1.1 “Lavola 1981, S.A.U.”, the holder of Tax ID Code (CIF) A58635269, with registered address at Avenida Roma, 252-254, 08560 Manlleu, e-mail address email@example.com, registered in Barcelona Company Register (General Section) under Entry 27 on Page 158,397 of Folio 168 in Volume 42,724 (hereinafter, the “Company”), is a company that forms part of the Anthesis Group. “Anthesis Lavola” (trade name) or “Lavola 1981, S.A.U.” (corporation name), indistinctly, are a business group, corporation, called «Anthesis Group», which is comprised of companies specialising in sustainability solutions and services, based in different countries around the world. The purpose of this document (hereinafter, the “General Terms and Conditions” or “Terms and Conditions”) is to define the terms and conditions under which Anthesis Lavola shall provide the service(s) to the Client(s) who have previously signed and accepted an offer or project proposal put forward by Anthesis Lavola (hereinafter, the “Contract”). The Contract shall be formed when the Company receives the signed Proposal from the Client. The Company shall supply the Services and the Client shall acquire them in accordance with the terms specified in the Proposal and in these Terms and Conditions.
1.2 The rest of the definitions can be found in Annex A at the end of these Terms and Conditions.
2. Application of the General Terms and Conditions
2.1 These General Terms and Conditions apply to and form part of the Contract between the Company and the Client.
2.2 Any modifications made to these Terms and Conditions, or to a Proposal or the Contract, shall only be binding if they are expressly agreed in writing and approved by a duly authorised signatory on behalf of the Company.
2.3 The Proposal presented by the Company to the Client shall constitute an offer to provide the Services in accordance with these Terms and Conditions. The Proposal shall remain valid and may be accepted by the Client during a period of 30 days, beginning on the date on which the Company presents said Proposal; after this period, the Proposal shall automatically expire. However, in the case of services offered by the Company in relation to the offsetting of credits, the Proposal shall only remain valid and may only be accepted by the Client during a period of seven days, owing to the nature of said credits.
2.4 A Proposal may be unilaterally cancelled (including any communications that may accompany said cancellation), withdrawn, or modified by the Company at any time prior to receiving the Accepted Proposal from the Client.
2.5 If either of the parties wishes to modify any of the terms of the Proposal, the changes requested must be set down in writing in the minutes of the corresponding meeting between the Company and the Client. The changes shall be considered accepted if neither party opposes them in writing within a maximum of five working days from the date on which the minutes are shared. If the changes affect the Price, a new Proposal shall need to be presented.
2.6 When the Client signs the Proposal, this signifies that the Client agrees to the Services that are to be provided by the Company, the estimated time frame for the provision of the Services, the Specification of any End Products (where applicable) and the Price to be paid by the Client as specified in the Proposal and in accordance with these Terms and Conditions. The Client acknowledges and accepts that none of the Services shall be provided until the Company has received the signed copy of the Proposal.
2.7 The Services shall be provided by the Company pursuant to the purposes specified in the Proposal and for the sole benefit and use of the Client. Unless the parties agree otherwise in writing, no person other than the Client may make use of any reports or other communications, whether written or otherwise, that are issued by the Company in relation to the Services.
2.8 Any spelling or punctuation mistakes, administrative errors, omissions or other types of error on the Company’s website or in any of its advertisements, estimates, price lists, invoices or any other documents or information issued by the Company may be corrected by same without incurring any liability in relation. Any marketing materials and other promotional materials related to the Services are for illustration purposes only and shall not form part of the Contract.
3.1 The Price that the Company shall charge in exchange for the Services shall be as specified in the Contract or the Proposal. In the absence of a written agreement, 30% of the Price shall be invoiced upon formalisation of the Contract and the rest invoiced monthly and in arrears, subsequent to the date of the Contract. Moreover, the Client shall pay the Company the applicable VAT, when it receives an invoice that is subject to VAT.
3.2 The terms and method of payment, as well as the billing data, the system, and the address, will be the usual ones, that is, those on the customer card.
3.3 The prices of the products detailed in this budget will increase annually according to the CPI.
3.4 In case of choosing the direct debit as payment method, the customer authorizes Lavola 1981 to present receipts for payment of invoices related to the mentioned services.
3.5 When the Price includes costs that are incurred in currencies other than the euro, these shall be calculated in reference to the monthly exchange rates published on http://www.oanda.com (mid rates).
3.6 Unless the Contract specifies otherwise, the Client must pay the Company the amount invoiced, in euros and in its entirety, without any deductions or offsetting, within a period of thirty (30) days of the invoice date and by means of direct debit or bank transfer to the account designated by the Company. Under all circumstances, the Client must pay the total amount specified in the invoice and may not withhold any portion of the invoiced amounts in order to offset, in full or in part, any claims that it may have made against the Company. Under no circumstances shall a delay by the Company in issuing one or more invoices be interpreted as a waiver on the part of the Company of its intent to collect payment for same; consequently, such invoices must be paid by the Client within the period stipulated above.
3.7 Failure to pay or late payment of the invoices shall entitle the Company to claim the total amount of the invoices, in accordance with the provisions of the legislation in force (Law 3/2004 of 29 December and its respective modifications establishing measures to combat delinquency in commercial transactions).
3.8 All of the provisions of the above paragraph shall be understood as notwithstanding the Company’s right to temporarily or permanently suspend the provision of the Services, in the event of which it shall only be required to inform the Client 14 days before the effective suspension of same. When said suspension is temporary, it shall not be lifted until the Company receives full payment of the amount of the unpaid invoices, along with any increases that may be applied to the amount in question as a result of financial expenses. If the Services are suspended temporarily or permanently owing to any of the causes mentioned above, the Company shall be released from all obligations arising from the Contract or Proposal, and the Client shall not be entitled to make any claims in relation. The foregoing shall apply notwithstanding the Company’s right to take any legal actions it may deem appropriate in order to claim the amounts that are owed to it and any damages that the situation in question may have caused it to suffer.
4. Execution of the Services
4.1 The Proposal must specify whether the Services are to be:
a) Provided in the Location on the date(s) specified in the Proposal; or
b) Provided in an alternative location specified in the Proposal (where applicable). The Client shall make said locations available to the Company so that the latter can provide the Services within the period stipulated in the Proposal.
4.2 The Services shall be considered duly executed once the provision thereof has been completed in accordance with the stipulations of the Proposal.
4.3 The Company may provide the Services in parts. Any delays in execution or defects in any particular part shall not entitle the Client to cancel any other parts, unless the Proposal specifies otherwise.
4.4 The execution period for the Services shall only be a guideline. The Company shall make every effort to comply with the estimated execution dates; however, these dates are only approximate.
4.5 Pursuant to the Company’s environmental policy, Project documentation shall be provided in digital format. However, within the scope of the provision of the Services, and unless stipulated otherwise in the agreements and specific terms and conditions, this estimate may include the provision of up to two copies of the documentation, printed on both sides, if the Client expressly requests it.
4.6 The Company shall not be liable for any delays or breaches caused by a failure on the part of the Client to:
a) Make the Location available;
b) Prepare the Location as required for the provision of the Services;
c) Provide the Company with the necessary information or adequate instructions to execute the Services or related thereto; or
d) In cases of force majeure.
4.7 The Client acknowledges and accepts that in order for the Company to be able to provide the Services, the Client must:
a) Provide the Company with the information, software, materials, documentation, resources, facilities and/or access to the Location that the Company may reasonably require, within a reasonable time frame;
b) Cooperate with the Company to the extent reasonably required by same; and
c) Instruct its employees and agents to cooperate with and assist the Company as swiftly as possible.
5.1 The Company guarantees that upon delivery (or redelivery, where applicable), the following shall apply:
a) The Services shall meet the Specification, in all material aspects; and
b) The Company is not aware of any ways in which the Services may infringe the intellectual or industrial property rights of any third parties.
5.2 The Client guarantees that it has provided the Company with all of the relevant, complete and precise information regarding the Client’s business and needs that the Company may require in order to provide the Services.
5.3 Except for the provisions of Clause 5.1:
a) The Company shall not offer any guarantees or make any form of declaration with regard to the Services;
b) The Company shall not be held liable for any failure on its part to fulfil the guarantee specified in Clause 5.1; and
c) All guarantees and conditions, whether express or implied by law, common law or by some other means, shall be excluded in the extent permitted by law.
5.4 The Company must elect to correct, re-perform or reimburse any Services that do not comply with the corresponding material aspects described or stipulated in the Proposal and/or Contract, provided that the Client has notified the Company of such in writing no later than five working days after delivery, and provided said notification states that all or some of the Services do not comply and specifies, in sufficient detail, the nature and scope of the defect(s) in question; and provided that the Client gives the Company a reasonable opportunity to analyse the claim that is made in relation to the defective Services. The provisions of these Terms and Conditions shall also apply to those Services that are corrected or re-performed, and shall enter into effect upon the execution of said Services.
6. Regulatory compliance
6.1 Both parties declare that none of their employees, directors, agents or subcontractors, nor any of their subsidiaries or the employees, directors, agents or subcontractors thereof, have been the subject of an investigation (formal or informal), penalty or sentence resulting from: a failure to comply with Spanish or international regulations to prevent money laundering and combat terrorism; violations of human rights and/or international security; human trafficking; or corruption and/or fraud, and that none of the aforementioned parties are included on any of the corresponding exclusion lists. Likewise, the Client declares that it is not owned or controlled by any natural or legal persons to whom the aforementioned circumstances apply.
6.2 The Client undertakes to apply all reasonable measures to ensure that it, its subsidiaries and their respective employees, directors, agents and subcontractors comply with the aforementioned regulations and to ensure that neither the services provided by the Company nor the Company’s employees shall be affected by any activities that may violate said regulations. The Client also undertakes to ensure that it implements suitable procedures to prevent bribery and that it shall make every effort to guarantee such prevention.
6.3 The Client guarantees that it shall not transfer any funds to the Company that are derived from business operations, activities and/or transactions with third parties who are subject to sanctions by virtue of the aforementioned regulations, or which are derived from any activity that violates said regulations.
7. Breach of contract
7.1 Failure on the part of the Client to fulfil any of the obligations it has assumed by signing the Contract or Proposal shall entitle the Company to commence the early termination of same once 14 days have passed since the initial failure. In such cases, the Company need only inform the Client of such in writing. The Company may give the Client an opportunity to correct or otherwise remedy the breach, provided that this is possible and that the Company chooses to do so. If, however, the Contract is terminated for the foregoing reason, the Company shall be released from any and all obligations derived therefrom and the Client shall not be entitled to file any claims in relation, notwithstanding the right of the Company to claim any amounts that may be owed for work carried out.
7.2 Furthermore, the Company may terminate the Contract at any time, by providing the Client with the corresponding written notification, in the event that:
a) The Client has not paid any of the amounts it owes under the Contract by the due date;
b) Any of the Client’s permits, licences or authorisations are revoked or modified in such a way that prevents it from fulfilling its obligations under the Contract or receiving any benefits to which it may be entitled;
c) The Client ceases all or a major part of its activity or indicates in some way that it intends to do so;
d) The Client undergoes a change of control or there is a reasonable expectation that it will undergo a change of control within the next two months, and that it will become a competitor of the Company as a result;
e) The Client is incapable of paying its debts or the Company reasonably believes that it is incapable;
f) The Client is the subject of compulsory or voluntary insolvency proceedings as a result of the continuation or cessation of business activity in accordance with the Insolvency Act (Ley Concursal);
g) The Client has submitted a request to the competent commercial court pursuant to voluntary insolvency proceedings as a result of the continuation or cessation of business activity in accordance with the Insolvency Act;
h) The Client has had a request for preventive lien filed against it;
i) The Client is subject to any situations or circumstances that are analogous to those described in Clause 7.2.c), in any jurisdiction; or
j) The Client adopts any measures in anticipation of any of the circumstances or procedures described in the foregoing clauses or has no realistic likelihood of preventing them, including the announcement of any form of creditors’ meeting, the presentation of a request or any type of notification in court, the receipt of any demand for reimbursement of credit facilities granted, or the adoption of any agreement on the part of the board of directors that would authorise the adoption of any measure to commence insolvency proceedings.
7.3 The Client shall indemnify the Company and hold it harmless in relation to any direct losses, damage, liability, costs (including legal fees) and expenses that the Company may incur as a consequence of or in relation to the Client’s failure to fulfil any of its obligations under the Contract.
7.4 The Company shall take out and keep up to date a suitable insurance policy for professional liability, in order to cover its liabilities under this Contract.
8. Settlement of disputes
8.1 The process of settling disputes shall be subordinate to Clause 7 above, which shall take precedence over this Clause. Notwithstanding the foregoing, the process of settling a dispute may be instigated at any time by either of the parties, who must notify the other in writing that a dispute has arisen. Said notification must provide reasonable information on the nature of the dispute.
8.2 The parties shall make all reasonable efforts to reach a negotiated settlement, in accordance with the following procedures:
a) Within 14 days following the notification, the parties’ project managers shall meet in order to discuss the dispute and attempt to resolve it;
b) If the dispute has not been resolved in the 14 days following the first meeting of the project managers, the matter shall be referred to the directors (or persons of equivalent seniority). The directors (or persons of equivalent seniority) shall then meet within a period of 14 days in order to discuss the dispute and attempt to resolve it. If necessary, this point b) may be left to the reasonable discretion of the parties; however, it may include the preparation and presentation of statements of fact or position.
c) If the dispute has not been resolved in the 14 days following the first meeting of the directors (or their equivalents) as per point b) above, the matter shall be submitted for mediation in accordance with Law 5/2012 of 6 July on mediation in civil and commercial matters, unless either of the parties is requesting a provisional remedy; in which case, the matter shall be subject to the jurisdiction of the corresponding courts and tribunals.
8.3 The parties may only instigate mediation if they have completed the steps specified in Clause 8 and the dispute still remains unresolved; however, either party may, at any time, request a provisional remedy from the courts, or an arbitration measure.
9. Limitation of liability
9.1 The total amount for which the Company may be held liable by the Client for the sum of all individual damage (and consequently for all such damage caused by the Company as a consequence of the provision of the Services that constitute the purpose of the Contract) shall under no circumstances exceed the total amounts paid by the Client to the Company by virtue of said Contract.
9.2 Moreover, a maximum limit of 1 million euros shall be set, with payment contingent upon the fulfilment of the requirements stipulated in the insurance policy. The insurance policy taken out by the Company covers it against errors and omissions and general liability for its personnel up to 1 million euros for financial losses, and the same amount for bodily injuries and damage to property. Furthermore, the Company’s total liability for any cause, whether contractual or the result of negligence, breach of legal obligations or in any other way related to the provision of all of the Services, shall not exceed 1 million euros. The Company shall not be held liable for any consequential losses that may be incurred by the Client.
9.3 Under no circumstances shall the Company be held liable by the Client for:
a) Consequential and indirect damage of any kind, regardless of where and when it occurs;
b) Damage related to loss of income, interest, benefits, business, opportunities, data (except in the event of violation of data protection laws), use, production, contracting, savings, discounts or reductions (whether actual or forecast), commercial reputation in the market, etc.
c) Outcomes or Products of the Services that are of an evolving nature or form part of a research project.
9.4 The Client must notify the Company in writing, within seven calendar days following the date on which the event causing the damage occurred, of any claims that the Client intends to make against the Company for any damage suffered as a result of the performance of the Contract. Failure to provide this written notification within said period shall imply that the Client has definitively waived its right to make a claim against the Company for the damage in question.
10. Intellectual property
10.1 General considerations with regard to intellectual property:
10.2 The Client acknowledges and accepts that all of the industrial and intellectual property rights over the materials and/or any other components made or created as a result of the provision of the Services shall belong exclusively to the Company, without any time limits. Upon payment of the amounts specified in the estimate, the Client may use the materials delivered to it by the Company (e.g. texts, images, graphics, designs) for the purposes or projects specified in the estimate. It may reproduce, distribute and publicly communicate (in the sense described in Articles 18-20 of the revised text of the Intellectual Property Act – Ley de Propiedad Intelectual) the materials without temporal or geographical restriction. However, it may not authorise third parties to use the materials, or use them for other purposes, without prior written authorisation from the Company. The authorised uses for the Client shall not include the transformation of graphical elements, logos, designs, images or other materials of an artistic nature. The final artwork for the communication documents shall be delivered in standard formats (JPG, PDF, etc.).
10.3 The Company shall indemnify the Client for any losses, damage, liability, costs or expenses (including reasonable professional fees) that are incurred as a result of any legal actions, demands or claim of the Intellectual Property Rights derived from the provision of the Services, or the use of any materials supplied following the provision of the Services, or that infringes the Intellectual Property Rights of any third party («IPR claim»), provided that is ruled by a final judgement . However, the Company shall be exempt from said liability in the event that the Client:
a) Fails to provide the Company with a written notification specifying the full details of any IPR claim it may learn of, as soon as reasonably possible;
b) Fails to admit liability or reaches an agreement or commitment in relation to said IPR claim without the prior written consent of the Company;
c) Does not allow the Company, at the latter’s request and expense, to conduct or resolve all of the negotiations and litigation arising from the IPR claim, at its full discretion;
d) Fails to adopt all of the reasonable measures to minimise the losses that it or any third parties may incur as a result of the IPR claim; or
e) Fails to provide the Company, at the Company’s request, with all reasonable assistance in relation to the IPR claim (at the Client’s expense), including the provision of rapid access to any of the Client’s premises, officials, employees, contractors or agents.
10.4 If an IPR claim is filed or there is a reasonable likelihood of an IPR claim being filed, the Company may choose to do the following:
a) Seek to obtain for the Client the right to continue receiving the benefits of the corresponding Services; or
b) Modify or replace the noncompliant element of the Services in order to prevent the breach or alleged breach, provided that the Services continue to substantially comply with their Specification.
10.5 The obligations assumed by the Company under the foregoing clause shall not apply to Services that are modified or used by the Client other than as specified in the Contract or the instructions issued by the Company. The Client shall indemnify the Company for all losses, damages, liability, costs and expenses (including reasonable legal fees) that the Company may incur in relation to any claim that may arise as a result of said modification or use; or as a result of the Client’s use of any information or material supplied by the Company to the Client.
10.6 Specific considerations related to digital products, software and licences:
10.7 The Company guarantees that the elements comprising the product are lawful and that they have been created by the Company or by third parties who have authorised their use in order to carry out the work, or that they are not affected by third-party rights.
10.8 The Client shall provide the Company with the necessary information, documents, data and/or materials to carry out the work. The Client shall be responsible for ensuring the lawfulness of same; consequently, the Company shall be held entirely harmless in relation to any consequences that may arise from the failure to fulfil this requirement.
10.9 In the case of a digital product, software and/or licence that is owned or has been developed by the Company (or by third parties that have authorised the Company to use it), and if the Client obtains a licence for non-exclusive use (except for courses, even if they are managed through licensing), the intellectual and industrial property rights shall remain with the Company or the third-party licensors. These are the rules that shall apply by default, in accordance with the following specific considerations:
a) The Client shall obtain a licence for temporary use by paying the amount specified in the order. The licensee understands and accepts that the Company’s intellectual property rights protect the program as a whole as well as its components. Except for the Client’s own content, all of the elements that comprise the program, including the design, databases, templates, navigation structure, texts, images, animations, logos and other distinctive marks belong to the Company or to the third parties who have exclusively authorised the Company to use them. The Client may use these elements in the extent to which it is necessary or appropriate in order to ensure proper use of the program. Any reproduction, distribution, public communication or transformation of said elements is prohibited, along with any form of decompilation or reverse engineering. The Company does permit the Client to communicate and disseminate the communicative elements that are obtained with the program (seals, reports, certificates, etc.). The Client shall adopt the necessary internal measures to ensure that the personnel it is responsible for use the program in a way that respects the Company’s rights. The license includes free product updates. The Company shall inform the Client of any new versions that contain improvements to the licensed product, so that the Client may choose whether to extend the license it has purchased. Any usage licences that are granted to the licensee shall not be interpreted as an assignment of the Company’s rights to the program. The licensee may not authorise third parties to use the program, transfer any usage rights it may hold, or lease, assign or transfer its rights by any other means.
10.10 In the case of a digital product, software and/or licence that is owned or has been developed by the Company (or by third parties that have authorised the Company to use it), and if the Client obtains a licence for non-exclusive use, including courses, the intellectual and industrial property rights shall remain with the Company or the third-party licensors, and the following specific considerations shall apply:
a) After paying for the licence, the Client may make use of the course materials that are provided by the Company (these may include, but are not limited to, texts, designs, databases, templates, images, animations and graphics) for the purposes specified in the licence. They may also be accessed and used by the personnel for whom the course is intended. The licence obtained by the Client shall not entitle it to reproduce, distribute or publicly communicate the materials (in the sense described in Articles 18-20 of the Intellectual Property Act) for other purposes. Any action involving the transformation of the materials, or access thereof by third parties or their use for other purposes, is prohibited.
10.11 With regard to intellectual and industrial property in relation to solutions for carbon credit offsetting, the following specific considerations shall apply:
10.12 The industrial and intellectual property rights to the materials, designs, models, techniques and instruments used and/or developed by the Company pursuant to solutions for carbon credit offsetting shall belong exclusively to the Company, unless said property rights belong to a third party that has authorised the Company to use them.
10.13 All illustrations and drawings provided by the Company shall remain its property and may not be copied, reproduced or made available to third parties without the Company’s express permission.
10.14 The Client undertakes not to infringe any of the Company’s industrial and intellectual property rights in any way. Infringement shall include (but is not limited to) using the materials provided by the Company to execute the order, in full or in part, for the Client’s own purposes or those of third parties; reproducing, broadcasting or supplying said materials; or allowing them to be used in any other way, whether in exchange for payment or otherwise.
11.1 Both parties shall be obliged to refrain from communicating, assigning or transferring to third parties any information related to activities, clients, operations, facilities, procedures, methods, transactions, work protocols or any other information that is protected under Law 1/2019 of 20 February on trade secrets, when it has obtained said information by virtue of the provision of the Services. The obligation to maintain confidentiality is not subject to any time limits and is independent of the medium on which the information is stored or communicated and whether it is technical, financial, commercial, IT-related or any other type of information; and it must continue to be kept confidential even after the relationship between the Company and Client has ended.
11.2 This information is strictly confidential and must be processed and used in accordance with its confidential nature and solely for the purposes of providing the Services that are the object of the Contract, excepting the provisions of this Clause and Clauses 11.3 and 11.4. The provisions of this Clause shall not apply to:
a) Any information that is in the public domain on the date of the Contract;
b) Any information that subsequently enters the public domain (and not as a result of any breach of the Contact or related agreement);
c) Any information that is obtained independently by either of the parties without using the information provided by the disclosing party or by any party affiliated with the disclosing party;
d) Any disclosure that is required by law or by a regulatory or administrative authority or is otherwise required by the provisions of the Contract.
11.3 Both parties undertake and shall be reciprocally obliged to keep secret and refrain from revealing to third parties any confidential information that may be disclosed to them by the other party, and to adopt the necessary measures to prevent unauthorised third parties from accessing said confidential information and to prevent its disclosure. The receiving party shall bear sole liability for the consequences arising from any breaches of this obligation to maintain confidentiality. The foregoing shall apply notwithstanding the disclosure required by law or by the competent authorities, or in cases where the other party has given prior written consent to the disclosure.
11.4 This confidentiality obligation shall not prevent the Company from making reference to the Client as part of its client portfolio in presentations and for advertising and marketing purposes, or from publicising non-confidential information or using texts, distinctive marks and images of the Project and Client on its website and in reports and other materials it may publish, with the aim of publicising and raising awareness of its activities and in order to attest to its solvency before public sector bodies. All of the foregoing shall apply unless the Client stipulates otherwise in writing. The Company may not assign these images, distinctive marks or texts to third parties or use them for purposes other than specified without obtaining the Client’s express written consent.
12. Data protection
12.1 Each of the parties shall process the Protected Data in accordance with the stipulations of the data protection legislation and the Terms and Conditions of the Contract.
12.2 Additionally, the Client shall ensure that all of the instructions it gives to the Company with regard to the Protected Data are in accordance at all times with the data protection legislation, notwithstanding the fact that if the Company receives instructions from the Client that might infringe the data protection legislation, the Company shall inform the Client immediately and shall have the right to cease providing the corresponding Services until the parties have agreed on a set of modified instructions that do not commit any infringements.
12.3 In accordance with the provisions of Organic Law 3/2018 of 5 December on the Protection of Personal Data and the Guaranteeing of Digital Rights, and the General Data Protection Regulation (EU) of 27 April 2016, the Client and the signatories are hereby informed that the personal data they provide as a result of their signing shall be incorporated into an automated database owned by the Company. By accepting this Clause, they expressly consent to the automated processing of the data provided, where the purpose of said processing is to enable the correct management of the contractual relationship and, where applicable, the process of purchasing the Services. Likewise, the Client and the signatories consent to the sharing of their contact details with the other organisations in the Anthesis Group for the purposes specified above.
12.4 Each party shall indemnify the other and and hold it harmless in relation to any and all losses, claims, damages, liability, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to the Data Subjects, demands, legal fees and other professional fees (calculated on the basis of total indemnification and in each separate instance, regardless of whether they derive from any investigation on the part of a supervisory authority or are imposed by same) that may arise as a result of or in relation to any failure on the part of the indemnifying party to fulfil its obligations under this Clause.
12.5 In the event that, in order to provide any of the Services that are specified in the Contract, the Company accesses any personal data for which the Client is the Data Controller (in accordance with the provisions of Regulation (EU) 2016/679 of 27 April), it must do the following:
a) Adopt and implement the appropriate technical and organisational measures to ensure the security of the data and prevent the alteration, loss, unauthorised processing and/or access thereof, taking into account the technological state of the art, the nature of the data in question and the risks to which it is exposed, whether as a result of human action or the physical or natural environment.
b) Only use the data in the extent to which it is necessary in order to provide the Service, and under no circumstances for purposes other than those specified.
c) Refrain from assigning, communicating or transferring the data to third parties, even for storage.
d) Ensure that none of the data remains at its disposal after the Service has been provided; to which end it must return or destroy the data, except insofar as the applicable legislation requires the Company to store the Protected Data, the Company has another legitimate basis for processing the data, or in order to defend itself against any claims. Any such actions must always be proportionate to the purposes for which the data was collected.
12.6 For its part, and with regard to said data, the Client is obliged to ensure that it is always lawful in nature and has been obtained lawfully; and that prior to the Company’s accessing of same, the Client had obtained the relevant consent for said purpose from the Data Subjects in question.
12.7 The Company shall only allow the Protected Data to be processed by an agent, subcontractor or other third party (the “Sub-Processor”) when:
a) Said third parties are bound by a written obligation to keep the Protected Data confidential;
b) Before the Sub-Processors process any of the Protected Data, they each sign a written agreement containing substantially the same obligations as those stipulated in this Clause, and that these obligations are enforceable by the Company;
c) All Sub-Processors and any other persons authorised by the Company to process the Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential;
d) The Company shall remain fully liable to the Client under the Contract for any acts or omissions committed by any of the Sub-Processors; to which end, any such acts or omissions shall be treated as though the Company itself had committed them.
12.8 The Client is hereby informed that, in relation to the personal data collected, it may exercise its rights to access, rectify, erase, oppose and restrict the processing of its data, as well as its right to data portability, using any of the tools provided for this purpose on the Company’s website or by sending the corresponding request via e-mail to firstname.lastname@example.org and/or email@example.com, or via post addressed for the attention of our Data Protection Officer (namely Josep Matas y Balaguer, lawyer and Girona Bar Association member no. 2,535) at Av. de Roma, 252, 08560, Manlleu, Barcelona. In all cases, a copy of the applicant’s proof of identity must be attached.
12.9 If the Client feels that its data has not been processed properly, it has the right to file a claim with the Spanish Data Protection Agency.
13. Occupational risks
13.1 For activities that are subject to the provisions of Article 24 of Law 31/1995 and Royal Decree 171/2004 on the coordination of business activities, the Client is asked to provide a risk assessment for the place of work where the Company’s personnel will be operating, along with details of its emergency plan, the specific health and safety regulations, and a list of the personal protective equipment that needs to be used, where applicable. For its part, the Company shall provide the Client with any documentation that the latter may request. Once the coordination activities have been completed, the coordination report shall be signed by both parties.
14. Force majeure
14.1 The parties shall be released from their respective obligations when it is not possible to fulfil them due to unforeseen and unavoidable circumstances, natural disasters (e.g. wildfires, floods, earthquakes, storms, hurricanes, epidemics, etc.), acts of war (whether officially declared or not), invasions, revolutions, uprisings, terrorism, and other acts of a similar nature or impact (and which constitute force majeure), provided that said acts are caused by factors beyond the control of the party that invokes this Clause and are not the result of a failure or negligence on its part; and that
a) The invoking party notifies the other party of the situation of force majeure as soon as possible, and the expected duration thereof; and
b) The invoking party makes every possible effort to minimise the impact of the situation.
14.2 If, due to force majeure, either of the parties:
a) Is or shall be unable to fulfil an important obligation; or
b) Is late in fulfilling or cannot fulfil its obligations for a continuous period of more than six months or for a total of more than 30 days in any consecutive 90-day period, the parties shall have 30 days in which they must renegotiate the Contact in order to fulfil the original commercial intention, in the extent to which this is possible.
15.1 All of the notifications that are made by either of the parties under this Contract must:
a) Be made in writing and preferably in Spanish or Catalan;
b) Be signed by or on behalf of the party that is sending it (except for notifications sent via e-mail); and
c) Be sent to the corresponding party at the address specified in the Proposal or another address that either of the parties may have specified in writing at the relevant time.
15.2 Notifications shall be considered duly sent and received under the following circumstances:
a) By hand: when a signature is provided upon delivery;
b) By post: when the corresponding delivery notification is received from the certified fax service (burofax) or certified post service;
c) By international post: when the corresponding official notification is received from the Spanish Post Office (Correos);
d) By e-mail: when a read-receipt is sent to indicate that the e-mail was delivered to the correct address.
15.3 If the contact details that are specified in the Contract should change for either party, it must notify the other party accordingly. Said change shall become effective:
a) On the date specified in the notification as the date on which the change is to take place; or
b) If no date is specified, two working days after the notification is considered duly received.
15.4 All references to time shall be understood to refer to Greenwich Mean Time (GMT) +1.
15.5 This Clause shall not apply to notifications made as part of legal proceedings or arbitration proceedings.
16. Assignment and subcontracting
16.1 The Client may not assign, subcontract or encumber any of its rights or obligations under the Contract, in full or in part, without obtaining prior written consent from the Company, which shall be entitled to withhold or delay such consent at its full discretion.
a) Notwithstanding the above, the Client may fulfil any of its obligations and exercise any of the rights granted under the Contract through a third party, provided it gives the Company prior written notification of said subcontracting or assignment and provides details of the identity of the corresponding third party. The Client acknowledges and accepts that any act or omission on the part of its subsidiary/subcontractor with regard to its rights and obligations under the Contract shall be considered as having been committed by the Client.
16.2 The Company shall be entitled to assign and/or subcontract to companies in its corporate group and/or to third parties the execution of certain stages or tasks that form part of the Services, or even all of the Services, when this is necessary for operational reasons and provided there are no legal prohibitions on doing so. In such cases, the Company shall be jointly liable along with the subcontractor for any damage that the latter may cause to the Client, in accordance with the limits stipulated in these General Terms and Conditions.
a) Likewise, and without needing to obtain the Client’s prior consent, the Company may at any time assign the rights and benefits derived from the Contract to any company in its corporate group or to a third party.
17.1 No delays or omissions on the part of the Company in exercising a particular right, power or remedy to which it is entitled by law or under the Contract shall constitute a waiver of said right, power or remedy; not shall it impede or restrict the future exercising of said right, power or remedy (or any others). The sole or partial exercising of any right, power or remedy provided for by law or under the Contract shall not prevent it from being exercised in the future, nor shall it prevent the exercising of any other right, power or remedy on the part of the Company.
17.2 The waiving of any terms, provisions, conditions or breaches of the Contract on the part of the Company shall only be effective if it is set down in writing and signed by the Company, and only then for the specific case and purpose in question.
18.1 If any legal disputes arise in relation to the interpretation or execution of the Contract, the Proposal, the Project or these General Terms and Conditions, the parties expressly waive any other jurisdictions that may apply and agree that the dispute shall be subject to Spanish law and the jurisdiction of the courts and tribunals of the city of Barcelona.
19. General considerations
19.1 The parties agree that the Contract and any documents that are signed by virtue of the Contract (including any confidentiality agreements) constitute the entirety of the agreement between the parties and replace any prior agreements, understandings and arrangements they may have had, whether written or verbal, in relation to the corresponding purpose. In the event of discrepancy between the terms stipulated in these Terms and Conditions and those of the Proposal, and any other signed document that forms part of the Contract, those of the Proposal shall take precedence.
19.2 The parties are independent entities and shall not be considered partners, principal and agent, or employer and employee. The Contract does not establish any joint venture, trust, fiduciary relationship or any other type of relationship between the parties, other than the contractual relationship expressly provided for therein. Neither party shall have, or may claim to have, any authority to enter into commitments on behalf of the other party.
19.3 Each party acknowledges that it has not signed the Contract or any other documents deriving therefrom on the basis of any declarations or guarantees that are not expressly stated in the Contract or the signed documents deriving therefrom, and therefore is not entitled to make any claims in relation to any such declarations or guarantees. Neither party shall have the right to make a claim in relation to any misrepresentation, whether innocent or negligent, that may have been made in relation to any of the declarations made in the Contract.
19.4 Any modifications to the Contract shall only be deemed valid or effective if they are set down in writing, make specific reference to the Contract and these Terms and Conditions and are duly signed or carried out by or on behalf of the Company.
19.5 The Client shall pay any and all amounts that are owed to the Company under the Contract, without compensation, counter-claim, deduction or withholding of any kind, except for those that may be stipulated by law. Moreover, the Client shall cover any costs and expenses it may incur in negotiating, preparing, signing and executing the Contract (and any documents referred to therein).
19.6 If any of the clauses of this Contract are declared null or inapplicable, they shall be deemed excluded from the Contract, without this rendering the Contract null. In such cases, the parties shall make every effort to find an equivalent solution that is both valid and duly reflective of their intentions.
19.7 The headings of the various clauses are for information purposes only and shall not affect, qualify or broaden the interpretation of this Contract.
19.8 None of the provisions of these Terms and Conditions are designed to limit or exclude any liability for fraud.
I. Annex A
II. Definitions and interpretation. In these Terms and Conditions, the following definitions shall apply:
“Affiliate/Partner/Associate” means any entity that directly or indirectly controls, is controlled by or is under the joint control of another entity.
“Policy” chiefly refers to mandatory compliance with the legal requirements to combat fraud and corruption; to which end it is expected that all employees, directors, members, partners and associates shall act and perform their functions in accordance with the strictest criteria of honesty, probity and integrity, and that they shall ensure the proper use of resources in accordance with the Code to Combat Fraud and Corruption that applies within Spain and any similar or equivalent legislation in any other relevant jurisdiction, and in accordance with the acquis communautaire.
“Working day” means a day that is neither Saturday, Sunday nor a public holiday.
“Conditions” means the Terms and Conditions governing provision on the part of the Company as established in this document.
“Confidential information” means any commercial, financial or technical information, information related to the Services, plans, technical knowledge or trade secrets that are obviously confidential or have been identified as such; or information that has been obtained by either of the parties pursuant to the fulfilment of its obligations under the Contract or by any other means.
“Company” means LAVOLA 1981, SAU.
“Contract” means the Contract that is formed when the Company receives the signed Proposal from the Client. The Company shall supply the Services and the Client shall acquire them in accordance with the terms specified in the Proposal and in these Terms and Conditions.
“Control” means the effective ownership of more than 50% of the share capital issued by a company or the legal capacity to direct the management of the company (whether directly or indirectly).
“Data Controller” shall have the meaning that is specified in the applicable data protection legislation at the time in question.
“Client” means the entity that acquires the Services from the Company and whose details are specified in the Proposal.
“Data protection legislation” means the following (which are binding on all parties and/or the Services):
the GDPR; Organic Law 3/2018 of 5 December on the Protection of Personal Data and the Guaranteeing of Digital Rights; any law that implements either of the foregoing laws; and any law that replaces, extends, reenacts, consolidates or modifies either of the foregoing laws, in accordance with the acquis communautaire.
“Data Subject” shall have the meaning that is specified in the applicable data protection legislation at the time in question.
“Deliverables” means the elements that are delivered to the Client following the provision of the Services, as specified in the Proposal (where applicable).
“Force majeure” means an event or sequence of events that is beyond the reasonable control of one of the parties (after exercising reasonable diligence in the provision of solid backup and disaster recovery mechanisms) and prevents or delays the fulfilment of the party’s obligations under the Contract; e.g. acts of God, wildfires, floods, lightning strikes, earthquakes and other natural disasters; wars, uprisings and civil disturbances; interruption to or failure of energy, fuel or water supplies, transportation, equipment or telecommunications services or other materials necessary for the execution of the Contract; and any delay or failure caused by circumstances beyond the reasonable control of the party affected, but excluding inability to pay on the part of the Client or any circumstances resulting in the Client’s inability to pay.
“GDPR” means the General Data Protection Regulation, i.e. Regulation (EU) 2016/679.
“Intellectual and industrial property rights” means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, filing rights, rights in goodwill, confidential information rights, the right to file claims against counterfeiting, domain names, and all other rights of a similar nature whether registered or otherwise, including any application to protect or register said rights; all renewals and extensions of said rights or applications; rights that have been acquired, whose acquisition is contingent or which may be acquired in the future; rights to which the corresponding party is or may be entitled; and in any location in the world where the foregoing may apply.
“International organisation” shall have the meaning assigned to it in the applicable data protection legislation at the time in question.
“Location” means the address(es) specified for the provision of the Services (where applicable), as stipulated in the Proposal.
“Personal data” shall have the meaning assigned to it in the applicable data protection legislation at the time in question.
“Infringement of personal data” shall have the meaning assigned to it in the applicable data protection legislation at the time in question.
“Price” has the meaning specified in Clause 3.
“Processing” shall have the meaning assigned to it in the applicable data protection legislation at the time in question; while the related expressions, including “process”, “processed” and “processes” shall be interpreted accordingly.
“Data Processor” shall have the meaning assigned to it in the applicable data protection legislation at the time in question.
“Accepted Proposal or Project” means the document provided by the Company along with the Proposal and which must be signed and returned if the Client wishes to enter into a Contract under the terms specified in the Proposal and these Terms and Conditions.
“Proposal or project” means the document(s) specifying the scope of the Services to be provided by the Company, any End Products, and/or any time frame or targets/time estimates, where applicable, and/or any prices that are to be paid for the Services and details of any Protected Data and Processing, as agreed in writing and signed by both parties.
“Protected Data” means the personal data received from or on behalf of the Client pursuant to the fulfilment of the Company’s obligations under the Contract. Full details regarding the Protected Data and Processing shall be specified in the Proposal.
“Services” means the Services specified in the Proposal and which are to be performed by the Company for the Client.
“Specification” means the description or specification of the Services stipulated or referred to in the Proposal.
“Sub-Processor” means any agent, subcontractor or other third party (excluding employees) contracted by the Company to carry out any processing-related activities involving the Protected Data on behalf of the Client.
“Company personnel” means all employees, officials, staff members, other workers, agents, officers, trainers and consultants that work for the Company, its Affiliates, and any subcontractors who are involved in the provision of the Services at any time.
“VAT” means the Value Added Tax that is applied in accordance with the 1992 Value Added Tax Act (Ley del Impuesto sobre el Valor Añadido) or any other sales tax or levy that may apply to the sale of the Services.
III. In these Terms and Conditions, unless the context requires otherwise:
a) Any clause heading or other title in these Terms and Conditions is included solely for the sake of convenience and shall not have any influence on the interpretation of the Terms and Conditions.
b) Reference to a “party” may include its personal representatives, successors and authorised assignees.
c) Reference to a “person” may include a natural person, an organisation or an unincorporated entity (regardless of whether it has legal personality, in each case) and to the personal representatives, successors and assignees of said person.
d) Reference to a “company” may include any company, corporation or other corporate entity, wherever and however it may have been incorporated or created.
e) Reference to a gender may include each of the other genders.
f) Singular terms may include the plural, and vice versa.
g) Any word that follows the terms “include”, “includes”, “including”, “in particular” or any similar words or expressions shall be interpreted as being solely for the purposes of illustration, and shall not limit the meaning of any words, sentences, terms, definitions or descriptions that precede said words.
h) Reference to “writing” or “written” includes any means of reproducing words in a legible and non-temporary form (including e-mail); and
i) Reference to “legislation” is a reference to the legislation indicated and includes any subordinate legislation (where applicable) and any modifications, extensions, enactments or consolidations thereof, except in the extent to which said modification, extension or enactment increases or alters the liability of either of the parties under the Contract.