Elespacio standard terms of business
Status
These Standard Terms of Business (these “Terms”) form an integral part of the agreement between you and Elespacio Comunicación Visual SL of C/ Escudellers, 10 bis, entresuelo 1. 08002 Barcelona, Spain with tax and company ID number ES-B64013386 (“Elespacio”) for the provision of the services and deliverables to be provided by Elespacio for you as Elespacio’s client. Such services and deliverables shall be set out in written Statement(s) of Work, Retainer(s), or other engagement letter(s) or agreement(s) (“SOW(s)”). These Terms apply to all services and deliverables undertaken by Elespacio, except to the extent expressly excluded or amended by agreement in writing. These Terms shall remain in effect for the entire duration of all SOWs between Elespacio and you (and any provisions by their context intended to survive such duration shall so survive).
Scope of Services and Project Plan
The entire scope and duration of the services to be undertaken for you and all deliverables, as well as the fees and payment schedule, shall be exclusively as specified in the applicable SOW(s). Any changes to the scope of services or deliverables or additional or follow-up services, deliverables, later additions or amendments to deliverables, or iterations beyond the number permitted under any SOW, must be agreed in a new SOW or an amended SOW.
Timelines
The milestones and phases that Elespacio and you have agreed on for Elespacio’s work for you are as set out in the SOW. All timelines are dependent on provision by you of all documents, Content, approvals, feedback and other information reasonably required by Elespacio for the provision of the services and creation of the deliverables. Elespacio will use all commercially reasonable endeavours to meet any agreed timelines but due to the nature of the work they are estimates only.
Client Content
You hereby grant Elespacio a non-exclusive, non-transferable license to use, reproduce, modify, display and publish all texts, images, audio/visual, databases, code or other content (“Content”) you provide to Elespacio for the purposes of providing the services, creating and delivering the deliverables and fulfilling the provisions of the SOW(s) and these Terms.
Client Data
Each party shall comply with all applicable laws and regulations in relation to the processing of personal data processed in the course of such party’s performance under the Agreement.
Where any of the services involve personal data that either:
(a) you provide to Elespacio, e.g. for performance measurement, retargeting or any other reason,
or
(b) Elespacio collects on your behalf, e.g. on landing page hosted by Elespacio:
then in relation to such data, you acts as data controller and Elespacio acts as a data processor. Elespacio will process such data only in accordance with your instructions, ensure that staff processing it are bound by confidentiality obligations, apply appropriate security measures to prevent data breaches, only engage any other data processor in accordance with applicable laws, assist you with responding to requests for exercise of legal rights by end users, as well as with any data breach or required impact assessment, regulatory consultation, or audit, return or delete the data on completion of the services (except retention is required by applicable laws), and in general cooperate with you as required to comply with applicable laws.
Acceptance
Elespacio will provide the services and deliverables to you in agreed form, normally as digital files, including through Elespacio’s project management applications (e.g. Basecamp). If you wish Elespacio to use any cloud storage, dropbox or similar delivery method then you will bear the costs of this and accept that the confidentiality and security of such systems are not guaranteed (subject to anything offered by the relevant provider).
After delivery, you will examine and test the services and deliverables and notify Elespacio of any non-conformity with the requirements under the relevant SOW, or if applicable any separate acceptance criteria which must be mutually agreed in writing. Elespacio will endeavour to rectify such non-conformity as soon as practicable and in accordance with any agreed timetable. Unless any other process is set out in the SOW, the services and deliverables will be deemed to be accepted upon the earliest of: (i) indication by you of such acceptance; (ii) live use by you of the deliverables; or (iii) twenty days after provision or delivery (including delivery of any fixes or amendments provided in accordance with this paragraph). This also applies to any interim deliverables or milestones.
Other services
After acceptance, Elespacio will provide the final deliverables to you. You will be responsible for registering any required domain names, selecting a hosting provider (including web and email hosting if required), and paying all associated fees and expenses. If under the SOW Elespacio is required to assist with implementation or uploading then you must grant Elespacio access to the relevant accounts as required. Unless specifically otherwise agreed in the SOW, optimization, configuration, media purchases, printing, software or content licences, merchant or payment facilities, and any other services are out of the scope of the services and deliverables and associated budgets.
Payment
Fees, charges, and expenses exclude VAT/IVA or any other sales or similar taxes, which may be added to Elespacio’s invoices as applicable. You will pay Elespacio all fees, charges, and expenses set out in each SOW, plus any applicable taxes, in accordance with the payment schedule agreed in the SOW without set-off or reduction for any reason. If no other period is stipulated then invoices will be payable within thirty days of receipt. If the services or deliverables require Elespacio to obtain any third-party materials (e.g. domain names, stock photos, or CMS or other software) or book any media or other third party services or licences you will pay directly or reimburse to Elespacio all costs charged by such third party.
Failure to pay any fees, charges, expenses, or applicable taxes in full by the due date will entitle Elespacio to:
(a) suspend the relevant campaign and all work under any SOWs then in effect;
(b) withhold any work in progress and prevent you from accessing it;
(c) charge interest at the statutory rate applicable to commercial transactions plus if applicable Elespacio’s actual costs of debt recovery; until all such fees, charges and expenses are paid, without prejudice to any other rights Elespacio may have.
If you ask Elespacio to make changes to or do other work for you that is not covered by the SOW, additional fees, charges and expenses will be chargeable in addition to those agreed in the SOW.
Assignment of Rights
You understand and agree that until you pay Elespacio in full for all fees, charges, expenses and taxes due under each SOW, Elespacio owns all rights to everything Elespacio creates for you under such SOW.
After you pay Elespacio in full, Elespacio assigns to you all right, title and interest in the text, image, sound, audio/visual, reports, or data deliverables that Elespacio creates for you under the relevant SOW, except for (i) any software and code (including without limitation front-end, back-end, interfaces, integrations with any API and any code used to develop apps for mobile devices and/or tablets) and any existing property, knowhow, development tools, programs, data or Content of Elespacio used in the creation of the deliverables (to which you will enjoy a non-exclusive, worldwide licence for use in connection with those deliverables); and (ii) any software, code or Content sourced from a third party (to which the third party license terms will apply).
You agree that Elespacio may use your name/company name/trademarks and a general description of the work undertaken under the SOWs as a reference in Elespacio’s promotional materials.
Termination
You or Elespacio may terminate any or all SOWs immediately if:
(a) the other party breaches its obligations under these Terms or an SOW and if such breach is capable of remedy has not remedied it within ten days of written notice to do so;
(b) there is a financial or reputational risk to the terminating party; or
If one party proposes a change to any SOW and the parties are unable to agree the costs, timing or other aspects of such change and the proposing party is unwilling to revert to the agreed SOW then either party shall be entitled to terminate such SOW.
Upon termination of these Terms or any SOW, you must pay Elespacio for all services and deliverables carried out up to the effective date of termination and expenses paid or contracted by Elespacio prior to termination, upon which Elespacio will deliver to you all services and deliverables completed or in progress in electronic format.
Warranties
Elespacio represents and warrants that:
(a) the services and the deliverables (excluding items provided by you or licensed by third parties) as provided do not violate the patent, trademark, copyright, trade secrets or other property or personal right of any person; and
(b) the services will be carried out with all due care and skill of a competent provider of website and digital marketing services.
You represent and warrant that:
(a) you have or have obtained all rights to provide to Elespacio and use within the services and deliverables all Content provided by you or on your behalf and no such Content will violate the patent, trademark, copyright, trade secrets or other property or personal right of any person;
(b) all Content and campaign materials relating to your products or services are accurate and comply with all applicable laws;
(c) you have all necessary authorizations and consents to enter into the agreements with Elespacio including these Terms and all SOWs.
(d) you have all required opt-ins, consents or other valid legal basis to collect (including where applicable via cookies or similar technologies), process and provide data to Elespacio for processing as referred to above under the section entitled “Client Data”, in accordance with all applicable personal data protection and e-privacy laws (including where applicable the EU General Data Protection Regulation), regulations and binding industry standards, and have kept all necessary records, provided all necessary information to end users, and made all necessary notifications, disclosures and filings.
You agree to indemnify and hold Elespacio harmless in relation to all claims and losses resulting from a breach of your warranties set out in these Terms or any SOW.
Save as expressly set out in these Terms or the applicable SOW, all other warranties or other terms are hereby excluded to the maximum extent permitted by applicable law. In particular, unless expressly agreed in writing, Elespacio makes no warranty in relation to any performance, engagement, or other benefits that may arise from the services or deliverables.
Limitations of Liability
Neither party will be liable for any delay or failure to perform arising out of any matter outside its reasonable control, as long as the affected party as soon as practicable notifies the other party and resumes performance of all current SOWs.
Elespacio shall not be liable to you for any indirect, consequential, incidental, special, punitive, or exemplary loss or damage arising out of or in connection with these Terms or any SOW, nor future economic losses, loss of business, profits, goodwill or reputation, even if Elespacio has been advised of the likelihood of such damages. Elespacio’s aggregate liability for any loss or damage arising out of or related to these Terms or any SOW (including, but not limited to, claims for breach of contract, breach of warranty, negligence, strict liability, or tort) shall be limited to the amount of the fees paid by you to Elespacio under the relevant SOW.
Nothing in these Terms or any SOW shall limit or exclude the liability of any party for death or personal injury, fraud or deliberate wrongdoing, or any other liability that cannot be excluded under applicable laws.
Confidentiality
Any agreement regarding non-disclosure and restricted use of confidential information between the parties shall remain in effect and shall apply to information disclosed in connection with these Terms and the SOWs and if necessary shall be deemed to be extended to cover the duration of all SOWs.
In any event, each party shall keep confidential and secure all information regarding the business of the other party received in connection with these Terms and all SOWs and shall not disclose it to third parties (except for affiliates, representatives or consultants who need to know it for the purposes of the work under these Terms or any SOW) or use it for any other purpose. This shall not apply to information that is already public, that is already in the possession of or independently generated by the other party, or that needs to be disclosed by law or by order of a court or regulator. Use of third-party tools or processors to process information shall not be a breach of this section, provided that the party using such tools or processors ensures that each relevant third-party also complies with the provisions of this section.
Non-Solicitation
Neither party shall solicit the other’s employees, independent contractors, or consultants or engage them in any work independent the parties’ relationship under these Terms or the applicable SOW during the term of the SOWs and for two years thereafter.
General
Entire Agreement: These Terms and the SOW(s) as well as any agreement relating to non-disclosure and restricted use of confidential information constitute the complete agreement between you and Elespacio concerning the services and deliverables, and supersede all other prior agreements, proposals, and representations, whether oral or in writing. Your standard terms or any other terms you present are excluded except where accepted in writing by Elespacio. You or Elespacio can only modify these Terms or any SOW in writing signed by both parties.
Assignment and Subcontracting: Neither party may assign or transfer its rights or obligations under these Terms or any SOW to any third party without the prior written consent of the other party (except to a group company of the relevant party for which no consent will be required). Elespacio may use subcontractors for performance of any part of the services or deliverables in its discretion.
Independent Contractors: You and Elespacio are independent contractors and not joint venturers, partners, employer and employee, or principal and agent.
Severability: If any provision of these Terms or any SOW is or becomes illegal or unenforceable, then that shall not affect any other provision, and the remainder of these Terms and all SOWs shall remain in full force and effect.
No Waiver: No failure or delay by a party to exercise any right, remedy, power or privilege under these Terms or any SOW shall operate as a waiver. Any waiver must be in writing and will apply only to the particular circumstance and not generally.
Third parties: No third party who is not a party to these Terms or any SOW shall be entitled to enforce them or claim any benefit under them.
Law and Jurisdiction: This agreement between you and Elespacio is governed by and construed in accordance with the laws of Spain and for all disputes, to the extent not settled amicably, you and Elespacio submit to the exclusive jurisdiction of the courts of Barcelona, Spain.