PENDULAR’S SaaS SERVICE TERMS AND CONDITIONS OF SALE
These General Terms and Conditions of the Service constitute, together with the Agreement for the Provision of Services, a contract between Pendular, a trademark of INSTASTORIES SOLUTIONS S.L. with CIF B88429576, and the Client (DATA provided in the registration form).
Please read this document carefully. BY SUBSCRIBING TO ANY PART OF THE SERVICE AND / OR USING IT, THE CUSTOMER/CLIENT AGREES TO BE BOUND BY THE PRESENT GENERAL TERMS AND CONDITIONS, AS WELL AS ALL THE MODIFICATIONS THAT ARE MADE IN THEM IN ORDER TO ADAPT THEM TO THE CHARACTERISTICS OF NEW PLATFORMS AND MODIFICATIONS TO THE APPEARANCE OF THE SYSTEM. IF THE CLIENT DOES NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE CUSTOMER CANNOT SUBSCRIBE OR USE THE SERVICE.
“PENDULAR” is used in place of INSTASTORIES SOLUTIONS S.L with CIF B88429576. “Client Platform” corresponds to the Software and Platform that PENDULAR offers to the Client through its SaaS access modalities and related to the provision of service object of the General Conditions document. “Client” is the natural or legal person to whom the Service is provided in this case (CLIENT DATA). If a natural person signs this Contract on behalf of a company or another legal person, said natural person declares that he has sufficient power to link said entity to this Contract. “Subsidiary” is any legal person that a party controls or that is under the same control as itself. For the purposes of this definition, “control” means owning more than 50% of the share capital. “Contract” is the set of documents that regulate the contracted Service. It consists of the following documents: “Agreement for the Provision of Services” and “General Terms and Conditions of Service”. “License” represents the rights granted by PENDULAR to the Client to install, use, display and execute the Online Service and / or the Client Software, as well as to access it and / or interact with it in any other way, as may be applicable, with the Client’s internal business objectives. “Agreement for the Provision of Services” document that individually describes the conditions under which the Services will be provided by PENDULAR at the request of the Client. “Service” means all software and services of the Client Software (including pre-launch services), and includes any updates, media and content (eg, visual and audio documents and information) contained in the service or made available to the Client by PENDULAR during the use of the service. PENDULAR may modify the service to make updates with the objective to make improvements. “Service Provision Agreement” represents the level of service that PENDULAR undertakes to provide in relation to the Services. This document can be accessed by requesting it by email. “Subscription” is the request made by the Client in which the specific Services requested are identified. “Validity Period” is the stipulated duration of the Contract, including extensions. “Users” are the natural persons dependent on the Client’s network of clients who have the right to use the Services that the Client Software offers. “Warranty Period” It is the equivalent of the Validity Period, including any extension. “External Users” are the users who are not the Client or its employees or who do not derive directly from its distribution network such as Subsidiaries or agents.
2.1 General provisions. PENDULAR grants the Client a License for the Services requested by his clients or himself to use the platform in a limited domain and subdomains, subject to the Client’s obligation to pay the price stipulated for said Services and limited to any right or other obligation described in the contract. This License is exclusive and non-transferable.
2.2 Client Software. The Client needs to install the Client Software provided by PENDULAR to use the Service and obtain access to it or offer access to its users. The Client may only make copies of the Client Software in order to offer compatibility with the Service to its Users. Copies must be exact and complete (including notices of trademarks and intellectual and industrial property), and must be made from a network resource or physical medium approved by PENDULAR. The Client may use a third party to make and install said copies, but accepts that they will be responsible for the actions of said third party. The Client agrees to use reasonable efforts to ensure that its employees, agents, and other persons, anyone allowed to use the Customer Software, know that the Customer Software has been obtained under license from PENDULAR and is subject to the terms of this Agreement. Other additional rights and restrictions may accompany the provision of such Client Software, and Customer agrees to be bound by such additional rights and restrictions.
2.3 Intellectual Property. PENDULAR owns the rights to exploit the intellectual property of the Service and the Client Software, for the entire national and international territory and for the entire duration of the rights established in the Consolidated Text of the Intellectual Property Law. PENDULAR is the owner, in addition to the pre-existing or developed libraries of PENDULAR, that are integrated into the computer product developed by the Client, as well as the moral rights, which will be owned, remunerable, and inalienable in its author status. Libraries are understood to be a set of functionalities grouped into a library that PENDULAR distributes together with the versions of the Client Software related to the Service.
2.4. Authorized Users. Only those individuals designated by the Client as authorized may use the Service and gain access to it. Only users with administrator privileges may add additional Authorized Users to the Service, up to a maximum of the total number of Contracts contemplated by the rest of the contracted non-administrator user licenses.
2.5 Limitations of use. The Client may not reverse engineer, decompile or disassemble any Client Service or Software, except in those cases where applicable law allows it despite this limitation. The Client may not give any Client Services or Software on lease, rental or loan, nor may they resell or host them for third parties unless the Client has the agency or distribution contract with PENDULAR, in which he or she is expressly authorized to do so.
2.6 Responsibilities. The Client is solely responsible for the malicious use that violate or exceed the Limitations of use, either by himself, authorized users or distribution network that they maintain.
3.1 Subscription. The Client will request, by any means provided by PENDULAR, the services and User Licenses he wishes to have, for which he will establish a contract with PENDULAR. The number of licenses acquired will be limited to 1 (ONE) and will be accessible by the number of users that the Client wishes. Any Service added to a previous Subscription will expire at the end of the Term Period contracted for said Subscription. All Subscriptions will be subject to a specific Validity Period (for example, 30 days or 12 months). Clients may interest new Subscriptions for its subsidiaries under this Agreement and grant administrative rights to its subsidiaries to administer the Services. Subsidiaries may not request a Subscription to a Service under this Agreement. To the extent that the Client grants rights to its subsidiaries, said subsidiaries will be subject to the terms and conditions of this Agreement. The Client accepts that she is jointly and severally responsible for the Services acquired or other actions taken by any of its subsidiaries or third parties to whom she grants rights under this Agreement.
3.2 Subscription Rates, Fees and Invoices. “Subscription Fee” means the monthly amount that the Client is obliged to pay for the Subscription to the Client Service and Software. The Client may be asked to pay the Subscription Fee in advance, later or, partially, at both times. PENDULAR may charge the Client more than one billing period at the same time. The amount and method of payment of the Subscription Fees will be specified in the Particular Conditions of the Service or other means provided by PENDULAR. Payments must be paid in accordance with said Particular Conditions. Changes in the price level are not applied retroactively. The prices of each price level are established at the time the Subscription is carried out for the first time and are applied throughout the Valid Period. Subscription Fees may be reviewed at the beginning of any extension of the Subscription. The Client consents to the transmission by electronic means of the sales invoices.
3.3 Extension. Unless the Particular Conditions expressly indicate otherwise, the Service Subscription will be automatically renewed on the expiration date and for the same duration of the previously contracted Validity Period.
3.4 New contract. Before making a new service contract, extending a Subscription or expanding or reducing, in any other way, the contracted Services, PENDULAR may require the Client to enter into an updated contract so that such modification can take effect.
3.5 Taxes and other Incidental Expenses. The rate and price plans do not include taxes, the costs associated with the start-up and operation of the services are included in the price, unless specified otherwise within the Contract. The Client is responsible for tax payments, and is legally obligated to pay PENDULAR, among others, any applicable taxes on value added, sales, use, or similar taxes that PENDULAR may collect from the Client in accordance with applicable legislation.
3.6 Refunds. All charges are not refundable unless expressly stated otherwise, or otherwise provided by law.
3.7 Delay in Payments. Except to the extent prohibited by applicable law, PENDULAR may pass on a default interest if the Client does not pay on time, regardless of the disputes that may have arisen regarding its invoicing. The client must pay said late interest in the manner and moment in which PENDULAR bills them. The default interest will be the amount that is less than a) 2% of the unpaid amount each month or b) the legal interest rate in force at any time. PENDULAR may collect the amounts due through third parties. The Client must pay all reasonable costs incurred by PENDULAR to collect the amounts due. These costs may include reasonable attorney fees, as well as other legal fees and costs. PENDULAR may suspend or cancel, without prior notice, all the contracted Services, if the Client does not attend, in a complete and timely manner, the amount of all the agreed Subscription Fees.
4.1 Resolution by PENDULAR. PENDULAR may cancel or suspend the use made by the Client of the Service or a part of it, at any time, if the Client violates any of the clauses of this Contract, if PENDULAR believes that the use made by the Client of the Service represents a direct or indirect threat to the operation of its network, to its integrity or to the use made by the Service of any other person, or if the law requires PENDULAR in any other way. Upon notification by PENDULAR of any cancellation or suspension, the Customer’s right to use the Service will stop immediately. The cancellation or suspension of the Service due to the breach of the clauses of the Contract by the Client will not change the Client’s obligation to pay any Subscription fee due for the applicable Validity Period.
4.2 Resolution by the Client. The Client may cancel the Service at any time during its Validity Period. The termination of the Service will take place on the last day of the month in which the cancellation communication is received from the Client. If the cancellation is for a Subscription that has a Validity Period of one (1) month or less, the client will pay the full amount of the Subscription. For Subscription Periods of (1) year the Client can request the pause of the service and that period is prolonged for the following year.
4.3 Effect of resolution. In the event of termination or cancellation of the Service for any reason and motive, PENDULAR may permanently delete the Client’s data from its servers. In spite of the above, PENDULAR will keep the Client’s data for a period of 30 days from the end of the Service. The Client will be solely responsible for adopting the necessary measures to make backup copies of their data and to guarantee the maintenance of their data. PENDULAR will provide the technical means necessary for the extraction of the information.
4.4 Waiver of rights and obligations. To the extent that may be necessary to carry out the resolution of this Contract, both parties waive any right and obligation that the applicable law or regulation may impose regarding the need to request or obtain the intervention of the courts to resolve this Contract.
4.5 Absence of responsibility for data deletion. The Client acknowledges that, unless expressly stated otherwise in the contract of particular clauses, PENDULAR will have no obligation to continue to maintain the Client’s data, nor to export or return it. The Client acknowledges that PENDULAR will not have any type of responsibility for the deletion of the Client’s data by virtue of these clauses.
5.1 Access and Disclosure. In order to operate and provide the Services, PENDULAR collects certain information about its Client. PENDULAR uses and protects such information as described in this document and in PENDULAR’s privacy statement, available at (“Privacy Policy”). Specifically, PENDULAR may obtain access to information about the Client, as well as disclose it, including the content of its communications, in order to:
By this document, the Client consents to the access and disclosure described in this section.
5.2 Personal Data. Without prejudice to the foregoing, both parties agree to comply with the provisions of Spanish Law 15/99 of December 13 on Protection of Personal Data (“LOPD”) and Royal Decree 1720/2007, of 21 of December. PENDULAR undertakes not to apply or use the documentation and / or information that has been provided to PENDULAR for purposes other than those contained in the offer, also undertaking not to transfer and / or transmit them to other people. PENDULAR will be in charge of the treatment of said data, therefore it will adopt the necessary technical and organizational measures that guarantee the security of the information provided by and / or related to the Client, avoiding its alteration, loss, treatment and / or unauthorized access , guaranteeing the necessary integrity and security within treatment centers, premises, equipment, systems and programs. PENDULAR guarantees that the security measures adopted will be adequate at all times to prevent access by any person not expressly authorized and to prevent the deterioration, loss or theft of information for any reason.
5.3 Use and performance data. In order to provide you with the Service, PENDULAR may collect certain information on the performance of the Service, as well as on the Customer’s equipment and your use of the Service. PENDULAR will be able to obtain this information automatically from the Client’s equipment. These data will not identify the Client personally.
5.4 Filtering technology. PENDULAR will use technological means, or others, to protect the Service, protect its clients or interrupt the violation of this Contract by clients. For example, you can use filters to stop viruses and spam, or increase security. These means could hinder or interrupt the Customer’s use of the Service.
5.5 Customer privacy practices. By using the Service, the Client may collect personal information about third parties. If necessary, the Client agrees: (a) to publish a confidentiality policy on its website that, as a minimum, reveals each and every one of the uses of the personal information that it collects from said third parties, (b) provide a link to your privacy policy on the homepage of your website and on all pages where you collect personal information from third parties, including payment pages, and (c) use personal information only in the way expressly permitted in your Privacy Policy.
5.6 Communications. Since the Service is an online hosted application, PENDULAR may need to notify Users of the Service on occasion of important announcements related to the operation of the Service. Users may receive communications and other non-critical messages related to the Service from PENDULAR.
6.1 Service provision agreement. PENDULAR will comply with the current “Service Provision Agreement” related to the Services.
6.2 Use by the Client. When using the Service, the Client must:
The Client is not authorized to:
6.3 Use of Other PENDULAR Services. The Client may need to use certain PENDULAR services or websites to access and use the Services. In such case, the terms of use associated with said services or websites, as appropriate, will apply to the use made by the Client.
7.1 Content. PENDULAR, the Client, its Users, the users of associated accounts and third parties may publish or store material, such as data, documents, information, advertisements, communications, messages and links to third party websites (“content”) on the Service. The Client will have the possibility of publishing or providing materials (such as “stories”) that are part of the Service in accessible areas that allow the Client to communicate with their web visitors. It also includes areas of the Service for which the Client can control access by authorized users of associated accounts.
7.2 Intellectual property rights. PENDULAR does not endorse or endorse the unauthorized use of content protected by copyright laws and other intellectual and industrial property rights. The Client understands that sharing content that infringes the intellectual and industrial property rights of other people implies breaching this Agreement. The Client declares and guarantees that the use and publication of the content by the Client and other users do not infringe the intellectual and industrial property rights of third parties.
7.3 Publication of Content. The Client acknowledges that PENDULAR does not control or endorse the content that the Client and others publish or provide on the Service. PENDULAR does not intend to claim ownership of the content that the Client and others publish or provide. By posting or providing content, Customer grants PENDULAR and the public (for content posted in publicly accessible areas of the Service), or those authorized Associate Account Users to which the Client has granted access (for content posted in areas of the Private Service), free, unlimited, perpetual and worldwide permission to use, distribute and display the content, as well as publish the Client’s name along with the content. The Client also grants the public, or those members of the public to which the Client has granted access, permission to grant these rights to others. The Client declares and guarantees that he has all the necessary rights to grant the rights established in this section, and that the use and publication of the content does not violate any law. Any financial sanction that PENDULAR receives as a result of inappropriate use by the client of the information managed on the platform, will be passed directly to the client.
7.4 Private areas of the Service. The Client acknowledges that some technical processing of the content published in the private areas of the Service may be necessary to store and retrieve the content, meet the technical requirements of the connection networks or meet the limitations of the Service.
7.5 Links to third party services. The Service may contain links or communication channels to third party services. These third party services are not under the control of PENDULAR. If PENDULAR has included these services in the Service, it is provided for your convenience only. The inclusion of these does not imply the approval by PENDULAR of any third party website, service or product. PENDULAR reserves the right to disable access to any third-party service that the Client publishes on the Service.
7.6 PENDULAR will not be the owner of any data of the Client. PENDULAR makes periodic backup copies of the Client’s data in order to be able to recover them in the event of an error within the data centers it uses to maintain the Service. PENDULAR will make every effort to recover the client’s data in case of need, using its last backup or previous ones if the latter is wrong. The Client, and not PENDULAR, will be solely responsible for the accuracy, quality, integrity, legality, reliability, suitability, intellectual and industrial property and rights of use of said data.
Only the Client may use his or her account of the Service. However, PENDULAR may allow the Client to set up additional member accounts and dependent on the Client’s contract (“Associated Accounts”). PENDULAR may limit associated accounts. The Client will be responsible for all the activity that is carried out with her account of the Service, as well as with the associated accounts and their passwords. The Client will be solely responsible for supervising the use of his Service account, and for any use or misuse of his Service or Service account derived from the use of passwords or user names selected by the Client or issued by him, by part of associated accounts or third parties. If the Client is the Authorized User of an associated account, the person or entity that granted the Client access to the Service (the account holder) will have full control over the Client’s associated account. This control includes the right to terminate the Service, close or alter the Client’s associated account at any time and, in some cases, request and receive information on the use of the equipment and the Service in relation to the Client’s associated account.
If the Customer Licensed Service version is a preliminary, demo, or “Trial Version” version, it may not work in the same way as a final version of the feature or Service. PENDULAR reserves the right to change or not to launch a commercial version of any Beta Version of the Service, at any time and without informing the Client. Such Beta Versions, including their user interfaces, features and documentation (“Confidential Information”) are confidential and the property of PENDULAR and its suppliers. For the five years after Customer’s subscription to the Trial Version of the Service or the subsequent commercial version of the Service, whichever occurs first, Customer agrees not to disclose any Confidential Information to third parties, or to use any Confidential Information for that are not internal and related to the use of the Service by the Client. The Client may disclose Confidential Information only to its employees and advisers when they need to know the information and provided that said employees and advisers have signed contracts that include restrictions, at least as protective as those that govern Confidential Information here. The Customer’s duty to protect Confidential Information is more effective than this Agreement. Notwithstanding the foregoing, the Client may disclose confidential information to respond to judicial or governmental orders, provided that the Client notifies PENDULAR in advance in writing, so that the latter may seek protection measures or protect the information by other means. Confidential information does not include information that: (1) becomes public knowledge through acts that are not illegal; (2) it has been received from third parties who have not breached their confidentiality obligations with PENDULAR or its suppliers, or (3) the Client has developed independently without using or obtaining access to the Confidential Information. The Demo service is temporary and PENDULAR reserves the right to decide when the Demo period ends.
PENDULAR and the Client will treat the terms and conditions of this Contract confidentially and will not disclose them to third parties, except for the best performance of the commercial activity between the parties.
11.1 Limited warranty. PENDULAR guarantees that the contracted Services and the Client Software will substantially comply with the description included in the Specific Conditions of the corresponding Service. This warranty is subject to the following limitations:
11.2 Remedies in case of breach of the limited warranty. If the Client informs PENDULAR within the Warranty Period that a Service does not comply with the limited warranty, then PENDULAR, once verifying the existence of the anomaly in the Service, at its choice, (1) will return the amount paid for said Service during the Effective Period or (2) will update said Service to fulfill the guarantee. These are the only means available to the Client for breach of the limited warranty, unless applicable law requires that others be provided.
11.3 Notice of exclusion of other guarantees. Other than this limited warranty, PENDULAR makes no other express or implied warranty. PENDULAR excludes any implicit statement, guarantee or condition, in particular any guarantee of merchantability, fitness for a particular purpose, satisfactory quality, ownership or absence of infringement. These exclusions of guarantee will be applicable unless the applicable legislation does not allow them.
12.1 Limitation of liability. Except insofar as otherwise provided in this Section, PENDULAR’s liability to the Client under this Agreement is limited, to the extent permitted by applicable law, to direct damages with the quantitative limit of the amount that, during the twelve months prior to the presentation of the claim, the Client has paid PENDULAR for the Client Service and / or Software that give rise to said responsibility. These limitations will apply regardless of whether the liability is based on breach of contract, non-contractual liability (including negligence), strict liability, breach of warranty or any other legal aspect. However, these monetary limitations will not apply to:
12.2 Exclusion of certain damages. To the extent permitted by applicable law, and regardless of the legal basis of the claim, neither party, nor its subsidiaries or suppliers, will be responsible for any type of indirect, consequential, special or incidental damages, or damages for loss of profit, interruption of business activity or loss of commercial information arising in connection with this contract, even if the possibility of such damage had been warned or although it would have been reasonable to foresee the possibility of such damage could occur. However, this exclusion does not apply to the liability of either party for violating their confidentiality obligations or the intellectual and industrial property rights of the other party.
Due to the fact that an audit is required, PENDULAR will not be giving up its rights to demand compliance with this Contract or to protect its intellectual and industrial property by any other means permitted by law.
14.1 Notifications addressed to PENDULAR. Notifications, authorizations and requests in relation to this Agreement must be sent by email, or by regular or express mail, or by express courier, to the addresses listed below. Notifications will be considered delivered on the date stated in the acknowledgment of receipt. The termination of the Contract, of a Subscription or the cancellation of a Subscription must be made through the contact of the PENDULAR customer service department, by email, call or chat. Notifications, as well as copies, should be sent to:
SUBJECT: PENDULAR USERS ATTENTION
C / Martín de Vargas nº40 CP 28005 Madrid
14.2 Assignment. The Client may not assign or transfer this Contract. PENDULAR may assign this Agreement to its Subsidiaries or to a third party.
14.3 Conservation. If a court declares that any provision of this Agreement is illegal, invalid or unenforceable, the rest of the document will remain in force and this Agreement will be modified to give the deleted provision the greatest possible effect.
14.4 Waiver. No waiver to remedy a breach of this Agreement shall imply a waiver of any other breach. All waivers must be in writing and signed by an authorized representative of the party making the waiver.
14.5 Applicable law. This offer will be governed and interpreted by the Spanish Law that is applicable to it.
14.6 Conflict resolution. It is the will of the parties to expressly renounce the judicial jurisdiction and submit to arbitration any controversy, question or incidence that may arise between them in relation to this offer, which will be carried out by a single arbitrator appointed by the illustrious College of Economists of Madrid, whose regulations are submitted. Both parties expressly state their irrevocable commitment to comply with the arbitration award that may be issued. The place of arbitration and issuance of the award will be Madrid and the arbitration will take place in Spanish.
14.7 This Contract is not exclusive. The Client is free to enter into license agreements, promotion or use of software or services that are not from PENDULAR.
14.8 Complete contract. This Contract, the Subscription Agreement for the Provision of Services and the prices available and stipulated in the Order constitute the entire contract in relation to its object and replace any previous or simultaneous communication.
14.9 Subsistence. The provisions regarding fees, restrictions on use, transfer of licenses, export restrictions, defense against claims for infringement of rights or violation of business secrets, limitations of liability, confidentiality, verification of compliance and obligations in the resolution and provisions of this Section “Additional provisions” will continue in force after the termination of this Agreement.
14.10 Force majeure. Neither party will be responsible for a breach due to causes beyond the control of the parties (such as fires, explosions, blackouts, earthquakes, floods, major storms, strikes, embargoes, labor disputes, acts of civil or military authority, wars, terrorism, including computer terrorism, natural phenomena, acts or omissions of Internet traffic services, actions or omissions of governmental or regulatory bodies, including the approval of regulations or other government acts that affect the Provision of services). However, this Section will not apply to the Client’s payment obligations established in this Contract.
14.11 Natural disasters. In the event of a natural disaster, PENDULAR may post information or provide additional assistance or rights at www.pendular.io.
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