form, the charges billed to the Client (i) are due and payable at 60 days following the bill date in the first year of subscription, and 30 days for cases of extension and/or Renewal of the subscription for the Products and/or Services in cases of payment of the invoices by bank domiciliation; (ii) and on the bill date in the case of payment by credit card. The Client is responsible for providing truthful, complete and accurate billing and contact information and for reporting any change in said information.
5.3 The Client may extend and/or contract new Products and Services throughout the life of the contracted software licence. The cost of such Products and Services will correspond to the proportional part of the months still pending until the expiry of the contracted software licence unless specified otherwise in the Order Form.
5.4 If any amount billed by Captio to the Client remains unpaid by the latter at the due date of the invoice, without limitation on any right of or compensation to Captio, said amount shall be increased by the legal late-payment interest.
5.5. In exchange for the Services rendered under this Agreement, the Client is obligated to make all payments owed in good time. In case of non-compliance by the Client with the payment periods established, Captio may, seven business days after the expiration of the period, suspend the service and consider this Agreement voided automatically, and the amount for the Services actually rendered to such date shall be claimable.
5.6. Captio will not exercise its rights provided in Clauses 5.3 and 5.4 above if the Client demonstrates good faith in making the corresponding payment owed and diligently pays for the resolution of the dispute.
5.7. The amount for the contracted Services does not include taxes, levies, or similar fees of any nature (jointly known as the "taxes"). The Client is responsible for paying all taxes related to its purchases in accordance with this Agreement.
5.8. In the event of the Renewal of this Agreement, the amount of the Products and services contracted to Captio will be reviewed in general, and for each renewal period, in the same proportion that varies upwards, if applicable, the General Index of Consumer Prices (CPI), as published by the National Statistics Institute, or an organization that replaces it, for which purpose it will be compared with the CPI of the immediately prior month to the start date of each Renewal, with the CPI corresponding to that same month of the previous year. This price revision according to the CPI constitutes a mere update of the prices, and not a modification of them.
5.9. The Client agrees that the purchase of the Products and Services contracted does not involve the delivery of any new function or characteristic of the Software created by Captio with respect to future functions or characteristics of the Software.
5.10. If, due to specific circumstances, as an example and not limited thereto, changes or developments are made in the Products and Services rendered to the Client; a significant increase occurs in the traffic corresponding to the Client; or legislative or regulatory changes, among others, occur, the scope and amount of the service may be revised. If the above-mentioned increase occurs, this shall be reported to the Client with proof of the increase that occurred and 30 days in advance of the expiry of the Agreement and/or each of its extensions. Once the communication is received, if the Client decides not to continue using the Products and Services, it may proceed to discontinue them without any penalty whatsoever.
Six.- Intellectual and/or Industrial Property Rights
6.1. All industrial and/or intellectual property rights to the Software, as well as any extension, improvement or modification thereof, are the exclusive property of Captio; the Client will therefore abstain from using or registering in its name any patent, trademark or other distinguishing signs that Captio owns and cannot change, reproduce, distribute or publicly communicate the Software or make the same available to third parties, except as provided in this Agreement or in case it receives prior authorisation from Captio.
6.2. The Client may not directly or indirectly decrypt, decompile or derive the source code of any intellectual and/or industrial property owned by Captio to which it has access as a consequence of this Agreement, or reverse engineer the design and functions of the above-mentioned intellectual and/or industrial property. Similarly, the Client agrees, within the framework of contractual good faith, to rapidly and effectively report any violation or justified fear or violation by third parties of the Software that could affect the legitimate interests of Captio, of which the Client may become aware.
6.3.The Client shall retain all industrial and/or intellectual property rights it owns to the information and contents that it may store through the Software in the framework of the use thereof by reason of the contracted Use Licence. Consequently, by reason hereof, the Client does not transfer to Captio or any third party the ownership of any information, content, or any intellectual or industrial property right that it owns, nor does it grant a license or right of use thereto other than that provided herein, nor any of other type.
6.4. Captio shall indemnify the Client with respect to any complaint and/or proceedings against the Client by a third party for infringement of the intellectual property rights by our Software. And it shall indemnify it for any damages, attorney's fees or cost up to the limit of a total sum of the amounts paid by the Client to Captio in question in the last 12 months prior to the claim, provided that: a) the Client notifies Captio in writing of the claim by the third party against the Client, b) the Client grants us exclusive control of the defence and settlement of the claim, unless Captio cannot resolve any claim against the Client, and c) the Client cooperates at all times with the provision of documentation and the resolution of the claim.
Seven.- Limitation of Liability
7.1. Captio does not guarantee that the services rendered are useful for the execution of any particular activity other than the purpose established within this Agreement. Captio is absolved of any liability for damages and losses of any nature attributable to fraud due to the utility that the Client's authorised users, or the Client itself, may attribute to the contracted services, or the use of the content accessible via the Software.
7.2 Captio is not liable for the nature and type of information and contents stored by the Client. Nonetheless, and in compliance with the provisions of Arts. 11 and 16 de la LSSI-CE [Electronic Commerce Business Services Act], Captio makes itself available to all users, agencies and security forces, cooperating actively in the removal or, if applicable, blockage of any contents that could affect or violate national or international legislation, the rights of third parties or public order and morals. If applicable, the User who thinks that there is any content on the Web site that could be subject to this classification is asked to notify Captio immediately.
7.3. Captio does not guarantee that the Service will be of use for any specific activities. Captio will not be liable for damages of any nature that may arise from any fraudulent use that the users and/or Client may consider attributable to the Service and/or to the reliability and content of the Service.
7.4 Captio has no control over and offers no guarantees as to the veracity, validity, comprehensiveness and/or authenticity of the data provided by Clients or Users regarding themselves on the Software Platform. Captio will not be liable for damages of any nature caused by any inaccuracies regarding the Client's or User’s identity or the lack of veracity, validity and/or authenticity of the information provided by Clients regarding themselves and/or provided or made accessible to other users.
7.5 Captio will not be liable for damages of any nature caused by any undue access to and/or use of the Service by the Client or other Users breaching this Agreement.
7.6 Except in case of fraud, negligence, and wilful misconduct, the liability of any of the Parties shall not exceed 100% of the total amount of the Products and Services subscribed for by the Client in the 12 months immediately preceding the incident leading to the liability. Neither of the Parties shall be liable for the other or a third party for indirect, special, consequent or incidental damages, for direct or indirect damages or for resultant damages related to: a) loss of income, b) loss of opportunity, c) loss of profits; d) costs of recovery, including if the Party has been notified of such damages.
Eight.- Technical Support
8.1. The Captio Technical Support and Maintenance Terms apply if you have purchased the license of use the Captio Software. The Captio Technical Support and Maintenance Terms are incorporated by reference and can be found at http://www.captio.com/technical-support-and-maintenance-terms-and-conditions, with the exception of the disposition in the Master subscription Agreement with the Authorised Partner. After the support or service subscription period specified has expired, you have no further rights to receive any Support including Upgrades, Updates and telephone support.
9.1. Captio shall make the Software available to the Client “as is” without other implicit or implied warranty, or warranty of fitness for a particular purpose, against defects or errors, or in relation to its ability to be integrated into a given system, or in relation to the accuracy of the information contained therein, unless expressly covered in this Agreement, and the Client relies on the Software and the results exclusively under its own liability. Captio declines any liability for indirect, emerging or punitive damages and/or for loss of income due to the use of the Software by the User.
9.2. The above notwithstanding, Captio grants the User a warranty for a maximum of 90 days from the date of purchase, in the event that any defect or failures occurs in the Software such that it does not function properly. This warranty does not cover damage or defects deriving from the actions or omissions of the Client, the actions of a third party or events beyond the reasonable control of Captio.
9.3. If a defect or failure occurs and the Client duly and immediately notifies Captio thereof, Captio shall verify its functioning and if it detects failures or defects, it shall repair or replace the Licence acquired by the User free of charge. If, in Captio's opinion, it cannot be repaired or replaced, Captio shall refund the amount paid by the Client, depending on the amount reflected on the Order Form or invoice paid for the Software after receipt by Captio of its declaration and commitment in writing that it has deleted all copies of the Software and will not use the Software. It must uninstall the Software and return any support medium and other associated materials (such as printed documentation) to Captio with proof of purchase to obtain the refund.
9.4. The above is the sole warranty of any type, whether express or implied. Captio excludes implied warranties of merchantability and fitness for a particular purpose or non-infringement. This warranty grants you specific legal rights and you may also have other rights that vary with the state or country.
9.5. THE ABOVE WARRANTY DOES NOT APPLY IF: (i) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT OR IN THE DOCUMENTATION; (ii) ANY ENTITY OTHER THAN CAPTIO MODIFIES THE SOFTWARE OR PART THEREOF, OR (iii) IF AN OPERATING ERROR OCCURS IN THE SOFTWARE CAUSED BY A DEVICE OR SOFTWARE PRODUCT NOT SUPPLIED BY CAPTIO.
Ten. - Security, confidentiality, processor and data protection
To ensure private and confidential access, the Client is provided with a secret login and password. It is essential that these access data be changed by the Client to other completely confidential data on the first access. From the time Captio delivers the access information, the Client is responsible for maintaining it with the maximum diligence and for keeping it secret for an indefinite period of time.
In this case, the Client is liable for all damages that may occur to it, to third parties or to Captio deriving from its lack of secrecy with regard to the access data.
The Parties acknowledge a mutual duty of secrecy and confidentiality and non-diffusion in relation to information of a confidential nature obtained from the other party or its employees. In any event, it shall have to consider confidential this Agreement and its Annexes, as well as any documentation or information that the parties might exchange as a consequence of the relationship they maintain until the end of the Agreement.
For purposes of this Clause, the expressions "Issuer" and "Receiver" respectively mean the party that provides and the party that receives confidential information.
Any information, regardless of its nature (whether technical, commercial, financial, operational or other), in any form or on any support (whether oral, written, recorded or in any other form) that might be provided by the Issuer to the Receiver in relation to the purpose of this Agreement shall be considered "Confidential Information", including in this category information that may be generated from the Confidential Information.
The Receiver agrees to accept the Confidential Information within a framework of confidentiality and not to provide it to any third party or to use it for its own benefit without obtaining the prior written consent of the Issuer. The Receiver further agrees:
- Not to diffuse, lend, confer, sell, lease or disclose Confidential Information received from the Issuer.
- Not to diffuse, orally or in writing, or by means of any computer support, any relevant or secret knowledge or news from the Issuer of which it becomes aware during the direct or indirect relationship therewith.
- To treat the Confidential Information strictly confidentially;
- To use the Confidential Information exclusively for purposes of this Agreement.
- To use and file the Confidential Information with control or protection procedures at least as strict as those that the Issuer has established for the use and filing of its own Confidential Information. The Receive shall not make any copies of the Confidential Information without the prior written consent of the Issuer.
- To restrict access to the Confidential Information solely to those of its employees that need to know it for purposes of the Agreement and to ensure that said employees know the resultant obligations applicable to them by reason of the provisions of this Agreement; and
- Not to provide Confidential Information to any third party without the prior written consent of the Issuer, and to ensure that, if such authorisation is obtained, said third party signs a confidentiality agreement with the Issuer in terms equivalent to those in this clause.
At the simple request and option of the Issuer, the Receiver shall proceed to destroy or return to the Issuer any Confidential Information, whether written, recorded or on any other support where it could be gathered. The destruction or return of the Confidential Information shall not relieve the Receiver of its obligation to treat said Confidential Information strictly confidentially during the term of the Agreement; said confidentiality obligation subsists once the contractual relationship between the two ends, and only for a period for five (5) years.
The restrictions related to the use, reproduction, transmission of or access to the Confidential Information referred to in this Clause shall not apply in cases where the information:
- After having been provided as Confidential Information, it becomes publicly accessible without any non-compliance with the Clause having intervened in such circumstance; or
- It is legally in the possession of the Receiver at the time at which it was provided by the Issuer, or it was obtained by the former independently and prior to it having been provided by the Issuer, provided that there was no type of restriction or confidentiality clause previously established.
- That it must mandatorily be provided by reason of a legal provision or by a resolution validly issued by any competent administrative authority, court or jurisdictional organ legally empowered to mandate such availability, provided the Receiver thus requested immediately notifies the Issuer of the receipt of such request so that the Issuer can evaluate whether there is a possibility of eluding the same or whether it can provide any support reasonably requested by the Receiver.
The Receiver shall answer to the Issuer for any direct damages deriving from non-compliance with any obligations arising from this Clause.
The obligations established in this clause bind the Receiver and its respective successors-at-law in the respective activities, including any legal person resulting from a merger, acquisition or any other restructuring that the Receiver might undergo.
The Receiver shall remain bound by the provisions of this Clause after the end of the Agreement for an indefinite period; this rule also applies to the Confidential Information that may have been provided prior to the signature hereof.
10.3. Processor and data protection
The use of the software, whether as a data processor or sub-processor, implies a legal relationship and obligations that are described below (throughout the text references made to the data processor shall apply equally to any party acting as sub-processor). In the course of providing the services associated with the products and services contracted by the client, Captio shall be considered the data processor with regard to the client, pursuant to Article 28 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, the GDPR, the client being considered the controller of said personal data.
Captio shall process the personal data on behalf of the client in order to provide the services contracted pursuant to the agreement throughout the term of the agreement, except where otherwise provided for in writing by the parties.
This data processor clause applies exclusively to the services that Captio performs directly in the provision of the services contracted under the agreement. If the client has signed the corresponding Software User Licence Agreement with a Captio Authorised Partner and this agreement includes the provision of additional services and/or functions to be provided by the Authorised Partner, where these additional services require the client's personal data to be processed, the client shall sign an independent data processing agreement with that Authorised Partner that includes the data processing activities associated with these additional services. This clause is not valid or legally binding for the processing of such personal data linked to these additional services, unless expressly agreed to the contrary between Captio and the client.
A) Processing of the client’s data
As the data controller, the client shall afford Captio access to personal data pursuant to the requirements of data protection law and regulations, as well as any instructions required for the fulfilment of its obligations as data processor. Similarly, the client shall be solely responsible for the accuracy, quality and legality of the personal data, and the means by which the client has acquired the personal data.
The client’s personal data may consist of:
- Identification details concerning employees (name, surname(s), National Identification Document number and corporate email address).
- Professional data on the employees authorised to use the service.
- Information on transactions involving goods and services undertaken by the client.
- Data on the providers of these transactions.
- Economic and financial information, solely where the modules involving the processing of such data (BIC/IBAN and/or bank reconciliation module, among others) are contracted.
The purpose of the processing of personal data by Captio is the provision of the services pursuant to this agreement. Captio shall process the personal data as confidential information and shall process personal data solely on the client’s behalf, pursuant to the client’s documented instructions, for the following purposes: (i) Processing pursuant to the agreement and all applicable order forms and (ii) Processing to comply with other reasonable documented instructions provided by the client, where said instructions are consistent with the terms of the agreement.
As the data processor, Captio undertakes to:
- Process and store with the strictest privacy and confidentiality all such information and personal data as the client may provide or deliver by any means, as well as any information of which it becomes aware or to which it has access as a result of providing the services contracted. Additionally, it shall observe and maintain the strictest secrecy and absolute confidentiality with respect to such information as it may access.
- Use the information and personal data that are to be processed exclusively for the purposes constituting the object of the provision of services and the commission to process data derived from it. In no case shall it be allowed to use this data in the activity that it carries out for other undertakings or entities or for its own purposes.
- To process the information pursuant to the client’s instructions. If Captio believes that any of the instructions infringe Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the GDPR), or any other provision regarding the protection of data in the European Union, or its Member States, it shall immediately inform the client.
- Not to reproduce, communicate, transfer, disclose or transmit, in whole or in part, the information or personal data to persons or entities whose intervention is not strictly necessary for the provision of services or for purposes other than those envisaged herein without the client’s written authorisation or instruction, except where Captio is obliged to do so by legislative provisions currently in force. In this latter case, Captio undertakes to inform the client in advance of the identity of the applicant and of the information requested. If Captio is compelled to transfer personal data to a third country or an international organisation pursuant to European Union law or applicable Member State law, it shall inform the client of this legal requirement in advance, unless the law in question prohibits this notification for important reasons of public interest. These obligatory notices shall be made through the channels established for that purpose, for example through the subcontracting information/authorisation mechanisms referred to in Point Nine (9) of this clause.
- Cooperate with the client in the exercising of rights by data subjects (access, modification, erasure, objection, restriction of processing, portability of the data, and not being subject to decisions based solely on automated processing) insofar as personal data is processed on behalf of the client to execute the services contracted and depending on what is technically possible.
- When required to do so by the GDPR, Captio shall keep written records of all categories of processing activities conducted on the client's behalf that contain: (i) the name and contact details of Captio, as well as the data of other processors, where applicable, and of each client on behalf of which Captio acts, as well as that of the data protection officer; (ii) the processing categories carried out on behalf of the client and (iii) in the event of transfers of personal data to a third country or an international organisation, the identification of that third country or international organisation and, in the case of transfers referred to in the second sub-paragraph of Article 49(1) of the GDPR, the documentation of suitable safeguards to perform said transfer.
- To provide information at all times as to where the information and personal data contained in any medium or format may be found. This notification will be made, among other possible means, as set forth in the mechanisms established in Point Number Nine (9) of this clause.
- Captio may not subcontract in whole or in part any of the services of the list of services to the client that imply the processing of personal data regulated herein (sub-processors), without applying the mechanism provided in Point Nine (9) of this clause. Once authorised through the mechanism described therein, Captio shall impose at least the same obligations as those stipulated here in relation to data processing on said entities. The client grants general authorisation for all subcontracting carried out pursuant to said mechanism and such as is already indicated in the aforesaid list at the time of accepting the service.
- To provide the list of subcontractors that involve processing of personal data regulated in this document (sub-processors). To this end, Captio will provide a list in which it will be possible to consult: the subcontractor company (which will be clearly and unequivocally identified), the service offered and whether this involves an international transfer of personal data. Captio shall also allow all its clients to register with the aim of notifying the listing changes seven (7) days in advance in order that they may oppose them (without prejudice to the list’s logical updating). You may register for and consult this list at the following link: click here.
- Captio shall be responsible for the acts and omissions of its sub-processors to the same extent that Captio would be responsible if it were directly to carry out the services of each Sub-processor pursuant to the terms of this Clause, unless otherwise established in the agreement.
- Captio shall implement the necessary mechanisms in order to: (i) ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (ii) restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; (iii) regularly test, assess and evaluate the effectiveness of the technical and organisational measures implemented to ensure the security of the processing and (iv) pseudonymise and encrypt personal data where applicable.
- Captio shall apply adequate technical and organisational measures to protect security (including protection against unauthorised or unlawful processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorised disclosure or access to the client’s data) and the confidentiality and integrity thereof.
- The client may at any time verify compliance with the security measures and controls required pursuant to this agreement, with regard to information and communication systems, files etc, as well as the procedures supporting the services provided, upon prior written request, in this case addressed to Captio, giving advance notice of at least five (5) business days.
- Captio shall notify the client by email and without undue delay of any security breaches that affect or might affect the rights and freedoms of natural persons whose personal data are processed on behalf of the client, together with all the relevant information for documenting and reporting the incident pursuant to the provisions of Article 34.1 of the GDPR. The above detailed notification will not be necessary where it is unlikely that the security breach will result a risk to the rights and freedoms of natural persons.
- Captio shall make all reasonable efforts to identify the cause of any such client Data Incident, taking such steps as it may deem necessary and reasonable to remedy said cause insofar as such a remedy is within its reasonable control. The obligations deriving from this agreement shall not apply to incidents caused by the client or the client’s users.
B) Conclusion of the services
Once the provision of the service covered by this agreement has been completed, Captio undertakes to destroy any information containing personal data that has been provided by the client for the purpose of its providing the service. Without prejudice to the foregoing, Captio may store any data that it is legally compelled to store, and solely for the period of time and for the purposes established by law.
Where possible, Captio will cooperate in the transfer of knowledge relating to the services, in order to ensure their correct completion, ensuring that any information, data, procedures or documents required are appropriately delivered.
Eleven. - Corporate image
11.1 By accepting this Agreement, Captio reserves the right to issue a press release and use the client’s name and logo externally for marketing and promotional purposes. The content of the press release and the conditions of use thereof will be decided with the prior mutual consent of the client.
11.2 Captio may also carry out satisfaction surveys among its clients to gather information on experiences with our product. The Client undertakes to participate to the extent possible in completing these surveys, and accepts that these may be used by Captio for marketing and promotional purposes.
Twelve. - End of the Agreement
12.1. This Agreement starts on the date on which the Client accepts it for the first time and continues in effect until the subscriptions to the Software Use Licenses expire or are terminated.
12.2. The effective period for each Licence is one year (1 year) counting from the date of issuance of the corresponding invoice, unless otherwise stipulated in the Client Order Form or in the agreement signed with an Authorised Partner. The subscription to the Licence renews automatically annually, unless either of the Parties asserts, authoritatively and in writing, the intention not to renew, at least 30 days in advance of the termination period for the effective period for the License and/or the License Plan contracted.
12.3 Should new Products and Services be contracted during the life of the contracted software licence, the period of validity of the new Products and Services will correspond to the one still pending until the date on which the contracted software licence expires. Notwithstanding the above, if the remaining term is equal or less than three (3) months, said Products and Services will have a mandatory period of validity for the Client of twelve (12) months plus whatever period remains pending, with their automatic renewal on the licence’s date of renewal.
12.4 Unless otherwise stipulated in the Order Form, the prices applicable to the Renewal of the Products and Services shall be governed by the price list in effect at the time of Renewal. Without prejudice to the above, for any Renewal in which the volume of Licenses decreases or increases, the amount of the Renewal shall be recalculated.
12.5. Either of the Parties shall have the right to rescind this Agreement authoritatively and immediately, in writing, in the following cases: i) Mutual agreement of the Parties; ii) Termination of the term of the Products and Services contracted; iii) When either of the Parties does not comply with any of the obligations established in this Agreement and said non-compliance is not rectified within thirty (30) days following its announcement in writing, with the non-complying party being obligated to make amends for the damages caused; vi) Cause of dissolution of the agreement with the provisions in Article 360 of the Amended Text of the Corporations Act approved by Royal Legislative Decree 1/2010 dated 2 July; v) provided that the legal regulations permit it, when an administrative or judicial enquiry is initiated against this Party that could prevent it from rendering the Services or the compensation agreed upon in this Agreement, in which case the affected Party shall have to inform the other of the occurrence of the cause of the rescission within the shortest possible period after it becomes aware of the enquiry; vi) When the falsification of the data and documents provided by the Parties that served as the basis for the execution of this Agreement or the billing of the price thereof becomes apparent; vii) case of force majeure (as defined in Article 1.105 of the Spanish Civil Code) that extends for a period of more than sixty (60) days.
12.6 Once this Agreement is finished for any cause, the Client shall be obligated to pay the unpaid amounts pending payment corresponding to the contract Captio’s Products and Services. In no case shall the termination of the Contract exempt the Client from its obligation to pay the amount pending on subscriptions prior to the termination date.
12.7. At the request of the Client, Captio is obligated to make available all Client Data stored in the Software within thirty (30) days following the date of termination of this Agreement. Once the information requested by the Client is made available and after a period of thirty (30) days following the termination of the Agreement, Captio shall not be obligated to maintain or provide Client Data and, as indicated in Clause 10.3, Captio shall proceed to delete and destroy all Data on our systems, unless otherwise stipulated by law.
Thirteen.- Assignment and Subcontracting
13.1. The Client agrees not to assign, in whole or in part, the obligations and rights deriving from this Agreement nor to carry out any other operation that entails disposing by any means, encumbering, pledging and/or transacting, in whole or part, of the above-mentioned rights and obligations, unless prior written authorisation has been obtained from Captio.
Captio will collaborate as far as possible, in the transfer of knowledge regarding the Services, in order to ensure its correct completion, ensuring, where appropriate, the appropriate delivery of information, data, procedures or documents.
Fourteen. - Miscellaneous
14.1. Independence of the Parties
The Parties expressly declare that they are acting with complete independence between them for the conduct of their own business and activities. Nothing agreed in this Agreement can be construed to create a labour, agency, commission, distribution, association or joint venture relationship.
14.2. Partial Validity
If, by court order or order of any other nature, any of the clauses of this Agreement are declared void or invalid or ineffective, in whole or in part, said invalidity or ineffectiveness shall not extend to the remainder of the clauses provided here, and they shall remain in force and fully effective.
The Parties agree to replace any clause that may become invalid or ineffective with another valid and effective clause, endeavouring for the latter to be as similar as possible to the former.
Waiving the requirement to comply with any obligation or condition of this Agreement shall not constitute a renunciation or ongoing renunciation of the requirement to comply with any other obligation or condition, even if of the same nature. Failure or delay on the part of either of the Parties to exercise any right, faculty or privilege by virtue of this Agreement shall not be deemed to be a renunciation thereof ,and the occasional or partial exercise by either of the parties of a right, faculty or privilege shall not prevent the subsequent exercise thereof, nor of any other right, faculty or privilege.
Fifteen. - Notifications
15.1 Any notification or communication to be made by reason of this Agreement shall be carried out by the Parties, unless otherwise agreed herein, in writing and sent to the address indicated as the company domicile of the Client, to the attention of the contact provided on the Order Form. For the aspects related to billing for the Products and Services, the notifications shall be sent to the billing contact designated by the Client on the Order Form.
For any change in domicile for notifications to take effect between the Parties, it must be sent to the other Party at least ten (10) days in advance by one of the means provided for the presentation of notifications.
Sixteen.- Applicable Law and Jurisdiction
16.1. The law applicable to this Agreement is Spanish law. Unless otherwise expressly stipulated in the clauses and annexes, the Agreement shall be governed by the Spanish Civil Code and further by the other provisions of Spanish common Law in effect at any time.
16.2. Similarly, the Parties undertake to interpret and perform this Agreement in accordance with the principles of equity and good faith, resolving any dispute that may arise between the regarding the application, implementation, compliance, interpretation and performance hereof by means of negotiations and amicable settlements.
Failing the above, the Parties agree to submit any dispute, discrepancy or disagreement related to the Agreement or deriving therefrom exclusively to the Courts and Tribunals of the City of Barcelona, renouncing their own forum.
Last update: 14/05/2021