1. Purpose
1.1. This document sets out the general terms and conditions (the “General Terms”) governing the provision of digital marketing services by Webimpacto Consulting, S.L. (“Webimpacto”) to the client (the “Client”) as detailed in the Technical and Financial Proposal agreed between both parties (the “Proposal”). Unless expressly stated otherwise in the Proposal, the Proposal shall remain valid for thirty (30) days from its date of issue.
1.2 The General Terms, together with the Proposal, jointly constitute the contract between Webimpacto and the Client (the “Contract”). In the event of any contradiction or conflict between the two documents, the provisions of the Contract shall prevail.
2. Scope of services, variations and exclusions
2.1 The scope of the services (including deliverables) shall be as expressly set out in the Proposal (the “Services”). Any correction work arising from causes not attributable to Webimpacto shall be excluded from the scope of the Services and, where applicable, invoiced separately, subject to a quotation accepted by the Client. Unless otherwise indicated in the Proposal, the Services shall be provided at Webimpacto’s offices. Where the Services are provided outside Webimpacto’s offices, the Client undertakes to provide Webimpacto’s employees with the appropriate means to carry them out. Travel and accommodation expenses shall be invoiced separately.
2.2 Any variation to the scope of the Services set out in the Proposal shall be invoiced separately as additional services. Such additional services shall include, but not be limited to, changes in the size (quantity) of the work, changes in the complexity of any element involved in the projects, and any change made after approval of each stage of the design, documentation, etc. Webimpacto shall keep the Client informed of any additional services required and shall seek the Client’s approval for those additional services that affect and exceed the fees set out in the Proposal.
2.3 In addition to the Services covered by the Contract, Webimpacto may, at the Client’s request, provide any other services included in its catalogue, which shall be the subject of a new proposal and invoiced separately.
3. Term and early termination
3.1 The Contract shall enter into force upon acceptance of the Proposal and receipt by Webimpacto of the first agreed payment milestone.
3.2 Where the engagement consists of the execution of a specific project, the term of the Contract shall be linked to its completion in accordance with the technical specifications set out in the Proposal. Unless otherwise indicated in the Proposal, delivery dates shall be estimates. Where the engagement is recurring over time, and unless otherwise indicated in the Proposal, the Contract: (i) shall have an initial term of twelve (12) months; and (ii) shall renew automatically for successive periods of twelve (12) months each, unless either party notifies the other, at least sixty (60) days before the renewal date, of its intention not to renew the Contract. In any event, termination of the Contract by the Client without just cause before the end of the initial term or of any renewal shall not give rise to any refund of the price paid to Webimpacto, which shall in any case be entitled to claim the full agreed price not yet invoiced as compensation for damages.
3.3 Without prejudice to the foregoing, the Contract may be terminated early: (a) where one of the parties has breached, in whole or in part, its contractual obligations and fails to remedy the breach within fifteen (15) days of the compliant party giving notice of the breach; (b) for any other reasons established by law.
4. Financial terms
4.1 In consideration for the provision of the Services, the Client undertakes to pay the amounts set out in the Proposal, which shall be invoiced on the terms stated therein. Unless expressly agreed otherwise in the Proposal, the quotation is set per “unit”. The Client shall pay a surcharge for any service requiring work outside normal working days and hours due to unscheduled delivery dates, or as a result of the Client failing to meet deadlines for providing information, materials or approvals. In any event, renewal of the Contract shall not mean that the same price for the Services is maintained; the price shall be set annually by Webimpacto in accordance with the rates it establishes for each year, which shall be duly communicated to the Client.
4.2 Unless otherwise indicated in the Proposal, the Client shall bear the expenses that Webimpacto necessarily incurs in providing the Services, including, among others, courier services, extra prints and copies, and/or long-distance calls, extra magnetic media, etc. All travel expenses shall be invoiced separately, and the Client’s approval, together with a quotation, shall be requested beforehand. Webimpacto shall duly justify the expenses incurred, providing the corresponding receipts.
4.3 The amounts do not include applicable taxes, which shall be borne by the party legally obliged to pay them. Webimpacto shall issue the corresponding invoices, which the Client shall pay by bank transfer.
4.4 If payment of any amount owed by the Client is delayed by 30 days or more, Webimpacto may, without prejudice to any other right or remedy, suspend the provision of the Services until that amount has been paid in full. In any event, failure to evidence payment of the price shall be automatic grounds for termination of the Contract, without prejudice to any claim for damages and payment of interest that Webimpacto may bring if it sees fit.
4.5 The Client shall not be entitled to suspend, withhold or make any reduction or set-off in relation to any invoice, regardless of whether it may have made any claim against Webimpacto.
5. Client representative
5.1 The Client shall appoint a single project manager with full authority to provide or obtain the information or approvals required by Webimpacto (the “Client Manager”). The Client Representative shall be responsible for coordinating the briefing, review and decision-making process involving other parties or persons with Webimpacto and/or its subcontractors.
5.2 If, after the Client Representative has approved the design and/or its stages, the Client or any other authorised person requests changes that give rise to additional services by Webimpacto, the Client shall pay the charges and costs involved in such changes and additional services. The Client Representative’s signature shall be conclusive with regard to the approval of each stage of the project. Should the Client decide to change this representative, it shall notify Webimpacto immediately in writing, specifying the identity of the new contact.
6. Client’s duty to cooperate
6.1 The Client shall provide Webimpacto with reliable and complete information, as well as the materials needed to carry out the engagement in a timely and proper manner, and shall be responsible for the accuracy and completeness of all information and materials provided. The Client warrants that no material provided to Webimpacto infringes the copyright of third parties. The Client shall indemnify, defend and hold Webimpacto harmless from and against any claim, lawsuit, damage or loss, including defence costs, arising from any claim by third parties whose rights have been or are violated or infringed as a result of the material provided by the Client.
6.2 All text and information supplied by the Client shall be delivered to Webimpacto in digital format, ready for insertion into the Projects. Where any material is provided by the Client in another medium, such as photographs, illustrations or other visual material, printed texts, etc., it shall be of professional quality and ready for digitisation without further preparation or alteration. This process (scanning, OCR, typing, etc.) shall be quoted as a supplementary service. The Client shall pay all costs arising in relation to materials delivered that do not meet these standards.
6.3 If so requested by the Client, Webimpacto shall return all material provided by the Client within 30 days of completion of the project and full payment. Webimpacto shall take reasonable precautions to safeguard originals or other materials provided by the Client. Webimpacto’s liability for damage to or loss of material provided by the Client shall be limited to replacing the material in its commercial or blank form. Webimpacto undertakes to store the originals for 2 months from completion of the Project. Once that period has ended, it shall not guarantee their return.
6.4 Where necessary, the Client shall give Webimpacto’s specialists access to the programs and platforms for the duration of the Contract, in order to carry out the contracted maintenance work, obtaining all the necessary third-party permissions and passwords required for access by Webimpacto’s technicians.
7. Intellectual and industrial property
7.1 The parties shall remain the owners of the industrial and intellectual property rights they held at the time of entering into the Contract. Each party authorises the other to use its name and logo/trade mark solely for the purpose of enabling the performance and fulfilment of the Contract.
7.2 Unless otherwise indicated in the Proposal, (i) Webimpacto shall be the exclusive owner of all intellectual and industrial property rights generated by its staff in the performance and execution of the Contract; and (ii) the Client shall own the deliverables generated under the engagement, without the right to assign them to third parties and limited to the term of the Contract.
7.3 Webimpacto may engage third parties to provide services such as copywriting, photography and illustration. The Client agrees to the resulting terms, including credits, regarding the reproduction of material that such third parties may impose on Webimpacto.
8. Liability
8.1 Except where otherwise stipulated in the Proposal, the Client is informed of, understands and accepts that the Services are provided “as is”, that is, without warranties of any kind, express or implied, as to merchantability and/or fitness for a particular purpose or results.
8.2 Except in cases of gross negligence or wilful misconduct, Webimpacto’s total liability in connection with the Contract on any basis shall be limited, in aggregate, to a maximum of the amount corresponding to the price paid to Webimpacto by the Client for the Services during the last year. Before considering Webimpacto to be in breach of its obligations, the Client shall always give it the opportunity to correct any deficiency or shortcoming in the provision of the Services.
8.3 Webimpacto shall under no circumstances be liable for damages that may be classed as indirect or consequential damages, loss of profit or expected results, business, revenue, customers, data, image or commercial reputation in the market, nor for damages arising from its inability to provide the Services for reasons beyond its control, such as, by way of example, discontinued equipment and suppliers’ stock shortages. Nor shall Webimpacto be liable for the loss of any data caused by the Client’s staff acting on their own initiative.
9. Employment, social security and tax obligations
9.1 Each party shall be solely responsible for complying with its respective obligations, including, by way of example, tax, employment and Social Security obligations, and shall hold the other party harmless against any claim that may arise from a failure to comply with those obligations.
9.2 Webimpacto fully assumes, for all purposes, in respect of its staff assigned to the provision of the Services, the legal status of employer with all the rights and obligations inherent in that status. Under no circumstances shall any employment relationship be deemed to exist between the Client and Webimpacto’s staff who may be providing their services at the Client’s premises. Under no circumstances may visits by Webimpacto’s staff to the Client’s premises be considered a secondment of staff.
10. Confidentiality
10.1 The Client shall inform Webimpacto in writing if any part of the documentation provided by the Client is confidential. Information in the public domain shall under no circumstances be considered confidential.
10.2 Webimpacto shall keep the information confidential and shall not use it, except with the Client’s written authorisation, even after the end of this Contract. Webimpacto shall limit the disclosure of confidential information solely to the persons directly involved in providing the Services, and may not disclose it to any third party under any circumstances, even in the event of termination of this Contract.
10.3 The Client expressly authorises Webimpacto to announce publicly that the Client forms part of Webimpacto’s client portfolio, both in press publications and at events for advertising and marketing purposes.
11. Data protection
11.1 Each party shall be solely responsible for complying with the obligations arising for it under the data protection legislation in force.
11.2 Each party is informed of and consents to the processing of the personal data provided as a result of the Contract and its performance for the purpose of maintaining, monitoring and managing the contractual relationship. The data may be disclosed to third parties where necessary for the performance and fulfilment of the Contract, as well as for compliance with any applicable legal obligation. The rights provided for in the data protection legislation in force are recognised and may be exercised by written notice to the addresses specified in the heading; a complaint may also be lodged with the Spanish Data Protection Agency (www.aepd.es) if either party considers that the other has breached the applicable legislation. The data shall be processed for the duration of the Contract and, once it has ended, for the statutory limitation periods of the obligations arising from the processing. The legal bases for processing the data are consent, performance of the contractual relationship, legitimate interest and/or compliance with legal obligations.
11.3 To the extent that the activities of one of the parties (the Processor) involve the processing of and/or access to personal data owned by the other Party (the Controller), the Processor shall comply with the following obligations: (a) process the personal data solely in accordance with the written instructions provided by the Controller; (b) keep a record of the processing carried out on behalf of the Controller; (c) where applicable, appoint a Data Protection Officer and communicate their contact details to the Controller; (d) not disclose the personal data to any third party unless expressly authorised by the Controller; (e) ensure that the persons authorised to process the personal data receive the necessary training in personal data protection and undertake, expressly and in writing, to respect confidentiality and comply with the corresponding security measures; (f) allow the Controller to review all documentation needed to demonstrate compliance with the obligations set out herein, and allow and contribute to inspections and audits carried out by the Controller; (g) support the Controller in carrying out data protection impact assessments and/or prior consultations with the supervisory authority, where applicable; (h) notify the Controller, without undue delay and in any event within a maximum of 48 hours, by email, of any personal data breaches under its responsibility of which it becomes aware; (i) provide the Controller with reasonable assistance in any requests, applications, demands and any other procedures that may be necessary or advisable before the competent administrative or judicial authorities and, in particular, before the Spanish Data Protection Agency; (j) in accordance with the Controller’s instructions, return, delete or hand over to third parties all personal data and, where applicable, the media on which they are stored, once they are no longer relevant for that purpose or the Contract has been terminated, and may only retain the data where there is a legal duty to do so; and (k) apply appropriate technical and organisational measures to ensure a level of security appropriate to the risk (likelihood and severity), including, where appropriate, among others: (1) the pseudonymisation and encryption of personal data; (2) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (3) the ability to restore the availability of and access to personal data in a timely manner in the event of a physical or technical incident; (4) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
12. Nature of the relationship
12.1 The Contract is commercial in nature and shall be governed by its own clauses and, in matters not provided for therein, by the provisions of the Spanish Commercial Code, special laws and commercial practice and, failing these, by the Spanish Civil Code. Unless expressly established otherwise in the Proposal, the legal nature of the engagement shall be that of a contract for services.
12.2 The parties are independent contractors. Neither party may act as the representative or agent of the other, nor take any action that implies an appearance of association with or dependence on the other.
13. Miscellaneous
13.1 Webimpacto may subcontract the provision of the Services, in whole or in part, to third parties, who shall act under Webimpacto’s coordination.
13.2 The Client is expressly prohibited from making any kind of job offer to Webimpacto’s employees without first obtaining Webimpacto’s written authorisation. In the event of breach of the foregoing, the Client agrees to pay Webimpacto, by way of penalty clause, an amount equal to two and a half times the gross salary received by the Webimpacto employee on the date of hiring.
13.3 All notices and communications between the parties under the Contract shall preferably be made by email and shall take effect upon receipt. Either party may change its address by notifying the other party of the new address.
13.4 Webimpacto may at any time freely assign the Contract, together with the rights and obligations arising from it. Webimpacto shall notify the Client of the assignment in writing. The Client may not assign the Contract, in whole or in part, without Webimpacto’s prior written consent.
13.5 The unlawfulness, invalidity or unenforceability of any clause of the Contract shall not affect the validity of the remainder, provided that the rights and obligations of the parties are not materially affected. Such clauses shall be replaced or supplemented by others that, being lawful, serve the purpose of those replaced.
13.6 The Contract formed by these General Terms and the Proposal constitutes the only existing, valid and enforceable Contract, and supersedes any other verbal or written agreement that may previously have been entered into between the parties. Any amendment to the terms of the Contract shall require formalisation in writing by both parties.
13.6 In the event that the normal performance and provision of the Services may be affected by any event beyond Webimpacto’s reasonable control, Webimpacto reserves the right to activate the contingency protocols it deems necessary and to adopt, among other measures, the suspension of the provision of the Services until the event in question has ended.
14. Governing law and jurisdiction
14.1 The Contract shall be governed by and construed in accordance with Spanish law.
14.2 For the resolution of any disputes arising in the performance and interpretation of the Contract, the parties agree, expressly waiving any other jurisdiction that may apply to them, to submit to the exclusive jurisdiction of the Courts and Tribunals of the city of Barcelona.