I.- That the Client has signed with the Group Pulpo formed by PULPOMATIC, S.L., C.I.F B-87371944 with address in Spain, PULPOMATIC, S.A.P.I. de C.V., RFC PUL160902VB3 with address in Mexico, and PULPOMATIC S.A.S NIT 901198442 with address in Colombia (hereinafter "Pulpo") a Licence Agreement for the Use of the Solution Pulpo (hereinafter the "Agreement") accepting the Particular Conditions described in the said Agreement. Client and Pulpo shall be jointly referred to as the "Parties" in these General Conditions of Use of the Platform (hereinafter "General Conditions").
II.- That the Client in the said Contract has accepted these General Conditions and that, by accepting them, they represent a contractual commitment for the Parties.
III.- That Pulpo will notify the email address provided by the Client in the Contract of any changes to these General Conditions.
III.- That will notify the Client in the email address provided by the Client in the Contract of any changes to these General Conditions. III. That Pulpo has developed a software solution (hereinafter, the "Solution") for Fleet Management in the cloud for the management of vehicle fleets, and that the Client is interested in the use of said Solution.
IV.- That the Client has contracted part or all of the Solution by signing the Contract and therefore the purchase of licences or subscriptions. The details of the functionalities contracted and their price are reflected in the Contract.
V.- That in view of the above, the Parties subscribe to the present General Conditions of Licence for the use of the Solution in accordance with the terms and conditions set out in the following,
1. Subject matter of the Agreement Under the Agreement, Pulpo grants the Customer a non-exclusive, non-transferable and revocable licence, revocable in the event of breach by the Customer of the obligations under point 4 ("Customer's Obligations") of these General Terms and Conditions, for the term set out in the Agreement, to access and use the services of the Solution for the trademarks specified in the Agreement.
The License shall consist of providing access to the web solution of Pulpo from where the use of the tool is permitted, without requiring local delivery and installation as well as maintenance of a software on the Client's equipment and therefore its use and configuration is done through any of the following browsers: Google Chrome, Mozilla Firefox, Microsoft Edge.
Pulpo will provide the Client with the user keys and passwords to access the Solution as detailed in the Contract.
In order to contract any module, it will be essential to contract the standard solution of the Solution.
2. Duration Without prejudice to the provisions of the Contract, which shall prevail over this clause in case of doubt, the Contract shall be understood to be extended for successive periods of 12 months unless either of the Parties notifies the other in writing within 45 days prior to the end of the initial period or any of its extensions. The price for subsequent renewals shall be the price in force at Pulpo at the time of renewal.
The Customer shall respect the period contracted in the Contract and may only terminate the Contract at its end. If the Customer decides to terminate the Contract during the term of the Contract, Pulpo will not refund the agreed amounts and will invoice the Customer for any unpaid balance of the Contract. If the Contract is terminated before the agreed period due to total or partial non-payment of the price of the contracted service, Pulpo may demand as a penalty clause the payment of an amount equal to the outstanding monthly invoices.
3. Obligations of Pulpo By virtue of the provisions of the Contract and these General Conditions, Pulpo acquires the following obligations:
To facilitate access to the Solution on a non-exclusive basis, by granting the Client a licence to use it.
To guarantee to the Client the peaceful use of the Solution, in its capacity as owner of all intellectual and industrial property rights of the Solution, either because it is the exclusive owner or because these rights have been transferred to it by the legitimate owners of the same.
To guarantee the operation and maintenance of the Solution and its uninterrupted continuity, using all technical means at its disposal.
However, this guarantee will not apply in the event of an act of God or force majeure that implies the interruption of the service or in the event of failures, interruptions, crashes, erroneous or failed connections or any other type of problem that affects the electricity supply or telecommunications services contracted by both Pulpo and the Client or any other technical eventuality that is beyond the will and control of Pulpo.
Furthermore, Pulpo reserves the right to modify the Solution and its databases, as well as the systematisation of the data provided and the technical characteristics of access and transmission. Where such changes do not permit backward compatibility, Pulpo shall notify the Customer at least one month in advance. It also reserves the right to partially or totally interrupt access to the Solution, for as short a period as possible, due to maintenance of the Solution, technical changes or breakdowns, giving prior notice to the Client.
To retain and use the non-personal data of the Client and its clients for the Solution itself during the term of the Contract and up to 36 months after its termination.
To attend to technical incidents and other questions raised by the Client in relation to the provision of the service by e-mail to email@example.com, from Monday to Friday from 8:00 to 17:00 Mexico City time.
4. Obligations of the Client By virtue of the provisions of these General Conditions, the Client acquires the following obligations:
The Client shall pay Pulpo for the provision of the services, in accordance with the terms and conditions established in the Contract.
In the event of non-payment by the Client of any amount invoiced under the Contract, Pulpo shall be entitled to suspend the contracted services until the amounts owed have been paid in full. The period of time during which the services are suspended shall be deemed to have expired. Once the debt has been settled, the Customer shall not be compensated for the time during which he/she was unable to use the Solution.
The Customer undertakes to use the Solution for his/her own use and for the period of time contracted for the number of keys granted by Pulpo as set out in the Agreement. Therefore, the licence to use the Solution may not be used by the Client to be sublicensed to third parties under any commercial or free form, and the Client is prohibited from using the Solution and, in general, any of the services of Pulpo for any purpose other than that agreed in the Contract.
The user keys and passwords provided to the Client by Pulpo are considered personal and non-transferable, and therefore the communication or transfer of access data to other individuals or organisations is strictly prohibited.
The use, storage, security, transfer and confidentiality of these keys are the responsibility of the Client. The Client assumes that he/she is solely responsible for all activities that occur under his/her passwords, and is consequently responsible for the dissemination of the same by his/her employees or third parties. Pulpo shall not be liable in the event of unwanted or fraudulent access due to a lack of diligence or improper use by a person not authorised by the Client or by its users. The Client shall immediately notify Pulpo upon becoming aware of any unauthorised use or access of the services and provide all reasonable assistance to Pulpo to terminate such unauthorised access or use.
The Client shall be solely responsible for any consequences that may arise from such unauthorised use.
Customer shall not:
(i) reverse engineer the statistical algorithms contained in the Solution, disassemble or decompile the software application, or otherwise attempt to obtain the source or modifiable code; nor
(ii) access or interfere with the Solution or the website used by Pulpo to present the Solution, by means of software robots, spiders, routines or any automated or semi-automated system to monitor, copy or download its contents for any other unauthorised purpose without prior written permission from Pulpo ; nor
(iii) interfere with the proper working of the Solution and, in particular, you must not attempt to circumvent security, License control or other protection mechanisms, or sabotage, hack into or otherwise disrupt the Solution or any website, computer system, server, router or other internet connection device; or
(iv) take any action that may impose unreasonable or disproportionately large burdens on the data transfer infrastructure of the service; or
(v) use the Solution in any manner, for any purpose or with any effect contrary to law, morality, generally accepted principles of morality or public policy.
It is hereby stated that the obligations set forth in this clause must also be fulfilled by the Customer's employees, who shall take the necessary measures to do so.
In the event of breach by the Customer of any of the obligations set forth in this clause, Pulpo reserves the right to cancel the Licence for use, cancel the access codes and the supply of the information and claim the damages caused.
5. Third party services Pulpo may collect information about users' use of the application for the purpose of maintaining the system and improving the user experience.
In the event that a third party data or information provider ceases to provide Pulpo with access to its data, Pulpo shall not be liable for any problems in the operation of the Client that may result from such action by a third party. This clause also applies to the integrations described in the Agreement.
6. Intellectual and Industrial Property Pulpo is the Author and Creator of the software, applications and contents of the Solution, as well as the exclusive owner, with the capacity to transfer to third parties, of all the contents shown in the Solution or on the Website Pulpo and in particular, designs, texts, images, logos, icons, buttons, software, commercial names, brands, or any other signs susceptible of industrial and/or commercial use, therefore, any act of reproduction, distribution, transformation or public communication is expressly excluded, as well as any type of transfer, of all or part of the content of this site, and in general of any object that according to current legislation is protectable by intellectual property regulations.
The signing of the Contract does not imply in any case the acquisition by the Client of the intellectual or industrial property rights related to the services or contents offered.
7. Know how and protection of business secrets For the development of the services offered by Pulpo, this company works with the information collected from the services offered to customers in order to offer better services and updates of the Solution, as well as new functionalities or improved features.
This information is collected and used solely and exclusively for the provision and improvement of the services themselves without at any time can identify customers directly or data of its operation. Likewise, Pulpo will not share and will at all times keep the Client's professional secret, and therefore confidential information relating to products, sales or operations of the same.
All actions carried out for the provision of the service are covered and protected by the so-called business secret, protecting and respecting the know-how to which Pulpo may have had access. In this sense, Pulpo will not use or exploit the information collected for purposes other than those set out herein, unless expressly agreed with the client at the appropriate time. The client is deemed to have been informed of these particularities and accepts them by signing the Contract.
8. Disclaimer and Limitation of Liability These General Terms and Conditions and the Agreement contain a lease of services with obligations of means and not of results. The information provided by the Solution may be used in making business decisions by the Customer, but shall never replace business judgment (which under the duties of care require several decision factors) and shall not involve any assumption of liability by Pulpo for the success of such decisions.
Pulpo , its employees, officers and directors shall not be liable for any indirect, special, incidental or consequential damages of any kind (including lost profits), even if foreseeable or even if the Parties have been advised of the possibility of such damages.
Pulpo makes no warranties, express or implied, with respect to the service and its contents, its quality, suitability or fitness for a particular purpose, accuracy, currency or completeness. In particular, Pulpo is not liable for any errors, omissions, non-updatedness or any statements made in third party content on its website.
The damages claimable under these General Terms and Conditions by each Party in relation to the other shall not include any amount for damages that are caused by a breach of the Contract that is due to causes beyond its control, or due to an act of God or force majeure. In particular, Pulpo shall not be liable for any possible failures or outages of telecommunications or electricity providers, either its own or suffered by the Client, as well as for erroneous or failed connections and any other technical eventuality that is beyond its will and control or that prevents the correct reception by the channel selected for the delivery of the information.
In any case, the possible liability of Pulpo towards the Client for all concepts shall be limited, as a maximum, to the amount paid by the Client as consideration for the service, excluding in any case indirect damages or loss of profits, loss of commercial income, data, failures in the transmission or reception of data, expenses for the replacement of goods, installations or services, capital expenses and other pecuniary losses derived from or related to the Contract.
9. Assignment of the Agreement The Agreement may not be assigned or transferred by the Customer except with the prior written approval of Pulpo.
10. Confidentiality The Parties agree that any information or material provided by either Party to the other under the Contract relating to the products and services, customers, business, accounts, finances, contracts, marketing plans, business opportunities, personnel, development or know-how shall be strictly confidential and proprietary, and shall be treated as such by the other Party and its employees, expressly undertaking to respect and ensure that the other Party and its employees respect such confidential nature, using for this purpose all the security devices, measures and procedures necessary to protect the Confidential Information except as otherwise expressly regulated in the Contract or in these General Terms and Conditions. Therefore, the Parties undertake to issue all appropriate instructions to their employees, who have access to the Confidential Information, in order to obtain their compliance and compliance with the same.
The duties of confidentiality arising from the provisions of the Agreement and these General Terms and Conditions and applicable to the receiving party shall be in force from the signing of the Agreement and shall survive the termination of its term.
Each of the Parties undertakes not to copy, reproduce or by any other procedure, transfer information or material provided by the other to third parties, as well as not to allow any other person, company or society, the copy, reproduction or disclosure, whether total, partial or in any way, of information or materials provided at any time, without the prior authorisation of the other party, expressly stated and in writing, except in the cases of exploitation of the information as regulated in the Contract and these General Conditions.
Notwithstanding the foregoing, the confidentiality obligations contained in this Clause shall not apply to information in respect of which the receiving party can demonstrate:
That it was in the public domain at the time it was disclosed to it.
That, after having been disclosed to it, it was published or otherwise became in the public domain, without breach of the obligation of confidentiality by the party receiving such information.
That it has been requested by the competent Administrative or Judicial Authorities that must rule on total or partial aspects of the same, in which case, the party that has to make the presentation must communicate it to the other party prior to said presentation taking place.
11. Data Protection In accordance with the provisions of the legislation in force in the United Mexican States ("Mexico")and in Europe regarding the Protection of Personal Data in Possession of Individuals, we inform you that your data obtained as a result of the provision of the service will be incorporated into the system owned by: - PULPOMATIC, S.L., C.I.F B-87371944 with address at Calle Monte Esquinza 30, 28010, Madrid, Spain. - PULPOMATIC, S.A.P.I. de C.V., RFC PUL160902VB3 with address at Calle Varsovia 36, Juarez, 06600, Mexico City, Mexico. - PULPOMATIC S.A.S NIT 901198442 with address at Calle 46 #50-67., Bogotá, Colombia. In order to carry out the maintenance, management, administration and control of the contracted services. In compliance with current legislation, the data will be kept for the legally established period.
With this clause, the Client is informed that their data will be communicated if necessary to: public administrations and all those entities with which communication is necessary in order to comply with the provision of the aforementioned service. That is, for legal or contractual reasons, where applicable.
Pulpo will proceed to process the data in a lawful, loyal, transparent, adequate, relevant, limited, exact and updated manner. That is why Pulpo undertakes to take all reasonable measures to ensure that they are deleted or rectified without delay when they are inaccurate.
In accordance with the rights conferred by current legislation on data protection, the Client may exercise the rights of access, rectification, limitation of processing, deletion, portability and opposition to the processing of their personal data and forgetfulness; as well as revoke the consent given for the processing of the same, by sending their request to the e-mail firstname.lastname@example.org.
12. Commercial use of customer data The Customer expressly authorises Pulpo to use its brand and corporate image for advertising purposes (i.e. on its commercial website, flyers, e-mails, interviews, conversations, press releases, etc.), solely and exclusively within the scope of its commercial activity.), solely and exclusively within the scope of the Agreement and these General Terms and Conditions.
In the event that the reports taken from the Solution are to be passed on to third parties or employees indirectly, the Client must state visibly on the reports that the origin of such information is Pulpo.
The Client, apart from the use of the logos, image and data for commercial purposes in accordance with these General Conditions, authorises Pulpo to incorporate its contact details in the database and to inform about news, or events in which Pulpo participates, collaborates or organises and about which the Client may be interested.
13. Notifications Any notification or communication shall be made by the Parties in writing and to the address set out in the Contract.
However, communications derived from the invoicing and payment of the service shall be made by e-mail to the addresses set out in the Contract.
14. Applicable legislation and jurisdiction The Contract and these General Conditions shall be governed by Mexican, Spanish or Colombian law according to the company with which the contract has been signed and shall be subject to the Courts and Tribunals of the same.