1.1. The purpose of this Contract is the provision of computing services (hereinafter the Services) by ETECNIC for the CLIENT, using the technology known as “cloud computing.”
1.2. The Services include making the ETECNIC-owned computing Platform available to the CLIENT via the Internet and in the mode known as “software as a service” (software as a service or simply SaaS).
1.3. The Services include the following additional tasks related to the Platform: installation of updates, introduction of improvements, information storage, provision of technical support, and backup creation.
1.4. Additionally, the Services may include some of the following provisions and works, depending on the contracted mode (among others):
1.5. The specific scope and limits of the Services are defined in these Stipulations and in Annex I to the Contract, which forms an inseparable part of it.
2.1. Under this Contract, the CLIENT may use the Platform through any device that has a broadband Internet connection and meets the technical requirements listed in Annex I of this Contract.
2.2. The Platform has been developed to enable the management and control of electric vehicle charging stations, among other things, including user management and real-time connection with charging stations. The scope and features of its functionalities depend on the mode of contract chosen by the CLIENT and are detailed in Annex I of this Contract. The Platform will provide the following basic operation management services, including:
2.3. Regarding additional or basic services, these primarily consist of the following:
2.4. ETECNIC will provide the CLIENT with a personal and non-transferable username and password. In the event of loss or theft of these credentials, or if there are suspicions of unauthorized access to the Platform by third parties, the CLIENT will immediately notify ETECNIC to take the appropriate technical measures to prevent unauthorized access.
2.5. The Services are non-transferable, meaning that their assignment, leasing, sublicensing, subleasing, or any transmission of the technical information that the CLIENT may have received under this Contract is not allowed.
2.6. ETECNIC may modify the Platform by adding improvements, offering and withdrawing functionalities, updating the software, and making interface modifications, etc., which shall not be construed as a modification of the Services or as custom development for the CLIENT. The Platform will be offered “as is” according to the configuration that ETECNIC assigns at any given time, provided that its functionalities will at least respect what is stipulated in this Contract; and it may be adapted to the CLIENT’s specific needs according to the agreements reached by the Parties, always expressly and in writing.
3.1. In addition to other obligations set forth in this Contract, the CLIENT undertakes to:
3.2. ETECNIC undertakes to:
3.3. Once a year, at most, and during normal office hours (with prior reasonable notice), ETECNIC may audit the CLIENT to determine compliance with the obligations assumed in this Contract concerning the use of the Software.
4.1. The intellectual property of all elements comprising the Platform, as well as its source code, design, structure, technology, documentation, manuals, and other elements contained therein, along with its improvements and updates, are owned by ETECNIC or, where applicable, it has the rights to use and exploit them. All these elements are protected by Intellectual and Industrial Property laws, and their reproduction, distribution, public communication, and transformation beyond the limits set in this Contract are prohibited. All rights not expressly granted are reserved by ETECNIC.
4.2. This Contract grants the CLIENT a non-transferable and non-exclusive license to use the Platform, through the modality of making it available over the Internet and without territorial limitation, for the purpose, duration, and other limitations set forth in this Contract, Annex I, and current legislation, conditioned upon the CLIENT’s compliance with the terms set forth in this Contract.
4.3. Notwithstanding the foregoing, the license extends to the use of the Software by the CLIENT’s employees. This license is granted solely for the purpose of enabling them to use the Software and does not confer any other type of right.
4.4. Except in legally provided cases, the CLIENT may not use reverse engineering, decompile, disassemble, or in any other way attempt to discover the source code of the Platform.
4.5. In the event that the CLIENT contracts the customization service of the Software interface, the CLIENT hereby grants ETECNIC a non-exclusive license to use, without the right to transfer to third parties and for the duration of this Contract, the contents, colors, designs, typography, and any other expression representative of its corporate image, as well as the trademarks and logos, for the purpose of their use in the existing Software Interface Customization Services owned by ETENIC. Regarding this, ETECNIC will not be responsible for the legality of the contents that the CLIENT provides for the performance of the Customization works: the CLIENT is responsible for obtaining any necessary licenses or authorizations, as well as for complying with any obligation regarding third-party intellectual or industrial property rights that may affect the contents provided to ETECNIC for the provision of such services.
5.1. The CLIENT agrees to pay for the Services at the rates and in the manner set forth in this clause and in the Commercial Offer(s) accepted by the Parties and attached to this Contract as an annex.
5.2. The amounts stipulated do not include VAT or other applicable taxes and shall be payable within the first five business days of each month by direct debit to ETECNIC’s bank account or by card on the same platform. The CLIENT authorizes ETECNIC to charge these amounts indefinitely and as long as the relationship between the Parties lasts.
5.3. ETECNIC will issue monthly invoices in arrears for the agreed amounts. The Parties agree that payments must be made within thirty (30) days of invoice issuance. If any of the invoices are not paid within this timeframe, ETECNIC reserves the right to suspend the provision of the Services, to terminate this Contract, and to claim the total outstanding amounts. Delayed payments will accrue interest at the legal rate plus two (2) points, calculated daily.
5.4. ETECNIC also reserves the right to review the Contract price from January 1 of each year in which it remains in force, in proportion to the variation of the Consumer Price Index (CPI) over the previous twelve (12) months, as published by the National Institute of Statistics or its successor.
5.5. If the CLIENT wishes to contract additional licenses beyond those specified in Annex I, the method will be electronic contracting through either (i) the Platform by clicking on the “Buy a new charging point” option, or (ii) by sending an email to ETECNIC specifying the number of charging points (licenses) they wish to contract. The CLIENT will then receive an electronic confirmation of the new license contract, which will form part of this Contract, thus generating the CLIENT’s obligation to pay in accordance with the price and other economic conditions agreed in the Contract and in Annex I.
The Parties agree that the initial duration of the Contract will be ONE (1) YEAR, automatically renewable at the end of each period for periods of the same duration unless terminated in writing at least thirty (30) days prior to the end of each period. The various execution deadlines for the Services, according to the contracted provisions, will be defined in the corresponding commercial offer accepted by the Parties and attached to this Contract.
7.1. The Parties acknowledge that, to achieve their objectives, the CLIENT must provide ETECNIC with certain information, documentation, or material that may be considered confidential. Conversely, ETECNIC will share with the CLIENT certain tools, methods of application, etc., which may belong to its know-how and intellectual property.
7.2. The industrial secrets, know-how, and other information transmitted between the Parties constitute proprietary and confidential information of the Parties, and their protection is of utmost importance. Therefore, both Parties undertake the obligation to keep such information confidential, adopting appropriate measures to ensure that only authorized persons have access to it, understanding authorized persons as the personnel of the Parties who need it for the development of the activity subject to this Contract.
7.3. In light of the above, both Parties agree that any information, documentation, or material provided during the validity of this Contract and in the development of the contractual relationship established herein will be strictly confidential and treated as such by the receiving Party and its employees and any person at its service. Both Parties undertake to respect and ensure the confidentiality of such information and/or material provided by the other Party at all times. Additionally, the Parties undertake not to copy, reproduce, or in any other way transfer to third parties the information provided by the other Party without prior written authorization from the Party providing the information and agree not to use any information provided in connection with the purposes of this Contract beyond the purpose for which the information was originally provided.
7.4. This clause will remain in force during the validity of this Contract and for an additional period of TWO (2) YEARS after its termination. However, notwithstanding the above, the Parties agree that the obligation not to transfer to third parties the confidential information provided by the other Party without prior written authorization from the Party providing the information will remain indefinitely even after the expiration of this clause.
7.5. For the purposes of applying the foregoing paragraphs, information shall not be considered confidential if:
8.1. The Parties mutually inform that personal data of the parties involved in this Contract and derived from the contractual relationship will be processed by each of them as data controllers for the purpose of managing the rights and obligations emanating from this Contract. To allow the exercise of rights in this area, the Parties designate the addresses indicated in the heading of this document as well as the following email addresses:
8.2. In case customization services are contracted, this Contract will imply ETECNIC’s access to personal data belonging to treatments for which the CLIENT is responsible. In terms of current data protection regulations:
In this sense:
8.2.1. Data Processing Assignment
184.108.40.206. In the execution of the Contract, ETECNIC will access and process on behalf of the CLIENT personal data for which the CLIENT is responsible, regarding whose treatment ETECNIC will be considered the processor according to the applicable regulations. In this regard:
220.127.116.11. ETECNIC must process the data referred to in this Contract according to its object and purpose and always under the CLIENT’s instructions and in any case, will adopt organizational and technical measures that are appropriate to the type of data to be processed, the purposes, and the risks of the treatment, and will carry out specific actions of privacy by design and by default on those treatments that it must carry out.
18.104.22.168. ETECNIC must follow the instructions provided by the CLIENT, including with respect to data transfers to countries outside the European Economic Area or international organizations, unless required to do so under any regulation of the European Union or the legislation of a Member State applicable to it, in which case it is obliged to inform the CLIENT.
22.214.171.124. ETECNIC will refrain from applying or using the accessed personal data for purposes other than those described in the Contract nor will it communicate, even for its conservation, to other persons unless such communication has been previously and expressly authorized by the CLIENT. If ETECNIC uses the data for different purposes, it will be considered responsible for the processing according to the applicable regulations.
126.96.36.199. ETECNIC will collaborate to the extent possible with the CLIENT so that the latter can attend to requests for the exercise of rights in data protection matters it receives.
188.8.131.52. ETECNIC will assist the CLIENT, upon request, to ensure compliance with the obligations established in Articles 32 to 36 of the GDPR, taking into account the nature of the processing and the information to which it has access in executing the Contract.
8.3. Duty of Secrecy
ETECNIC commits to keeping secret regarding the personal data subject to processing and to maintain absolute confidentiality and reservation on any data that it may become aware of during the fulfillment of the services provided, guaranteeing that it will extend this obligation to all the personnel of its organization authorized to access the CLIENT’s personal data. This duty of secrecy and confidentiality will persist without any time limit.
8.4.1. ETECNIC will make available to the CLIENT, upon request, all necessary information to demonstrate compliance with its obligations as well as for the performance of the audits or inspections carried out by the CLIENT or another auditor authorized by it.
8.4.2. For the above purposes, audits or inspections will be carried out within ETECNIC’s working calendar and hours, and the CLIENT must give sufficient notice, which will never be less than three (3) business days.
8.4.3. To the extent that the Services are eminently technological and provided remotely via the Internet, the Parties agree that the audits or inspections that may be carried out will preferably be carried out by telematic means.
8.5.1. The execution of this Contract requires the subcontracting of part of the services, specifically the data storage infrastructure for running the Platform and cloud connectivity. These services will be provided by AMAZON WEB SERVICES INC., located in Seattle (United States), 410 Terry Avenue North (hereinafter referred to as AMAZON).
8.5.2. Similarly, for load balancing and backup purposes, ETECNIC has contracted with AMAZON WEB SERVICES INC., located in Seattle (United States), 410 Terry Avenue North; this company has contractually committed to ETECNIC to ensure that the processing is only carried out in data centers located within the European Union; and with Hetzner Online GmbH, Industriestr, located at Industriestr 25, 91710 Gunzenhausen.
8.5.3. Data processing carried out by AMAZON and HETZNER will also be subject to the CLIENT’s instructions. In this regard, ETECNIC has formalized a contract with both entities, whereby both HETZNER and AMAZON commit to ETECNIC to process the data under similar conditions to those set forth in this Contract.
8.5.4. The Parties agree that AMAZON and/or HETZNER may be replaced in their obligations by another service provider, for which ETECNIC must notify the CLIENT at least one (1) month in advance. The service provider that may replace AMAZON and/or HETZNER will assume the position held by them in this Stipulation.
8.5.5. The Parties do not foresee that the rest of the subcontracting carried out within the framework of the Contract will involve access to the personal data processed by the CLIENT. However, if such access becomes necessary to fulfill the object and purpose of the aforementioned Contract, the CLIENT may authorize the processor to carry out such subcontracting in accordance with the provisions of Article 28.2 GDPR, by prior written or specific authorization. In any case, the document regulating such a relationship will contain the provision of sufficient guarantees of the application of appropriate technical and organizational measures so that the processing complies with data protection regulations.
8.6. Destruction of Data
8.6.1. Once the contractual relationship between the Parties concludes, the personal data must be deleted or returned to the CLIENT, at their discretion, eliminating any copies of the data that may exist. If the CLIENT opts for the return of the data, the procedure will be carried out as stipulated in the Contract.
8.6.2. The above will apply unless there is a norm of the European Union and/or of one of the Member States applicable to it, which requires the conservation of personal data. In such a case, ETECNIC must proceed with the return of the data, ensuring the CLIENT its preservation.
The duration of the processing of personal data to be carried out by ETECNIC will be determined by the duration of the Contract.
9.1. ETECNIC maintains 24/7/365 accessibility to the Platform through providers that guarantee a high level of security, redundancy, and quality of service. However, there may be circumstances where the Services temporarily become unavailable. The CLIENT acknowledges this circumstance and accepts the following service levels:
9.2. ETECNIC cannot guarantee total availability of the Service when circumstances beyond its control that could limit it occur, such as natural disasters or conflict situations. Also, incidents related to or arising from services provided by telecommunications network providers, such as any interruption in accessibility to the Services caused by a breakdown in the CLIENT’s Internet service provider’s infrastructure, will not be counted in the aforementioned availability time.
9.3. The tasks of installing updates and introducing improvements will not be counted in the aforementioned availability time, provided they are communicated to the CLIENT at least twenty-four (24) hours in advance.
9.4. Incidents related to or arising from services provided by telecommunications network providers, such as any interruption in accessibility to the Services caused by a breakdown in the CLIENT’s Internet service provider’s infrastructure, will also not be counted in the aforementioned availability time.
10.1. ETECNIC guarantees the proper functioning of the Software except in cases of accident, abuse, or incorrect application by the CLIENT. If the Software includes any error not resulting from the aforementioned situations, ETECNIC commits to fixing it as soon as possible.
10.2. The Software in its entirety is owned by ETECNIC and will be offered “as is” according to the configuration that ETECNIC assigns at any given time, provided that its functionalities will at least respect what is stipulated in this Contract; and it may be adapted to the CLIENT’s specific needs according to the agreements reached by the Parties.
10.3. The results offered by the Software do not exempt the CLIENT from performing its own checks on functioning and suitability, as well as having the required number of trained employees to proceed in such a manner.
10.4. The nature of this Contract is that of a service provision with obligations of means. ETECNIC cannot guarantee the achievement of results that do not depend exclusively on its activity, the suitability of the Services for a specific purpose, indemnity in terms of cybersecurity, the detection of all potential information leaks, nor the use or implementation of superior or newer technologies, knowledge, or technical means than those initially envisaged; aspects known and accepted by the CLIENT.
10.5. ETECNIC will not be responsible for operational errors in the Software or for damages caused by the CLIENT’s non-compliance with the obligations assumed under this Contract. For instance, but not limited to, ETECNIC will also not be responsible for:
10.6. The parties agree that ETECNIC’s liability to the CLIENT arising from this contract is limited, in any case and for any reason, to the total amount received by ETECNIC from the CLIENT under this Contract. Except in cases of fraud, ETECNIC cannot be held responsible for:
10.7. During the validity of this Contract and for a period of two (2) years after its termination, the CLIENT, without obtaining prior written consent from ETECNIC, shall not contact ETECNIC’s employees or suppliers, nor assist any person or entity intending to contact any of ETECNIC’s employees or suppliers with the aim of persuading or attempting to persuade such employees or suppliers to terminate their employment or commercial relationship with ETECNIC. In the event of non-compliance with this stipulation, the CLIENT commits to pay ETECNIC an amount equivalent to double the remuneration that the employee or supplier would have received over a period of two (2) years as direct compensation for damages. For these purposes, the average of the remunerations received by the employee or supplier in the last year, or fraction thereof if their relationship with ETECNIC was less than a year, will be taken as the basis for calculation.
10.8. Notwithstanding the provisions of the ninth stipulation, ETECNIC reserves the right to temporarily limit or interrupt the Services when it detects any anomaly or incident that could disturb the security of the ETECNIC Network, or when it is essential to perform scheduled or emergency maintenance tasks to prevent serious interruptions or damage to the Software or the information stored.
11.1. Communications between the Parties relating to this Contract shall be made in writing by any means that allows for proof of receipt and content.
11.2. The Parties agree to use the addresses indicated in the heading of this Contract for notification purposes.
12.1. ETECNIC and the CLIENT are, in any case, independent contractual parties. In no case does this Contract imply the creation of any link between the parties other than that derived from its strict content, nor does it create any agency, employment, franchise, joint venture, partnership, or legal representation relationship between one party to act on behalf of the other.
12.2. However, the CLIENT expressly authorizes ETECNIC to use its trademarks and logos for commercial reference purposes in its documentation. This authorization of use does not, in any case, imply a license or transfer of the trademarks or logos beyond the mere use mentioned.
12.3. ETECNIC reserves the right to subcontract all or part of the Services subject to this Contract. However, if such subcontracting involves access to personal data for which the CLIENT is responsible, it must comply with the obligations established by current legislation on personal data protection.
13.1. In case of contradiction between the provisions of this Contract and its Annexes, the terms and conditions of the Contract shall prevail over those in the Annexes, unless the stipulations included in the Annexes expressly state otherwise.
13.2. The fact that any of the parties does not demand strict compliance with any of the terms of this Contract does not imply, nor can it be interpreted as, a waiver by it to demand its compliance in strict terms in the future.
13.3. The declaration of nullity of any of the Stipulations of this contract by the competent Authority will not affect the validity of the remaining ones. In this case, the contracting parties commit to negotiate a new stipulation in replacement of the annulled one with the closest possible identity to it. If replacement becomes impossible and the Stipulation is essential for the contract, at the discretion of the party harmed by its elimination, it may opt for the resolution of the contract.
13.4. This Contract and the documents mentioned in it, especially the written assignments made by the CLIENT in relation to this Contract, constitute a single agreement that replaces any other agreement, contract, or pre-contract reached between the Parties concerning the object of this Contract.
14.1. In case of breach by either Party of any of the stipulations provided in this Contract, the other party may terminate this Contract, reserving the right to claim damages and losses, notifying this fact in writing to the non-compliant party, provided that such breach has remained without correction for a period of fifteen (15) days from the date of the written notification to the defaulting party.
14.2. Will also be cause for termination of the Contract:
14.3. The termination of the contract entails the termination of the service and all responsibility of ETECNIC both on the service and on the CLIENT’s systems.
14.4. Once the Contract is terminated for any reason, ETECNIC will provide, upon request of the CLIENT, an electronic copy of the contents that the CLIENT had stored on its servers through the Platform. This copy will be accessible through the Platform for a period of one (1) month from the date of termination of the Contract.
15.1. This Contract shall be governed by Spanish laws.
15.2. For the interpretation and resolution of conflicts that may arise between the parties due to any discrepancy, question, or claim resulting from the execution or interpretation of this Contract, or related to it either directly or indirectly, and with an express waiver of any other jurisdiction that may correspond to them, the parties submit to the jurisdiction of the Courts of the city of Tarragona.