1. Scope of the Terms and Conditions
The purpose of these Terms and Conditions is to define the terms and conditions under which WorkMeter, S.L. will provide the SaaS services of the WorkMeter contracted software to the CUSTOMER. Specifically, in order to provide the proper provision of SaaS services, the following is regulated:
2. The contracting process of the SaaS services and the corresponding license for the use of the contracted WorkMeter software.
2.1 To begin the contracting process, the CUSTOMER must accept these Terms and Conditions; then WorkMeter, S.L. will assign the Provisory Password to each of the Administrators to allow them use of the SaaS Services under the free trial regime.
2.2 If the CUSTOMER is interested in continuing the contracting procedure for the SaaS service, the CUSTOMER must fill in and sign the Contract containing the particular conditions for the contracting process as well as the restatement of these General Conditions.
2.3 In the Contract, the CUSTOMER will indicate, among other aspects, (i) the initial number of managed employees contracted within the framework of the provision of the SaaS services provided with the WorkMeter contracted software; and (ii) a contact person in charge of the centralization and coordination of the relations with WorkMeter, S.L.
2.4 Finalization of the contracting process will be subject to (i) verification by WorkMeter, S.L. of the contents of the Contract and (ii) notification to the CUSTOMER of the WorkMeter, S.L.´s eventual conformity.
2.5 Once the Contract is signed, WorkMeter, S.L. will assign the corresponding Password for the SaaS Services to the CUSTOMER so each of the authorized Administrators and managed employees can make use of those services.
2.6 The CUSTOMER has been informed and accepts that the information contained on the WorkMeter, S.L. website regarding the contracting of WorkMeter, S.L. software is not a contractual offer or the beginning of a business relationship with WorkMeter, S.L., but that, in any case, the compliance with the requirements set forth for the conclusion of the contracting process in these Terms and Conditions will be requested in accordance with valid norms.
2.7 If the CUSTOMER disagrees with the contents of these General Conditions or any of the particular conditions of the Contract, the CUSTOMER should refrain from making use of the free trial and terminate the contracting process.
3. License for the use of the Contracted WorkMeter Software
3.1 WorkMeter, S.L. grants to the CUSTOMER a non transferable and non-exclusive license for the use of the contracted WorkMeter software, solely under the terms and conditions indicated in these General Conditions, the Contract, the User Manuals and any other applicable documentation, whether in paper, disc, read-only memory in the computer or any other applicable type of support.
3.2 The use of the contracted WorkMeter software will be allowed exclusively to the number of Administrators and managed employees possessing the password for the SaaS services and that the CUSTOMER indicated in the Contract.
3.3 The CUSTOMER will refrain from making copies, disclosing or allowing access to third parties of the contracted WorkMeter software; the CUSTOMER will not allow its use by people other than the Administrators or Operators or to those people acting outside the limits set forth herein. The CUSTOMER is responsible for the proper compliance by those people with the terms and limitations of this license.
3.4 The rights granted to the CUSTOMER, in accordance with the provisions of these General Conditions, extend to any update or new version replacing and/or complementing the contracted WorkMeter software, unless the updating or new version contains its own use conditions.
4. Intellectual property of the contracted WorkMeter software
4.1 The contracted WorkMeter software has been created by WorkMeter, S.L., which will keep all the intellectual, industrial or any other property rights on the contracted WorkMeter software, which cannot be object of further modifications, copies, changes, reproduction, adaptation or translation on the part of the CUSTOMER.
4.2 The structure, features, codes, working methods, information devices, development tools, know-how, methodologies, processes, technologies or algorithms of the contracted WorkMeter software are the property of WorkMeter, S.L. or its suppliers, and in this latter case, have been the object of a license or cession by them and are protected by Spanish and international intellectual and industrial property laws and cannot be object of further modification, copy, changes, reproduction, adaptation or translation on the part of the CUSTOMER.
4.3 Also, all the user manuals, texts, graphic drawings, databases, video or audio support referred to or complementing the contracted WorkMeter software (hereafter referred to as "Associated Materials") are the property of WorkMeter, S.L. or its content providers, and cannot be object of further modification, copy, changes, reproduction, adaptation or translation on the part of the CUSTOMER.
4.4 The availability to the CUSTOMER of the contracted WorkMeter software and the Associated Materials does not imply, in any case, the cession of the name or the concession of a right to use in favor of the CUSTOMER other than the one indicated in these General Conditions.
4.5 Therefore, any use on the part of the CUSTOMER of the contracted WorkMeter software or the Associated Materials, without the authorization of WorkMeter, S.L. is absolutely forbidden; this includes the exploitation, reproduction, disclosure, transformation, distribution, transmission by any media, further publication, exhibition, public disclosure or total or partial representation, which, if occur, are to be considered infractions to the intellectual or industrial property rights of WorkMeter, S.L., sanctioned by legislation in force.
5. Regime for the provision of the SaaS services
5.1 WorkMeter, S.L. will provide the SaaS services directly, with its own means, or with the cooperation of third parties. Specifically, WorkMeter, S.L. may subcontract the SaaS platform in whole or in part to specialized companies from the sector.
5.2 In any case, the subcontracting of SaaS services by WorkMeter, S.L. will take place in full observance of the provisions of the law on the protection of personal data and. therefore, subject to the provisions of Condition 11.2.5 below.
5.3 Annex 1 includes the Service Level Agreement, containing the level and quality requirements applicable to SaaS services. With regard to the Service Level Agreement, WorkMeter, S.L. undertakes to make its utmost efforts to ensure its compliance, assuming the CUSTOMER´s full compliance with: (i) the provisions of Condition 6 below with regard to the technical specifications, as well as, in general, (ii) any of the remaining obligations set forth in these General Conditions.
5.4 Based on Condition 2.3 (ii) above, the CUSTOMER will designate a contact person in the Contract who is in charge of the centralization and coordination of the relations with WorkMeter, S.L. in all matters relating to the provision of SaaS services.
6. Technical Specifications and Use Manual
6.1 Annex II of these General Conditions contains the technical specifications with which the CUSTOMER networks, devices and terminals must comply at all times to install and use the contracted WorkMeter software. If the CUSTOMER networks, devices and terminals do not comply with the technical specifications referred, the CUSTOMER will refrain from installing and using the contracted WorkMeter software.
6.2 Also, it must be emphasized that each of the programs or applications that the CUSTOMER may select as contracted WorkMeter software has a specific Use Manual detailing its specific operation and the basic instructions for its use. The CUSTOMER may have access to these at the web page www.workmeter.com.
6.3 The CUSTOMER acknowledges that it is up-to-date and familiar with the contents of the corresponding Use Manual for each of the programs or applications it has selected as contracted WorkMeter software".
6.4 WorkMeter, S.L. does not assume any responsibility that may derive from the CUSTOMER´s use not in accordance with the User Manual or in those cases when the CUSTOMER´s networks, devices and terminals do not comply with those technical specifications.
6.5 Following prior notification by WorkMeter, S.L., the CUSTOMER must disconnect its networks, devices or terminals from the WorkMeter, S.L. platform if, in the opinion of WorkMeter, S.L., those networks, devices or terminals have caused or may cause failures, interruptions, errors or defects in the SaaS platform.
7. Usage conditions of the SaaS platform and the contracted WorkMeter software
7.1 The SaaS platform and the contracted WorkMeter software will be accessible exclusively by those Administrators and managed employees in whose favor WorkMeter, S.L. has assigned and provided the corresponding Password for those services, in accordance with the provisions of Condition 2 above.
7.2 The CUSTOMER may use the SaaS platform and the contracted WorkMeter software exclusively in accordance with the purposes indicated in these General Conditions. By way of information and without limitation, the CUSTOMER is expressly forbidden from using the SaaS platform and the contracted WorkMeter software for the following purposes:
7.3 Some modalities of the contracted WorkMeter software may provide the CUSTOMER the possibility to take part in forums and/or share information with WorkMeter, S.L. or other customers that contracted the SaaS services. With relation to the above, the CUSTOMER agrees not to transmit, disclose or make available to other CUSTOMERS or third parties information, messages, graphs, sound and/or image files, recordings, software and, in general, any class of material, data or contents (hereunder "the contents") that:
7.4 The CUSTOMER will respond for any damage or pecuniary detriment that WorkMeter, S.L. or other WorkMeter, S.L. customers may suffer as a result of the CUSTOMER´s non-compliance with any of the obligations related to the Contents, and will release WorkMeter, S.L. from any claim that may be filed against it in this regard, agreeing to pay all amounts that WorkMeter, S.L. may have to pay.
7.5 In order to verify the CUSTOMER´s compliance with the provisions of these Terms and Conditions and ensure the security and proper use of the SaaS platform, WorkMeter, S.L. withholds for itself the right to monitor the Administrators and managed employees use of the SaaS platform and the contracted WorkMeter software.
8. Price and method of payment
8.1 The Contract will detail the price and method of payment applicable for the SaaS services and the right of use for the contracted WorkMeter software granted to the CUSTOMER in view of the provisions of these General Conditions.
8.2 Specifically, it is expressly indicated that the price for the SaaS Services and the contracted WorkMeter software license will be set based on the number of employees managed through the WorkMeter software, that the CUSTOMER designates in the Contract.
9. WorkMeter, S.L. responsibility with regard to the provision of SaaS services
WorkMeter, S.L. responsibility with regard to the obligation to provide the SaaS services assumed in this contract will be subject to the following limitations:
10. Warranty on the contracted WorkMeter software
10.1 Specifically, the CUSTOMER agrees that the contracted WorkMeter software is supplied "as is"; therefore, WorkMeter, S.L. does not guarantee that the functions it contains will meet the needs of the CUSTOMER or that the contracted WorkMeter software operates without interruptions or errors. The CUSTOMER will assume the full cost of all the services, repairs and corrections necessary to adapt it to its needs.
10.2 The CUSTOMER agrees that the contracted WorkMeter software constitutes a work tool to complement but not replace the human work.
10.3 To make use of the license granted on the contracted WorkMeter software, the CUSTOMER, at all times, must comply with the following obligations: (i) perform backup copies of the data files generated with the continuous use of the contracted WorkMeter software; (ii) use the contracted WorkMeter software in accordance with the provisions of the Use Manuals; (iii) have a computing device in good condition; (iv) install an uninterrupted power supply system, with voltage-stabilization; (v) control the access to the contracted WorkMeter software in order to prevent handling by unauthorized or inexpert people; (vi) contract periodic maintenance services for the hardware and software; (vii) not allow the installation of virus and defective programs in the same hard disk; (ix) and any other reasonable preventive measure.
10.4 In no case will WorkMeter, S.L. be considered responsible for operating errors or damages caused by the CUSTOMER´s non-compliance with its obligations referred to in Condition 10.3 above or any other applicable obligation in accordance with the provisions of these Terms and Conditions.
10.5 WorkMeter, S.L. will not be responsible for damages that may be qualified as loss of revenue, loss of business, damage to the image or loss of commercial reputation.
10.6 Under no circumstances may the CUSTOMER claim compensation for damages caused by reasons beyond WorkMeter, S.L.´s control, specifically but not limited to interruption or failures (i) in the power supply systems; (ii) in the telecommunications network; (iii) in the interconnection elements; and (iv) in the CUSTOMER devices and terminals.
10.7 WorkMeter, S.L. responsibility for the damage directly imputable to the use of the contracted WorkMeter software cannot under any circumstances exceed the amount effectively received from the customer by WorkMeter, S.L. in the immediately preceding twelve (12) months as consideration for the license of use of the contracted WorkMeter software.
11. Protection of personal data
11.1 Consent to process personal data
With regard to the personal data that the CUSTOMER may provide to WorkMeter, S.L. in the Contract, the following provisions apply:
11.1.1 WorkMeter, S.L. notifies the CUSTOMER that the personal data provided by filling in the Contract will be collected in the file under the responsibility of WorkMeter, S.L.. The CUSTOMER may exert its access, rectification, cancellation and opposition rights to the processing of those data in Barcelona, Vía Layetana, 45, 4-1. For more convenience and notwithstanding that several formal requirements must be satisfied, WorkMeter, S.L. offers to the CUSTOMER the possibility to exert the above-indicated rights by calling the telephone number (34) 93 1810661 or contacting the e-mail address, firstname.lastname@example.org, which is provided for this purpose.
11.1.2 If the CUSTOMER does not provide the required personal data, or does so in a partial way, WorkMeter, S.L. may not be able to accept its contract request.
11.1.3 The CUSTOMER must notify WorkMeter, S.L. of any changes in its personal data so that the information contained in WorkMeter, S.L. files is always updated and free from errors.
11.1.4 As WorkMeter, S.L. has the intention to send its CUSTOMERS business communications via traditional or electronic means regarding its own products and services, as well as regarding those of third parties related to WorkMeter, S.L. By accepting these Terms and Conditions the CUSTOMER expressly authorizes WorkMeter, S.L. to send commercial, promotional or advertising communications by email or any other equivalent electronic media. If the CUSTOMER does not want to receive commercial, advertising or promotional communications, regardless of the channel used, it may notify WorkMeter, S.L. of this decision free of charge through the channel indicated above to exert this right. The CUSTOMER´s agreement to receive commercial information is always revocable, with no retroactive effects.
11.1.5 In order to perform technical and business support tasks and to deliver quality services it may be necessary to transfer your contact details to the WorkMeter, SL Group companies listed in Annex III or indicated in the WorkMeter, SL website (www.workmeter.com), exclusively for the purposes stated above and listed in the preceding clause. Refusal to perform such transfer may entail the inability for WorkMeter, S.L. to provide the service. Likewise, data communication may involve the data international transfer to the countries where the Group companies WorkMeter, SL are registered, including countries that do not offer a level of protection comparable to the one required in the European Union.
11.1.6 Also, with this document the CUSTOMER is informed of the first communication of data to the companies of the WorkMeter, S.L. Group.
11.1.7 WorkMeter, S.L. informs that it has implemented the technical and organization security measures necessary to ensure the security of personal data and prevent their unauthorized alteration, loss, processing and/or access, taking into account the state of the technology, the nature of the stored data and the risks to which they are exposed, whether from human action or physical or natural means.
11.2 Provision of services by WorkMeter, S.L. implying processing of personal data
During the provision of the SaaS services indicated in these Terms and Conditions, WorkMeter, S.L. may exceptionally request access, for maintenance or security reasons, to the CUSTOMER´s personal data, in which case the following provisions apply:
11.2.1 At all times, WorkMeter, S.L. and the CUSTOMER will properly comply with the provisions contained in the data protection legislation applicable for information and data handled during the provision of the services covered by this Contract.
11.2.2 Specifically, WorkMeter, S.L. agrees to treat the data in accordance with the instructions of the CUSTOMER, not to apply or use them for purposes other than the provision of the services covered by these Terms and Conditions and not to disclose them, even for safekeeping, to other people except subcontracts necessary for the WorkMeter, SL product and performance and for the distribution network. Once the provision of the services is completed, the personal data must be destroyed or returned to the CUSTOMER, as well as any supporting material or documents indicating personal data used during the provision of the services, unless WorkMeter, S.L. is legally bound to preserve them and, in such a case, only for the term required.
11.2.3 The CUSTOMER will also comply with the obligations contained in the provisions on the protection of personal data under its responsibility and is responsible for the files with those data, such as legal obligations with those affected and competent authority regarding the protection of personal data or replacing entity or the competent authorities in the field.
11.2.4 The CUSTOMER authorizes WorkMeter, S.L. to bear the costs, including any kind of compensation, sanction and expenses resulting from claims of the affected people, for negligence and/or lack of confidentiality, use and/or undue treatment of the personal data, expressly including any amount deriving from the sanctions that eventually may be imposed by the competent authority in matters of the protection of personal data for the non-compliance or defective compliance with applicable legislation, provided that the non-compliance is due to the CUSTOMER, its employees or its assistants. In those cases, WorkMeter, S.L. will notify the CUSTOMER of the claims received so that the CUSTOMER may prepare its legal defense. The CUSTOMER must act at all times in a coordinated way with WorkMeter, S.L. and always preserve the WorkMeter, S.L. image.
11.2.5 With regard to the provisions of Clause 5.1 of these Terms and Conditions, the CUSTOMER expressly agrees that WorkMeter, S.L. may effectively contract and subcontract the companies specified in Annex IV to provide certain services that WorkMeter, S.L. requests to provide the SaaS services to the CUSTOMER. As the provision of those services may require, under exceptional circumstances, that personal data belonging to the CUSTOMER be processed, in the contract signed between WorkMeter, S.L. and the subcontracted third parties and with regard to the processing of personal data, it is understood that WorkMeter, S.L. acts on behalf of the CUSTOMER.
12. Adaptations or new versions of the contracted WorkMeter software
WorkMeter, S.L. may perform adaptations or release new versions of the contracted WorkMeter software. If as a result of those adaptations or new versions of the contracted WorkMeter software, WorkMeter, S.L. considers the modification of these Terms and Conditions to be necessary, it will notify the CUSTOMER of the new Terms and Conditions, which the CUSTOMER must accept within the term set forth in the corresponding communication. Should the CUSTOMER not reject the changed, the license of use covered by these Terms and Conditions will be understood as terminated.
The CUSTOMER expressly agrees that WorkMeter, S.L. will notify the Operators of updates or patches that may be considered necessary for the proper operation or maintenance of the contracted WorkMeter software by means of notices or alerts visible to the Operators. Under no circumstances may the CUSTOMER claim any compensation from WorkMeter, S.L. for damages that it may derive from the poor operation of the contracted WorkMeter software caused by the CUSTOMER not accepting those updates or patches.
WorkMeter S.L. shall have the right to use the data arising from the usage of the WorkMeter software by the CUSTOMER, in a grouped and dissociated manner, with purely statistic and tool development purposes.
13. Duration and termination of the SaaS Services and the license of use
13.1 The contractual relation ruled by these Terms and Conditions will be valid from the time when WorkMeter, S.L. received the acceptance on the part of the CUSTOMER of the Terms and Conditions and the Contract, with a duration of one (1) year, automatically renewable for successive terms of one (1) year, unless any of the parties notifies the other, no later than thirty (30) days in advance of the termination of the initial term of validity or any of its extensions, its intention not to extend the validity. These Terms and Conditions will also cover the free trial period with the same limitations, terms and conditions indicated here.
13.2 The contractual relation governed by these Use Conditions will terminate for any of the following reasons:
13.3 The CUSTOMER agrees to uninstall or delete the contracted WorkMeter software from its computing devices within a term of no more than fifteen (15) days following the termination of the license on the contracted WorkMeter software, as well as any copy, supporting material or associated documentation.
14. Responsibility of the CUSTOMER
14.1 The CUSTOMER agrees that administrators or users/employees using the Software WorkMeter hired under SaaS services, know, take, accept and comply with the obligations under these General Conditions and therefore it assumes full responsibility for the eventual breaching by administrators or users/employees of such obligations.
14.2 The Customer declares that is fulfill with the provisions stated by the Law 15/1999 on Protection of Personal Data and its implementing regulation, the RD 1720/2007. Accordingly, the CUSTOMERdeclares that it will inform its employees of the installation and use of software WorkMeter in the company prior to its implementation. The breaching by the CUSTOMER of this clause is, in addition to the possibility of termination of this contract by WorkMeter, S.L. at any time and without alleging any cause, the total exoneration of whatsoever responsibility to WorkMeter, S.L.
14.3 The CUSTOMER agrees to identify one or more internal support personal resources to be able to handle inquiries regarding the installation and basic configuration of the application (first level support). The CUSTOMER will report higher level incidences, through the designated individuals, to the assigned WorkMeter Partner or directly to WorkMeter, S.L. if it does not have an assigned WorkMeter Partner. The incidences of upper levels will refer to consultations on advanced settings and medium and severe technical problems.
15. Free use of WorkMeter software as Trial
The content of this contract (particular and general conditions) will be fully applicable to the trial users, except the specific clauses applicable to paying users, so that the references made to "THE CUSTOMER" shall also include the free trial users.
If case of a free trial, in accordance with the provisions of Law 15/1999 on the Protection of Personal Data, we inform you that personal contact details provided will be treated confidentially and will be incorporated to WorkMeter, S.L. files in order to facilitate access and use of the WorkMeter SaaS (Software as A Service) platform, focused on managing the productivity of employees of the CUSTOMER within the agreed time and keep you informed of product enhancements and send our Newsletter, for what you expressly authorize us. Likewise, please note that for efficient service delivery and in order to perform technical and business support it may be necessary to communicate your contact details to the WorkMeter S.L. Group companies listed in Annex III or indicated at any time in the website WorkMeter, SL www.workmeter.com, exclusively for the purposes stated above and those listed in the preceding clauses. Refusal to such communication will mean the inability for WorkMeter, S.L. to provide the service. Furthermore, data communication may involve the international transfer of data to the countries where the WorkMeter, S.L. Group companies are registered, including countries that do not offer a level of protection comparable to the one required in the European Union.
16. Force Majeure
The parties will not be considered responsible for the non-compliance with the obligations set forth in these Terms and Conditions if the non-compliance is due to causes beyond the control of the non-compliant party, including but not limited to the following: fire, flooding, strikes, labor conflicts or social unrest, shortages or unavailability of fuel or power supply, unavailability or abnormal operation of the communication networks, accidents, war (declared or not), commercial embargoes, blockades, riots or insurrections.
17. Prevalence of the clauses
If one of the clauses of these Terms and Conditions is declared void or inefficient, in whole or in part, the nullity or inefficiency will only affect that provision or the void section, with the remaining Terms and Conditions prevailing, and the provision, or part thereof, considered affected will be considered as not included. Therefore, these Terms and Conditions must only lose validity with regard to the void provision and no part or provision of these Terms and Conditions will be cancelled, invalidated, damaged or affected by the decision unless that provision is essential for these Terms and Conditions, affecting them in full.
18. Applicable legislation
Any controversy resulting from the interpretation or execution of these Terms and Conditions, or any of its eventual modifications, as well as any non-compliance with them will be analyzed in accordance with Spanish legislation.
19. Competent jurisdiction
To solve any controversy related with the provisions of these Terms and Conditions or their execution, the CUSTOMER and WorkMeter, S.L. expressly submit to the Courts and Tribunals of Barcelona, waving any other jurisdiction that may correspond.
Service Level Agreement
1. The SaaS platform and the contracted WorkMeter, S.L. software will be available for use via the Internet 24 hours a day, 365 days per year, under the following conditions:
2. WorkMeter, S.L. will not be considered responsible for the interruption of availability of the information and services caused by reasons of force majeure or beyond its control. The following elements or resources, both of the Operator or user or the CUSTOMER, are considered beyond WorkMeter, S.L. control:
3 WorkMeter, S.L. may temporarily interrupt the storage of the Information in its Servers or its availability to Internet users for security reasons, maintenance requirements or for restructuring WorkMeter, S.L. computing resources. These interruptions, which shall not be taken into consideration for the purposes of determining the availability percentages set out in clause 1 above, are intended to improve the storage service and availability of Information through the Internet. In any case, WorkMeter, S.L. will perform its utmost efforts so that those interruptions only minimally affect the CUSTOMER. WorkMeter, S.L. will notify the CUSTOMER in advance of scheduled interruptions whenever possible.
Technical requirements of the CUSTOMER
WorkMeter, S.L., of Spanish nationality, with address at Barcelona, Vía Layetana, 45, 4-1, holder of tax id number B-65493298
Suppliers that WorkMeter, S.L. subcontracted and that, under exceptional circumstances, may have access to personal data of the CUSTOMER
c/ Acer, 30-32, 08038 Barcelona, España