ONE. Purpose of the Agreement
1.1. The purpose of this Agreement is to regulate the terms and conditions under which Sotelo will provide to the Client, on demand, an IT consultancy service, in accordance with the provisions of this Agreement (hereinafter, the Service).
1.2. The Service is non-transferable. It may not be transferred to third parties, nor may it be leased, sub-licensed or subleased, not even to companies of the same business group as the Client, without the prior written authorisation of Sotelo.
TWO. Characteristics of the Service
2.1. The specific tasks and processes to be performed by Sotelo are listed in Appendix I to this Agreement and, where appropriate, in such other Appendices as the Parties may mutually agree to add into this Agreement. Any other service requested by the Client which is not included in any of the Appendices to this Agreement must be the subject of a separate quotation and acceptance.
2.2. Pursuant to the financial consideration agreed for the provision of the Service, the Parties agree that Sotelo shall dedicate to the Service the hours specified in Appendix I. In the event that more time is required, the Parties may revise the agreed rate for the provision of the services and attach to the present the agreements reached in this regard and apply the rate agreed herein until such time. The service will be provided from Monday to Friday during business hours, except on public holidays in A Coruña, and shall be provided in the English language.
2.3. Sotelo will carry out its duties on an autonomous basis and in accordance with its own organisational standards in each activity, although it must follow the general instructions received from the Client in each case.
2.4. Sotelo will provide the Service in accordance with its own criteria and will organise its own activity in the way it considers most appropriate for the greatest effectiveness and efficiency in the performance of its tasks. Similarly, Sotelo shall select the personnel assigned to the provision of the Service with freedom of criteria. It will set their salaries and remuneration and their organisation and exercise disciplinary, management and control powers where appropriate. Nevertheless, it will make reasonable efforts to maintain the stability of said personnel in the interests of more seamless provision of the Service.
2.5. Notwithstanding the foregoing, the Client shall provide Sotelo with all necessary cooperation, information, data, and support required by Sotelo to fulfil its obligations under this Agreement.
THREE. Obligations of the Parties
3.1. Without prejudice to the other obligations provided for in this Agreement, the Client undertakes to:
a. Provide Sotelo with the information, documentation, and other elements necessary, or merely appropriate, to enable the performance, execution and fulfilment of the obligations arising from this Agreement, and in particular of the tasks and processes listed in Appendix I thereof.
b. Review the reports provided by Sotelo, as the case may be, and to make contributions in relation to the same, as well as to provide Sotelo with any assistance necessary, or merely appropriate, for the purpose of facilitating the correct provision of the Service.
c. Not to use reverse engineering techniques, decompile, decrypt, or use any other method or system to ascertain the operation of any tools, application methods, processes and techniques belonging to the scope of the Sotelo’s know-how and intellectual and industrial property.
d. Collaborate with Sotelo in all areas necessary for the fulfilment of the object of the present Agreement.
3.2. For its part, and without prejudice to the other obligations provided for in this Agreement, Sotelo undertakes to:
a. Have at all times sufficient duly trained and technically qualified staff to ensure the proper performance of the Service.
b. Provide the Service with due care and in accordance with the practices existing in the market at the date of this Agreement, taking into consideration the standards and norms generally accepted in the sector, and using all the material means and human resources necessary for this purpose.
c. Have the material means necessary for the correct provision of the Service, including, but not limited to, computer equipment and software licences.
d. Respond to requests and recommendations made by the Client in relation to the Service as promptly as possible and, where appropriate, within the deadlines agreed in Appendix I.
e. Collaborate with the Client in all areas necessary for the fulfilment of the object of the present Agreement.
FOUR. Consideration
4.1. In consideration for the provision of the Service, the Client shall pay the amounts established in Appendix I of this Agreement, in accordance with the hours contracted for the execution of the Service and the agreed hourly rate.
4.2. The agreed fees shall be invoiced monthly in arrears, according to the hours of Service consumed each month, and shall be payable within [SPECIFY] ([SPECIFY]) days after the date of issue of the invoice. Payment shall be made by bank transfer to the account number specified on the invoice.
4.3. The amounts set forth in this Agreement or its Annexes do not include taxes, taxes or third party fees, and the latter, if applicable, must be subject to prior acceptance by the Client.
4.4. If the invoice presented for collection is not paid in accordance with the above deadlines, Sotelo reserves the right to suspend the provision of its services, as well as to terminate this Agreement and claim the total of the outstanding amounts.
4.5. Sotelo reserves the right to update the amounts established on January 1 of each year in which it remains in force, in identical proportion to the variation that the Consumer Price Index (CPI) has experienced in the twelve (12) immediately preceding months, according to the data published for this purpose by the National Institute of Statistics or the organism that substitutes it. However, the first revision of the price of the Services of this Agreement will be made retroactively on 1 April 2023, considering that the current price is established according to references of September 2019.
FIVE. Duration
The Service described in the Contract shall extend for TWELVE/THIRTEEN (12/13) MONTHS, from [DEFINE] 2022 to December 31, 2023, and shall be automatically renewed upon its termination, for periods of twelve months, unless express notice is given by either party at least thirty (30) natural days in advance.
SIX. Designation of responsible persons
6.1. Each of the parties shall appoint a representative for the purposes of this agreement, with full powers to take any decision relating to the performance and execution of the contracted services. The other party shall be notified in writing of any change of representative.
6.2. Where appropriate, Sotelo's representative shall be responsible for coordinating the team of staff that Sotelo has assigned to the contracted service to ensure the correct execution of the object of the Agreement.
6.3. Notwithstanding the above, the representative of Sotelo may, if he/she deems it necessary, appoint a Service Coordinator from among the team assigned to the service. Such a coordinator shall have the powers determined with respect to the rest of the resources assigned.
SEVEN. Intellectual property rights and licence of use
7.1. The Client is responsible for obtaining any authorisations that may be necessary, as well as for complying with any obligation regarding the intellectual or industrial property rights of third parties that may affect the contents that may be provided to Sotelo for the execution of the Service, and over which Sotelo will carry out no prior verification.
7.2. Sotelo is the owner of the result of the development carried out in execution of this Agreement, whose intellectual property rights it undertakes to transfer to the Client (i) on a non-exclusive basis but with the character of transferable by the Client to third parties in the terms expressed in this Stipulation, (ii) for the duration of this Agreement and, following its termination, for the maximum time permitted by the Intellectual Property Law until its passage into the public domain and (iii) without territorial limit and therefore for all the territories of the world. The assignment shall be made when the Customer pays in full all the consideration provided for in this Agreement.
7.3. Sotelo undertakes to obtain legitimately and from reliable sources the proper licences and rights to those programming elements which, as the property of third parties, are used in the execution of this Agreement, thus ensuring the Client the peaceful use of the same. This obligation shall not, however, apply to the contents provided for in the first paragraph of this Clause.
7.4. Sotelo shall retain the rights to the source code, or lines of programming code, under its ownership, and may use the same for any other computer development that does not offer or market products or services identical or substitutable to those offered by the Client.
7.5. In the event that the Client wishes to request the registration of its intellectual property rights over the results of the execution of this Agreement, Sotelo undertakes to provide the documentation necessary to proceed with such registration in the appropriate registers, within the limits established in this Agreement.
7.6. Sotelo undertakes to cooperate in any claim that the Client may initiate against third parties in relation to the commission of infringements affecting the intellectual property rights held by the Client under this Agreement.
EIGHTH. Confidentiality
8.1. The Parties accept that in order to achieve its objectives, on the one hand, the Client must provide Sotelo with certain information, documentation or confidential material and, on the other, Sotelo shall provide and demonstrate certain tools, application methods, etc. to the Client, within the scope of its know-how and intellectual property.
8.2. By virtue of the foregoing, both Parties agree that any information, documentation or material provided during the term of this Agreement and in the development of the contractual relationship established herein shall be strictly confidential and be treated as such by the receiving Party and its employees, and any other person in its service, and both Parties undertake to respect and enforce the confidential nature of such information and/or material provided by the other Party at all times. Furthermore, the Parties undertake not to copy, reproduce, or otherwise transfer information provided by the other Party to third parties, without the prior written permission of the Party providing the information, and agree not to make use of any information provided in connection with the purposes provided for in this Agreement beyond the purpose for which the information was originally provided.
8.3. The duties of confidentiality arising under this Agreement shall continue insofar as the information remains confidential (as defined below) for the duration of this Agreement and indefinitely after the termination of this Agreement.
8.4.For the purposes of applying the content of the preceding paragraphs, information shall not be considered confidential if:
a. it was published prior to the date of signature of this Agreement, or made public, unless it was made public as a result of a breach of agreement attributable to the receiving Party or its personnel;
b. the receiving Party already had it prior to the date on which the providing Party provided it, or it was independently made known to the receiving Party, provided that this fact is brought to the attention of the providing Party;
c. it was received through third parties and provided it was not obtained illegally by them.
d. it was developed by the receiving Party independently of confidential information received by the providing Party.
e. it was made public by law, a legal mandate or the relevant authorities; in such cases, the scope of the exclusion shall exclusively cover the information or the part thereof which has been made public. In any case, any legal requirement that would publish confidential information in accordance with the provisions of this clause shall be notified in advance to the affected Party so that it can assert its rights as appropriate.
8.5. Notwithstanding the foregoing, this stipulation shall apply in particular to the application methods, tools and know-how of Sotelo of which the Client has knowledge. In this way, the Client's duty of absolute confidentiality in relation to the same is reiterated, as well as its commitment not to use them for its own benefit or for the benefit of third parties, not to disclose or transfer them to third parties by any means, and to comply with the other obligations established in this stipulation.
NINE. Data protection
9.1. The Parties inform each other that the personal data of the signatories of this Agreement and the personal data derived from the contractual relationship, will be processed by each of them as data controllers, in order to manage the rights and obligations arising from this Agreement. In order to allow the exercise of rights in this matter, the Parties designate the addresses indicated in the heading of this document, as well as the following electronic addresses:
a. By Sotelo: [email].
b. By the Client: [email].
9.2. The provision of the service object of this Contract entails (or may entail) access by Sotelo to personal data from the files and records owned by the Client. Such access will take place in the position of data processor, under the terms provided for in Article 28 of Regulation (EU) 2016/679 and 33 of the Organic Law 3/2018, of December 5, on the Protection of Personal Data and Guarantee of Digital Rights.
9.3. Sotelo will process the data to which it has access in accordance with the object and purpose of the Contract, and always under the documented instructions provided by the Client.
9.4. Sotelo has adopted the technical and organizational measures in accordance with the type of data processed, the context and purposes of the Contract and the risks of the processing for the rights and personal freedoms of the natural persons.
9.5. The execution of the Contract does not require the subcontracting of part of the services. However, in the event that such access is necessary to fulfill the object and purpose of the Contract, the Client may authorize Sotelo to carry out such outsourcing, in accordance with the provisions of Article 28.2 RGPD, by prior written or specific authorization. In any case, the document regulating such relationship shall contain the provision of sufficient guarantees of implementation of appropriate technical and organizational measures, so that the processing is in accordance with data protection regulations.
9.6. In the event of termination of the contractual service, Sotelo undertakes to return all personal data collected under this contractual relationship to the Client and shall retain no medium or document containing any personal data. However, Sotelo may retain, duly secured, any data that are necessary in so far as any liabilities may arise from its relationship with the Client.
9.7. Sotelo shall make available to the Client, upon request, any information necessary to prove fulfilment of its obligations.
TEN. Limitations, guarantees and liabilities
10.1. Sotelo guarantees that the Service will be provided with professional quality, in accordance with the standards and practices generally accepted by the industry and in accordance with the provisions of this Agreement, and Sotelo expressly represents, by signing this document, that it knows and accepts its contents.
10.2. The services provided by Sotelo on behalf of the Client do not exempt the latter from carrying out, in turn, its own checks of operation and suitability, as well as having the number of employees with the necessary training to carry out such tasks.
10.3. Sotelo cannot guarantee the achievement of results that do not depend exclusively on its activity, nor the use or implementation of technologies, knowledge or technical means superior or newer than those initially foreseen, aspects known and accepted by the Client.
10.4. The use of the information provided by Sotelo, in execution of the present Contract, is under the absolute responsibility of the Client. Sotelo's services are addressed to professionals who, under their own responsibility, assume the interpretations and calculations provided by Sotelo. Consequently, Sotelo does not undertake or accept any liability for any direct or indirect damage allegedly caused by the use or lack of use of the information provided in execution of this Agreement.
10.5. The parties agree that the responsibility that Sotelo assumes towards the Client, derived from the correct provision of the Service, as referred to in section 10.1, and agreed in the present Contract, in no case includes the loss of profit and will be limited, as a maximum and except in cases derived from fraud, to the total amount received by Sotelo from the Client as fees for the provision of the services object of the present Contract.
10.6. Sotelo shall not be liable for those guarantees or statements made by third parties without its prior written authorization.
ELEVEN. Nature of the Agreement and coordination of work
11.1. The nature of the present Contract is exclusively a commercial one, being Sotelo and the Client, in any case, independent contractual parties. In no case does the present Contract imply the creation of any link between the Parties other than that derived from the strict content of the same, without any agency, labor, franchise, joint venture or partnership relationship being created or established by virtue of its clauses, or any legal representation being conferred on one Party to act on behalf of the other.
11.2. The Service will be provided either at Sotelo's premises or at the Client's premises, depending on the Client's needs. The location where the services are provided does not imply, under any circumstances, any employment relationship between the Client and the Sotelo personnel who have travelled to the Client's offices to provide the contracted services.
11.3. In the event that part of the services contracted from Sotelo under this Agreement are carried out on the Client's premises, the latter undertakes to provide Sotelo with a space on its premises for the latter's personnel, facilitating free access by Sotelo's personnel, without prejudice to any security measures that may be applicable. Sotelo's staff must observe the security rules established by the Client, as well as the working hours at its offices, which will be communicated to the Client in advance.
11.4. Under no circumstances may the Client directly contact Sotelo's employees in order to give them instructions for the performance of the Service that is the object of this Agreement. For these purposes, Sotelo will designate the contact persons who will coordinate, together with those designated by the Client, the monitoring of the provision of the Service.
11.5. Sotelo undertakes to comply accurately and faithfully with all labour, tax, occupational risk prevention and any other obligations deriving from its status as a company or employer. It shall take due care to observe the obligations laid down in this respect in the present law or any others established by future laws.
11.6. Sotelo must exhibit, prior to the commencement of the activity and when requested by the Client, documents proving compliance with the aforementioned obligations and in particular those relating to labour, tax, and occupational risk prevention.
11.7. The non-fulfillment of the obligations established in the previous paragraphs of the present epigraph or, in its case, the fact that Sotelo is in debt with its workers, with the Tax Administration or with the Social Security may be considered by the Client as a cause for the termination of the present contract, without the right to any compensation for Sotelo.
11.8. Sotelo reserves the right to subcontract, in whole or in part, the Services object of the present Contract. However, if such subcontracting implies access to personal data under the Client's responsibility, it shall comply with the obligations established by the current legislation on personal data protection.
11.9. In addition, during the term of this Agreement and for a period of two (2) years after the termination of this Agreement, Client shall not, without obtaining Sotelo's prior written consent, contact Sotelo's employees or suppliers, or assist any person or entity for the purpose of contacting any of Sotelo's employees or suppliers for the purpose of soliciting, inducing or attempting to induce such employees or suppliers to terminate their employment or business relationship with Sotelo. In the event of breach of this clause, the Client undertakes to pay Sotelo an amount equivalent to twice the remuneration that the employee or supplier would have received over a period of two (2) years as direct compensation for harm and loss. For these purposes, the average of the remuneration received by the employee or supplier in the last year, or fraction thereof if their relationship with Sotelo is less than one year, shall be used as the basis for calculation.
TWELVE. Safeguarding and interpretation
12.1. In the event of any inconsistency between the provisions of this Agreement and the Annexes, the terms and conditions in the Agreement shall prevail over the provisions in the Annexes, unless the provisions included in the Annexes expressly state otherwise.
In the event of any inconsistency between the provisions of this Agreement and the Annexes, the terms and conditions in the Agreement shall prevail over the provisions in the Annexes, unless the provisions included in the Annexes expressly state otherwise.
12.2. The failure of either party to enforce strict compliance with any of the terms of this Agreement does not imply and cannot be construed as a waiver by them on enforcing strict compliance with any of the terms of this Agreement in the future.
12.3. The declaration of invalidity of one or more of the stipulations in this Agreement by a competent authority shall not prejudice the validity of the others. In this case, the contracting parties undertake to negotiate a new stipulation to replace the invalid stipulation, with as similar an identity with the original as possible. If replacing it becomes impossible and the stipulation is essential to the Agreement, the aggrieved party may, in its opinion, terminate the Agreement.
12.4. This Agreement and the documents mentioned herein, in particular the written orders made by the Client in relation to this Agreement, constitute a single agreement, which supersedes any other agreement, contract or pre-contract reached between the Parties in relation to the subject matter of this Agreement.
THIRTEEN. Miscellaneous
13.1. Communications between the Parties in relation to this Agreement shall be made in writing, using any means that makes it possible to accredit their receipt and content. The Parties agree to use the addresses indicated at the top of this Agreement as addresses for notification purposes..
13.2. Any modification, addition, change or amendment to this Agreement shall be made in a written form, and shall not be binding upon the Parties until it has been signed and accepted by an authorized representative of each party.
13.3. The Client expressly authorizes Sotelo to use Sotelo's trademarks and logos for commercial purposes in its documentation. Such authorization of use does not imply in any case a license or assignment of the trademarks or logos, beyond the mere use mentioned above.
FOURTEEN. Termination of the Contract
14.1. In the event that the Client unilaterally terminates this Agreement in advance without just cause, the Client shall pay Sotelo, as a penalty, the amount corresponding to three months of Services. The amount for each month shall be the higher of the following two calculations: calculatedi) by averaging the billing data up to the date of termination or ii) on the basis of a minimum of 320 hours per month. This penalty shall not be substituted for any harm and loss that may be due.
14.2. In the event of non-compliance by either Party with any Stipulation provided for herein, the other Party may terminate this Agreement, reserving the right to claim damages by giving written notice to the other Party, provided that the non-compliance has remained unresolved for a period of fifteen (15) days from the date of written notice to the non-compliant Party.
14.3. The following shall also be grounds for terminating the Agreement:
a. The cessation of the legal status or lack of capacity of either of the Parties.
b. A situation of liquidation, either by judicial order or by the adoption of a social dissolution agreement by the other Party.
c. The cessation, for whatever reason, by one of the Parties of the continuity of its business or line of activity described in the provisions this Agreement, its dissolution, liquidation or ordered closure, and the transfer en bloc of its assets.
d. Any other cause provided for in this Agreement.
14.4. The termination of this Agreement shall not extinguish or modify the rights of the parties arising prior to such termination, in particular with regard to the payment of invoices issued by Sotelo and pending payment. Notwithstanding the foregoing, the terms and conditions of this Agreement which, by their nature and context, are intended to survive termination of this Agreement shall survive termination of this Agreement.
FIFTEEN. Governing law and Venue
15.1. This Agreement shall be governed by Spanish law.
15.2. For the purposes of interpreting and resolving any conflicts that may arise between the parties as a result of any discrepancy, issue or claim resulting from executing or interpreting this Agreement or directly or indirectly related to it, and expressly waiving any other jurisdiction to which they may be entitled, the parties hereby submit to the jurisdiction of the Courts and Tribunals of the City of Madrid, Spain.
And in witness thereof the parties hereto sign this Agreement in two counterparts, both equally authentic, in the place and on the date indicated in the header.