In these terms and conditions, the contractual relationship between DIGIZONELABS LTD., (hereinafter “BANZZU”) and you or the legal entity you represent (hereinafter the “CUSTOMER”) is made clear.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. BY CLICKING THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BANZZU, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS USER, AND TO BIND SUCH COMPANY TO THE AGREEMENT. THE TERM “YOU” OR “USER” REFERS TO THE NATURAL OR LEGAL PERSON, AS APPLICABLE, IDENTIFIED AS THE USER WHEN REGISTERING FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
That BANZZU is a company that has as its corporate purpose, among others, the development of programs, solutions and computer applications, the provision of computer services and the marketing and implementation of computer applications, offering within its scope of action access to its technology platform of computer solutions (SaaS) and Professional Services Outsourcing (Outsourcing), hereinafter referred to generally as the “Services”.
That the CLIENT wishes to contract part of the professional computer services offered by BANZZU, specifically: Development of a specific personalized application for restaurants.
That the Parties agree to enter into a contract for the provision of services under the terms and conditions set forth herein. That, by virtue of these considerations, the Parties freely and voluntarily grant the present SERVICE PROVISION CONTRACT (hereinafter, the Contract), which shall be governed by the following,
FIRST – DEFINITIONS
For the purposes of this Agreement, it shall be understood that
1.1 “Content of the CLIENT” refers to all material, information, photographs, writings and all creative material provided by the CLIENT to be used in the preparation of and/or incorporation into the software to be developed by BANZZU.
1.2 “Final Art” refers to all creative content developed or commissioned by BANZZU, for the Project, including, but not limited to, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments, modifications to the content of the CLIENT, diagramming and coordination of these elements in conjunction with the content of the CLIENT and/or third party material.
1.3 “Deliverables” refers to the services and the product of the work performed, as a result of a mutual agreement between the CLIENT and BANZZU, which must be delivered by the provider to the client.
1.4 “Final Deliverables” refers to the final versions of the Deliverables provided by BANZZU approved and accepted by the CLIENT.
SECOND – OBJECT OF THE CONTRACT.
The object of this contract is the use of the software provided by BANZZU in accordance with the content provided by the CLIENT, together with the final artwork provided by BANZZU which will give rise to the Final Deliverable – Software Banzzu, according to the chosen subscription.
From this moment on, the CLIENT subscribes to the software maintenance service provided by BANZZU, which consists of the hosting and lodging of all the information packages included in the same, resolution of incidents without involving the modification of the functionality or features in question, as well as the consultations and contacts for the resolution of the same or other issues.
The provision of services subject to this Contract will be carried out by BANZZU following, in any case, the guidelines set forth based on the needs of the CLIENT, which will, in turn, necessarily determine the scope, form and content of the provision of the contracted service. In any case, BANZZU will provide the service with total autonomy and independence with respect to the CLIENT and inattention to the degree of specialization and diligence which characterizes it, in accordance with the uses and customs of its sector of activity.
THIRD – MODIFICATIONS AND EXTENSIONS OF THE OBJECT.
BANZZU may modify the Agreement due to changes in the Services, to take into account the evolution of the law or for any other reason. When material modifications are made, BANZZU may (and when required by law will) send you an email to the last email address you provided to us pursuant to the Agreement to provide you with an updated copy of the Agreement. BANZZU may require you to consent to the updated Agreement in a specific manner before allowing further use of the Services. If you do not agree to any change(s) after receiving notice of such change(s), you must stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of those changes. PLEASE CHECK THE BANZZU WEBSITE REGULARLY FOR THE CURRENT TERMS.
FOURTH – SOFTWARE FEES.
The amount of the entrance fee, as well as the fees related to the monthly subscription, if any, will be established according to the plan you have chosen.
The accrual of the first subscription service fee, if any, will occur when the software is made available.
In case of non-payment of the mentioned fees by the CUSTOMER, the service will be temporarily suspended by BANZZU and will not be resumed until the fees are paid. The cessation of the service derived from this cause shall not be claimable by the CLIENT. The previous stipulation operates without prejudice to the accrual of interest for late payment referred to in Law 3/2004. In the event that this law is not applicable, the interest for late payment will be 4 basic points above the legal interest rate published by the Bank of Spain and calculated on the unpaid amounts from the date of non-payment to the date of full payment.
The payment of the prices of the contract will be made by bank card, BANZZU will make the requirement of the initial and monthly amounts, in case they exist, in an automatic way and will make available to the CLIENT the means to make the payment.
The amount agreed upon as a price has been set without taking into consideration, that is to say, not including the Value Added Tax or any other that, in its case, would replace it.
The reference to the Value Added Tax shall be understood as being made to the Canary Islands General Indirect Tax and/or the Tax on Production, Services and Imports in the Cities of Ceuta and Melilla, in those territories where these tax figures apply, or to any other tax figures that may come to replace the previous ones.
The price established in this clause is fixed for the purpose of providing the service object of this Contract. If the services are modified or extended, the CLIENT and BANZZU agree to negotiate the new price for the services.
FIFTH. – DURATION OF THE SOFTWARE CONTINUITY SERVICE.
The software maintenance service offered by BANZZU described in the second clause, shall not have a minimum duration. The CUSTOMER may withdraw from the continuity contract when he/she deems it appropriate. If the CLIENT fails to pay the price for this service, BANZZU reserves the right to cancel the CLIENT’s subscription.
SIXTH – BANZZU’S OBLIGATIONS
BANZZU undertakes to provide the services for which it is contracted in a diligent manner and in accordance with the professional uses and customs typical of its sector of activity.
Likewise, BANZZU undertakes to provide the services within the dates and/or terms agreed upon with the CLIENT.
SEVENTH – OBLIGATIONS OF THE CLIENT
The CLIENT is obliged to pay the price as it results from this Contract.
The CLIENT agrees to inform or deliver all useful and/or relevant and truthful information for the proper performance of the services. Especially, those data or information related to their particular needs and which would contribute to an optimum provision of the services by BANZZU.
Likewise, the CUSTOMER undertakes to collaborate with BANZZU during the development of the service provision, not opposing any impediment to such provision. The CLIENT acknowledges having been informed, prior to the signing of this Agreement, about the essential characteristics of the provision of the services subject to this Agreement and/or all information about how and/or under what conditions they are provided or performed, in addition to any other pre-contractual information that may be necessary.
EIGHT – RESOURCES AND/OR MATERIAL FOR THE PROVISION OF SERVICES
BANZZU shall use, for the performance or rendering of the services herein agreed upon, the adequate material means and, if applicable, its own working staff, who shall perform their functions using the most adequate materials, and following the instructions issued by BANZZU in accordance with the obligations assumed by the present Contract towards the CLIENT. BANZZU also undertakes that such personnel destined to provide the contracted services are aware of the particular needs of the CLIENT in relation to such contracted services.
In particular, BANZZU undertakes that the persons or employees, who may be assigned to the development of the contracted services, have the appropriate qualification and experience to carry out the agreed-upon work. Likewise, they are aware of the content of the clauses relating to intellectual property, confidentiality, and the treatment of personal data established in the Contract, as well as their personal obligation to respect them.
NINTH – RELATIONSHIP OF A COMMERCIAL NATURE
The relationship of the parties signing this contract is exclusive of a commercial nature, and there is no labour relationship between BANZZU and the CUSTOMER, or, if applicable, the personnel working for the latter.
The CLIENT also expressly waives the right to hire, directly or through third parties, any employee or collaborator of BANZZU until the end of the contract and no less than one year after the end of the contract.
The parties reiterate that BANZZU is an independent contractor, not an employee of the Client or of any company affiliated to the Client. BANZZU must perform the Services under the general direction of the CLIENT, but BANZZU will determine the means and forms of performing the Services. This Agreement does not create any type of partnership, and neither Party is authorized to act as an agent or liaison for the other Party, except as expressly provided in this Agreement. All rights, if any, granted to the CUSTOMER are contractual in nature and are fully defined by the written agreement between the Parties and the terms and conditions described in this Agreement.
TENTH. – LIABILITY AND INDEMNIFICATION.
Any of the Parties that act in a negligent or guilty way in the fulfilment of the obligations established in this Contract and causes with it damage or harm to the other Party will incur in responsibility. The Party that has to face any type of damage or prejudice by virtue of the action of the other Party may claim compensation for the damages caused.
Specifically, the CLIENT agrees to indemnify and safeguard BANZZU for any damage, liability, cost, loss or expense arising from any claim, demand or action by a third party resulting from any breach of the CLIENT’s obligations, responsibilities, representations or guarantees under this Agreement.
BANZZU shall provide the services subject to this Agreement with the due diligence and quality, undertaking to assume the responsibility for the errors, defects or delays produced in its execution, or its incorrect execution or non-execution. However, BANZZU shall not be liable for the errors, defects or delays produced in the execution, or the incorrect execution or non-execution of the Contract, when this arises from the omission or falsification of any information, document or data provided by the CLIENT; neither shall BANZZU be obliged to verify the authenticity and suitability of such data or information.
None of the Parties may be held responsible for a delay, defect or error in the execution of its contractual obligations when these are due to or caused by a cause of force majeure. However, the Parties are obliged to notify the other Party when they become aware that a cause of this nature has occurred and will affect the correct performance of their obligations.
Force majeure” shall mean flood, fire, explosion, breakdown of the service provider’s facilities, lockout, strike, civil disturbance, blockade, embargo, mandate, law, order, regulation, theft, ordinance, demand or request by any Government or any subdivision or representative thereof, or any other cause, which is beyond the control of the Party involved, without the lack of funds being understood to constitute a cause of force majeure.
TWELVE. – DATA PROTECTION
The Parties to this Contract are aware of and undertake to comply with Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (RGPD), as well as Organic Law 3/2018 on the Protection of Personal Data and the guarantee of digital rights and its implementing regulations, and/or those that may replace or update them in the future.
In this way, the Parties are aware that by signing this Contract they consent that their personal data collected in this Contract, as well as those that could be collected in the future in order to comply with or correctly execute this Contract, could be incorporated by the other Party into its own automated or non-automated data collection file in order to correctly execute the contractual relationship and, eventually, for administrative and/or commercial management.
In any case, the Parties agree that these personal data will not be communicated in any case to third parties, although, if it were the case that some kind of communication of personal data would be made, they always agree to request the express, informed, and unequivocal consent of the Party that owns such personal data, indicating the specific purpose for which the communication of data will be made.
This clause does not result in any limitation or restriction for the Parties with respect to the exercise of the rights of access, rectification, suppression, limitation of treatment, portability or opposition that they may have.
Regarding the personal data to which BANZZU has access as a consequence of the provision of the service object of this Contract, they are the exclusive property of the CLIENT and shall be understood to be voluntarily provided by him/her, and shall only be used for the purpose of providing the services required in the Contract, and BANZZU undertakes not to apply them or use them for any purpose other than the one agreed upon and not to communicate them to other persons, not even for the purposes of conservation, being also obliged to return to the CUSTOMER the files, automated or not, of personal data to which he had access, when required by the CUSTOMER, and / or proceed to the destruction of the media and / or documents containing such data at the end of this contract, and in any case, the expiry of this contract.
It is reiterated that in any case, BANZZU undertakes that the treatment of the personal data to which it has access due to the provision of the services object of the present Contract, and of all the information in general provided by the CLIENT, will be carried out maintaining the strictest professional secrecy and absolute confidentiality regarding the data, as well as to diligently comply with the duty of guard and custody imposed by the RGPD and the LOPD.
These duties shall be enforceable against BANZZU during the term of the present Contract and even after the termination for any cause whatsoever, being liable before the CLIENT for the breach of the obligations herein assumed.
Likewise, BANZZU undertakes to adopt the necessary technical and/or organizational measures to protect the personal data to which it has access and to avoid its alteration, loss, treatment and unauthorized access, in accordance with the RGPD, the LOPD and its complementary development regulations.
THIRTEENTH – PROJECT OWNERSHIP
Once the services have been performed and all fees have been paid, BANZZU does not assign the CLIENT the property right, nor the copyright, over any work or design comprising the works performed by BANZZU, that is to say, the CLIENT expressly acknowledges and accepts that the Project is of exclusive ownership of BANZZU, and in case of contractual resolution, the Project will remain under the ownership of BANZZU.
The CLIENT authorizes BANZZU to reproduce, publish and exhibit the Final Deliverables in BANZZU’s portfolio and websites, galleries, and other media with the sole purpose of recognizing creative quality or commercial advancement, and to be credited with the authorship of the Final Deliverables in relation to such uses.
All CUSTOMER Content, including any pre-existing trademarks and copyrighted material, shall remain the property of the CUSTOMER. The CLIENT hereby allows BANZZU a non-exclusive, non-transferable license to use, reproduce and modify the CLIENT’s Content in order to support the development of the services and deliverables generated by BANZZU.
All third party material is the exclusive property of their respective owners. BANZZU will make available to the CLIENT, when requested, all information related to the Third Party Material that may be required to perform the Service or integrated in the Final Project. However, BANZZU will not be responsible for any possible incidents that may arise from the Third Party Material.
FOURTEENTH – GUARANTEES.
The CLIENT guarantees and declares to BANZZU that either it possesses all the rights, titles and interests of the Content of the CLIENT, or it has full rights and authority to allow the use of the Content of the CLIENT. It also guarantees that neither the CUSTOMER Content nor any trademark in relation to the Project infringes or will infringe upon the rights of third parties.
On the other hand, BANZZU guarantees and declares to the CLIENT that the entity will provide the development Services and produce the Deliverables mentioned in the Contract in a professional manner and in accordance with all professional standards for such services. Furthermore, it is guaranteed that the Final Deliverables will be original work of BANZZU and that the Final Art does not infringe the rights of third parties, and the use of these in relation to the Project does not violate the rights of third parties.
FIFTEENTH. – ASSIGNMENT OF THE CONTRACT.
The Parties may not assign their position in the present Contract, nor the rights or obligations arising from it in their favor or at their expense, without the prior, express and written consent of the other Party.
In case of transfer, absorption, sale or any other circumstance similar to those described, with respect to the company of the CLIENT that bases the object of the provision of services included in this contract, the CLIENT adopts the commitment to compel the acquirer of the company to subrogate itself in the position of the CLIENT, at least, during the remaining time of validity of the contract, otherwise, the CLIENT will be obliged to pay the remaining unsatisfied amounts until the hypothetical termination of the service.
SIXTEENTH – CAUSES FOR RESOLUTION
The Parties agree to comply with the obligations arising from this Contract for each of them in the terms and conditions established throughout the same.
In the event that the CUSTOMER fails to comply with any of the obligations of the Contract, or fails to comply with them in a defective manner, BANZZU may consider that there has been a breach of the contract in the terms established by Article 1.124 of the Civil Code, if within 10 working days it does not repair such breach, it is then entitled to choose between terminating the Contract or demanding its compliance, claiming, in both cases, the corresponding compensation for damages.
In addition, the Contract shall be considered resolved by the definitive or provisional insolvency, suspension of payments, bankruptcy, insolvency proceedings, and/or liquidation agreement of any of the Parties.
Likewise, it will be cause for termination of the Contract when BANZZU stops providing the services or part of the services that are part of the object of this Contract. It shall be understood that BANZZU has ceased to provide the services when such activity is not carried out regularly or with the material and personal means adequate to it.
The lack or delay of payment of invoiced services by the CLIENT shall entitle BANZZU to terminate the Contract and, if it deems it appropriate, to proceed to its claim according to the Law.
In the latter case, when the Contract is terminated by the CLIENT’s will, the CLIENT shall, nevertheless, pay BANZZU any accrued and unpaid invoice for the services rendered during the time the Contract has been in force, as well as an indemnification for damages equivalent to the payment of the remaining fees to be paid, provided that the CLIENT exercises his/her will without respecting the notice and method of notification established herein.
SEVENTEENTH – NON-EXCLUSIVE AND ADDRESS FOR SERVICE.
The Parties recognize that this Agreement does not create an exclusive relationship between the Parties. The Client is free to require others to perform services of the same or similar nature as those offered by BANZZU, and the service provider is free to offer and provide its services to others, to seek new clients, and to advertise the services offered by BANZZU.
In order to make any notification between the Parties arising from the present Agreement, they agree that their domicile for the purposes of the same shall be the addresses indicated at the beginning of this Agreement. In order for a notification between the Parties to be validly made, it must be made by a reliable means which leaves a record of the time at which it was sent, to which address it was sent, and the time of its receipt by the other Party. When there is a change in the address for notification purposes, this new information must be communicated, as soon as possible, to the other Party and following the procedure established herein.
EIGHTEENTH – INTEGRITY OF THE CONTRACT AND ANNULMENT
This Agreement supersedes all previous agreements, understandings, commitments and/or negotiations between the Parties. Likewise, the Parties recognize that, in case of existing, annexed and/or attached documents to the present Contract, these form part or integrate the same one, to all the legal effects.
In addition, if one or several clauses become ineffective or are void or null, they will be considered not included, maintaining the rest of the Contract all its binding force between the Parties. In this case, the Parties undertake, if necessary, to negotiate in an amicable manner and/or in good faith a new text for those clauses or parts of the Contract affected.
NINETEENTH – LEGAL ACTIONS, APPLICABLE LAW AND JURISDICTION
The Parties recognize that they are bound by the present Contract as well as its corresponding Annexes, if any, and its legal effects, and they undertake to comply with it in good faith.
Any dispute relating, especially, but not only, to the formation, validity, interpretation, signature, existence, execution or termination of this Contract and, in general, to the relationship established between the Parties, shall be subject to Spanish law.
For any litigious question or, in general, discrepancy that arises in relation to the obligations of each party derived from the present contract or in the interpretation, fulfillment, breach and execution of any stipulation of the same one, if it is not solved by mutual agreement, the parties are submitted, with express exclusion of jurisdiction, to the Courts and Tribunals of Seville.
TWENTY. – FINAL CLAUSE
By their execution, the parties have agreed to all the terms and conditions of this Agreement effective as of the last date of signature, and each signatory declares that it has full authority to enter into this Agreement and to bind its counterpart to all the terms and conditions hereof.
TWENTY-FIRST – VARIOUS
21.1 Marketing. The Customer agrees that BANZZU may refer to the Customer by its name and trademark in BANZZU’s marketing materials and website. The Customer acknowledges and agrees that BANZZU does not certify or endorse, and is not obligated to certify or endorse, any of the Customer’s products, services, or content.
21.3 Export. The Customer agrees not to export, re-export or transfer, directly or indirectly, any technical data acquired from BANZZU, or any product using such data, in violation of export laws or regulations.
21.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.
21.5 Remedies. The Customer acknowledges that the Services contain valuable trade secrets and proprietary information of BANZZU, and that any actual or threatened breach by the Customer of its obligations with respect to BANZZU’s Intellectual Property Rights will constitute immediate and irreparable damage to BANZZU for which monetary damages would be an inadequate remedy. In such a case, BANZZU shall have the right to seek immediate injunctive relief without the need to post a bond.
21.6 No Assignment. The customer may not assign its rights or delegate any of its obligations hereunder without the express prior written consent of BANZZU. Any assignment by the customer without the prior written consent of BANZZU shall be null and void. BANZZU may assign its rights or obligations hereunder without prior notice or consent; provided, however, that the services shall continue to operate as specified in this agreement. This agreement shall inure to the benefit of each party’s permitted successors and assigns.
21.7 Notices. Where BANZZU requires you to provide an e-mail address, you are responsible for providing BANZZU with your most recent e-mail address. In the event that the last e-mail address you have provided to BANZZU is invalid, or for any reason is not capable of delivering to you the notices required/permitted by the Agreement, BANZZU’s delivery of the e-mail containing such notice shall nevertheless constitute effective notice. You may give notice to BANZZU at the following email address: firstname.lastname@example.org. Notice shall be deemed to have been duly given on the first business day following the successful transmission of the e-mail to BANZZU. Translated with the free version of the Translator from DeepL.
21.9 Questions, Complaints and Claims. If you have any questions, complaints or claims regarding the Services, please contact us at email@example.com. We will make every effort to address your concerns.
Version updated to: September 07, 2020