TERMS AND CONDITIONS OF USE
NEO Soluciones Informáticas S.L. (hereinafter, NEO) is a company whose corporate purpose is, among others, the provision of computer services in the field of software development, mobility projects and fleet management, constituting an important aspect of its commercial activities. These activities include access services to the Work&Track technology platform.
Work&Track is an information system for the management of field services and activities framed in the category of “FMS” (“Field Management Services Software”). The platform, developed entirely by NEO, is marketed in the Software as a Service (SaaS) modality.
Last modified: July 2019
The object of this agreement is to grant a non-transferable and non-exclusive use license to the Work&Track system including its WEB portal, its mobile application, its integration API and the different subsystems that make up the platform.
The use of any of the components of Work&Track Mobile implies the confirmation by the user of this agreement and the conditions it contains. The license to use the platform granted under this agreement does not constitute the purchase of the systems, technologies or copyrights linked to it.
If you do not agree or do not accept the conditions of this agreement, you will not be able to use the Work&Track Mobile system or any of its components.
The following definitions apply to this agreement.
1.2. Active WEB User: defines a User who has logged into the Work&Track WEB in a given month by entering an Authorized Password to access the SaaS System.
1.3. Active Mobile User: defines a User who has logged into the Work&Track Mobile APP in a given month by entering an Authorized Password to access the SaaS System.
refers to the employees, contractors or consultants of a Client or a subcontractor, supplier, business partner or Client of the Client whom the Client authorizes to access the Work&Track System.
1.5. Authorized Pasword: defines a unique username and password for use by a single User (without exchanging passwords).
1.6. Client data: defines the data transmitted, loaded or stored in Work&Track linked to the Client company and its users.
1.7. Technical Support Staff: defines the technical contacts of NEO, who are experts who are knowledgeable about the SaaS System and are capable of performing advanced maintenance and operation tasks.
1.8. Justified downtime:
define any of the following options:
- i. Events of force majeure as established in Clause 11 (11.2.) Of this agreement.
- ii. Data transmission errors beyond the control of NEO not caused by problems linked to Work&Track (for example, crash of mobile phone networks).
- iii. The downtime resulting from Client-developed applications that run on or interact with the SaaS System.
- iv. Downtime resulting from third-party software used by Customer other than SaaS System software and / or third-party software integrations developed by Customer.
- v. Downtime due to Customer network failures. Maintenance outages as long as they do not exceed the service level conditions of the platform (99.9%, that is, not more than 43.8 minutes per month). Maintenance outages include, without limitation, the installation of software updates, service packs, and routine server and application configuration changes. (To the extent possible, NEO will ensure that these interventions are planned, giving at least seventy-two hours (72 h.) Notice in advance and at low-impact hours).
1.9. New version: defines updates and / or new versions of the Software that NEO chooses, at its discretion, to apply to software accessible through the SaaS System.
1.10. SaaS Service: refers to the service, based on Work&Track, provided by NEO to the Client and its Users, which allows access to the system.
1.11. Working hours: Monday to Friday, both inclusive, according to the official calendar of the Community of Madrid and the municipality of Madrid. With hours of 9:00 h. at 6:00 p.m. uninterruptedly.
2.1. For the purposes of this agreement, all information related to the Client, its activities, Clients, products and, in general, any be it technical, economic, operational or of any other nature, to which Neo has had, will be considered confidential information. access under this service.
2.2. NEO undertakes not to disseminate the confidential information regarding the Client to which it has had access as a result of this agreement. NEO will extend this commitment to all its personnel, suppliers or third-party collaborators who, for any reason, participate in the service linked to this agreement.
2.3. NEO will use the confidential information provided by the Client exclusively for the purposes specified in this agreement.
2.4. The confidentiality of the information will remain in force for the duration of the agreement and up to five years after the end of this.
2.5. At the end of the term of the Agreement, or in the event of its early termination, NEO will deliver to the Client all Confidential Information, its copies, notes and / or extracts based on it.
2.6. The obligation of confidentiality shall not apply to that information that should be disclosed in compliance with imperative legal provisions or with a judgment or resolution of a mandatory court or administrative body..
3. DATA PROTECTION POLICY
The use of Work&Track by the Client may involve the processing of personal data, which are the responsibility of the Client and / or the person responsible for Work&Track and its usual service providers.
NEO, in general, complies with the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons (GDPR) regarding data processing personal, as well as with Law 34/2002, of July 11, on Services of the Information Society and Electronic Commerce (LSSICE or LSSI).
Consequently, NEO, for the purposes of regulation (EU) 2016/679 of April 27, 2016 (GDPR), will perform the functions of person in charge of the treatment of said data based on the following:
3.1. The personal data, as well as any other data or information managed by the platform and associated with the Client’s User Accounts, will be the exclusive property of the Client and NEO undertakes not to use them for any purpose other than the execution of this agreement.
3.2. NEO accepts the designation as manager of the treatment of personal data, as well as any other data or information managed by the platform and associated with the Client User Accounts, confirming their direct and in-depth knowledge of the obligations assumed with it and guaranteeing treasure the necessary skills, experience and competencies, including technical skills, to perform such a role.
In particular, NEO undertakes, in relation to personal data, as well as any other data or information managed by the platform and associated with the Client’s User Accounts, to the following instructions and precautions:
- i. Do not transfer or make them available to third parties, partially or totally, temporarily or permanently.
- ii. Do not use them under any circumstances, except in aggregate form and for statistical purposes and to improve the Work&Track platform.
- iii. Treat them in an appropriate, pertinent way and in accordance with the principle of data minimization, as well as in a legal, correct and transparent manner, in accordance with the regulations in force regarding the processing of personal data.
- iv. Guarantee their confidentiality, integrity and availability, including the aspect related to security, as regulated by art. 32 of the Privacy Regulation, excluding the responsibility of NEO regarding the content of the Databases and Personal Data and the use of the same by the Client.
- v. Guarantee adequate protection of the rights of the interested party, supporting the Client in order to fulfill its obligation to respond to the requests of the interested parties for the exercise of their rights, also when said requests are received by NEO, which must communicate them promptly and by written to the Client.
- vi. Use your own organizational structure, identifying and appointing the persons authorized to carry out operations to process Personal Data and Customer Databases, simultaneously indicating the scope of said authorization, giving the appropriate instructions on the conditions of treatment and proceeding to the corresponding training.
- vii. Manage all the obligations related to the appointment as system administrator of its personnel in charge of the management and maintenance of the Work&Track Platform.
- viii. By virtue of the general authorization granted by the Client through this Agreement, use subordinate managers designated in writing, imposing on them, by agreement or other legal act, the same obligations regarding data protection contained in this Agreement and contemplating, in particular, sufficient guarantees of the establishment of adequate technical and organizational measures to satisfy the requirements imposed in the Privacy Regulation, despite which NEO will remain fully responsible to the Client for the fulfillment of the obligations by its subordinate managers.
- ix. Upon written request, make available to the Client the list of eventually appointed subordinate managers and proceed to inform him of possible modifications related to the addition or substitution of the subjects identified for this purpose, thus giving the Client the opportunity to oppose said changes.
- x. Use computer or telematic tools with CPU (central processing unit) located in the territory of the European Union in order to avoid the cross-border transfer of personal data, adopting logics closely correlated to the purposes of the services that NEO is obliged to lend to the Client and in strict compliance with the provisions in force on the matter, also in relation to data security.
- xi. Do not carry out any transfer of Personal Data and Databases, including backup copies, outside the EU or to countries that do not guarantee an adequate level of protection in the absence of written authorization from the Client, it being understood that if the Client authorizes said transfer, NEO must guarantee the conformity of the treatment with the standard contractual clauses approved by the European Commission.
- xii. Guarantee a level of security appropriate to the risk, adopting appropriate technical and organizational security measures, in accordance with the provisions of the Privacy Regulation.
- xiii. If necessary, cooperate with the supervisory authority and make available the documentation eventually required on the occasion of controls or access by you, also proceeding to inform the Client about it.
- xiv. Establish and keep track of treatment activities under art. 30 of the Privacy Regulation.
- xv. Make available to the Client the name and contact information of their data protection officer, eventually appointed under arts. 37 and following of the Privacy Regulation.
- xvi. In the aspects that concern it, provide technical assistance to the Client regarding the obligations inherent to: (i) security of treatment, (ii) notification of a violation of personal data to the supervisory authority under art. 33 of the Privacy Regulation, (iii) communication of a violation of the security of personal data to the interested party under art. 34 of the Privacy Regulation, (iv) impact evaluation related to data protection under art. 35 of the Privacy Regulation, (v) prior consultation pursuant to art. 36 of the Privacy Regulation.
- xvii. In case of accidental or unlawful violation of the Client Databases, which leads to the destruction, loss, alteration, unauthorized disclosure or access to the Data transmitted, preserved or otherwise processed, proceed to:
to. Inform the Client, without undue delay and, in any case, within 48 hours of becoming aware of the event.
b. Provide the Client with timely information about the nature of the violation, the categories and the approximate number of data and interested parties involved, as well as the probable consequences of the violation and the measures adopted or whose adoption is proposed to correct or mitigate its harmful effects. .
c. If it is not possible to provide the aforementioned specific information within the established period, indicate to the Client the reasons for the delay, providing in any case initial information regarding the violation found and useful to the Client for the purposes of the corresponding notification.
- xviii. Provide the Client with all the information regarding the technical, organizational and security measures adopted, effectively necessary for regulatory compliance and that are formally requested in writing by the Client for the fulfillment of its legal obligations and demonstrate the adoption of technical and organizational measures. adequate. NEO will also contribute to the inspection and audit activities that the Client wishes to carry out, either directly or through another subject commissioned by it – the Client fully bearing the corresponding costs -, it being understood that said activities may not be carried out by the Client with a frequency greater than twice for each year of the Agreement and that they must be agreed with NEO mediating a notice of at least 21 days and in any case respecting the normal operation of NEO.
- xix. If it is found that an instruction given by the Client violates the applicable legal provisions, report it immediately.
- xx. Guarantee that the treatment that has been entrusted to it takes place respecting the obligations set forth in article 32 of the Privacy Regulation and the Supervisor’s Provisions.
- xxi. Ensure that Personal Data is stored and controlled, also in relation to the knowledge acquired on the basis of technical progress, the nature of the data and the specific characteristics of the treatment, in order to minimize the risks of destruction or loss, even accidental, of said data, of unauthorized access or of treatment not allowed or not according to the purposes of the collection, through the adoption of appropriate and preventive security measures.
- xxii. Adopt adequate measures to prevent unauthorized physical access, damage and interference with the Personal Data processed in the scope of the execution of your order, as well as the appropriate and safe operation of the data processing structures through the implementation of measures. physical and environmental security, in addition to the appropriate protection tools against malicious software and data loss.
- xxiii. Adopt procedures to regularly test, verify and evaluate the effectiveness of technical and organizational measures in order to guarantee the safety of the treatment.
3.3. NEO ensures that it will protect the confidentiality of emails exchanged with the Client. The Client agrees to comply with the same level of confidentiality with the emails received from NEO.
3.4. Once this agreement is finished, all the data must be destroyed or returned to the Client, as well as any support or documents that contain any data object of the treatment for the provision of the Work&Track service.
4. OF THE OBLIGATIONS
NEO is obliged to:
i. Maintain Work&Track with an availability level of 99.9%.
ii. Evolve the platform, at its own discretion, during the duration of the agreement.
iii. Perform adaptive maintenance of the platform to ensure its compatibility with commonly used mobile operating systems and browsers (at least two latest major versions of Android, iOS, Chrome, Firefox and Edge).
iv. Regularly organize (once a month) meetings with the Client to analyze the health status of the platform, evolutions in progress and any other issue that may be relevant to the exploitation of Work&Track;
v. Offer a customer service, or HELPDESK, during business hours.
The CLIENT is obliged to:
i. The operability, good condition and use of the computer equipment used to access the platform.
ii. Report any failure, incidence or anomalies in the normal use of the platform.
iii. Regularly pay the invoices for service fees established particularly for each one at the time of subscription.
5. BREACH OF OBLIGATIONS
The breach by NEO, or the Client, of the obligations agreed in this agreement will give the parties the right to terminate the agreement without having to fulfill the agreed consideration, without prejudice to claiming any damages that may have been caused and / or the expenses that may have been caused.
In any case, both parties agree to act in good faith at all times during the term of the agreement, also observing due diligence.
6. TECHNICAL SUPPORT AND CONSULTATIONS
6.1. NEO will offer technical and functional support via phone and email, throughout the term of the agreement and during business hours.
6.2. The response time will be proportional to the severity of the error, adjusting, in any case, to the following criteria and response times:
i. Critical priority: when the service is seriously affected and the system cannot be used. In these incidents there are no alternatives to the use of the system and must be resolved with the highest priority.
These cases are attended in real time. Upon receipt of the incident, a high-level technician will begin to work on the solution with the priority of restoring service.
ii. High priority: The service is not available to many users, but activity can be maintained in other ways. There are no alternatives available for affected users to access the service while the issue is resolved. Very urgent support queries are included in this chapter.
The response time is 2 hours. Within this period, a high-level technician will begin to work on the resolution of the incident with the priority of restoring service.
iii. Medium priority: Not all functionalities are available or sporadic failures appear. There are alternatives available for the execution of the activities. Some tasks may be affected until the issue is resolved. Urgent support inquiries are included in this chapter.
The response time is 4 hours. In this period, a high-level technician will begin to work on the resolution of the incident with the priority of restoring service.
iv. Low priority: incidents with minimal degradation of the service that do not affect its availability to the Client or are not visible to the end user or those that do not affect the execution of the tasks. Non-urgent support inquiries are included in this chapter.
Work on the incident will begin on the next business day. Within this period, a high-level technician will begin to work on the resolution of the incident with the priority of restoring service.
6.3. The indicators established to measure the availability of the platform and the level of service will be measured monthly and will be shared with the Client. This study will include, at least, the following indicators:
i. Average response time to incidents.
ii. Incident resolution time.
iii. Service availability.
6.4. The response time is defined as the time that elapses between the incident being received and the technician beginning to work on its resolution. If necessary, the Customer will be contacted to indicate if any corrective action needs to be taken or the scope of the actions to be taken to correct the problem.
6.5. The availability of the system is measured based on its main components and the possibility of having backup material in the event of failures in these systems. The availability offered by NEO is 99.9% monthly. This indicator will be equal to:
Availability = Number of hours of active duty / total number of hours per month.
7. WITHDRAWAL OF THE SERVICE PROVIDED
7.1. The Client may request the cancellation of the service by requesting two (2) months before the start of the new subscription period by email or in writing. Once this date has passed, NEO may claim payment of the time consumed for the new period until completing the anticipated month in advance. In any case, the Client may not unsubscribe from the service before the agreed minimum stay time is met. In case of requesting the cancellation before the agreed minimum time elapses (which will depend on the conditions accepted in the offer), the Client must pay NEO the full amount of the contracted fee.
7.2. The withdrawal will be made preferentially on a business day (Monday to Friday) and will be activated between 10:00 h. and 2:00 p.m. The full unsubscribe service will only be activated by a NEO member.
7.3. In any case, NEO will not be responsible for the consequences that may arise from the interruption of the service subject to the termination.
7.4. Once the withdrawal is made, NEO has 30 business days to delete all the Client’s data from the platform after sending a copy of it in electronic format.
8. EARLY TERMINATION CONDITIONS
8.1. NEO may terminate this agreement in the event of non-payment of one (1) monthly invoice, or of any amount whose payment has been assumed by the Customer, upon request for payment in accordance with the following paragraph.
8.2. The Client may terminate this Agreement in the event of continued breach by NEO (at least three consecutive months) of the agreed services and their Service Levels (SLAs).
8.3. The resolution action may be exercised as a consequence of a regulatory change, if the impossibility of continuing to provide the contracted services is determined.
8.4. In case of detecting any illegal conduct or activity, NEO reserves the right to deny or cease the contracted services without prior notice. The possible illegal activities or conducts on the part of the Client that would suppose the denial or cessation of the contracted services are listed below:
i. It is prohibited to modify, adapt or hack the Work & amp; Track platform, or falsely indicate that another website is associated with it.
ii. The sending of messages, or the use of messaging functions, to unknown users or in order to disturb and interfere with the normal development of system activity is prohibited.
iii. It is prohibited to use the platform for the transmission, installation or publication of any type of virus, malicious code or any other type of file or program harmful to the development of the service and platform.
iv. Register on the Platform using a false identity, impersonate third parties or carry out any other action that may confuse other users of the system.
v. Use the Platform in order to get any data from another user.
vi. Break or attempt to break the security or authentication measures of the Platform or any system connected to it, or any security measure included in the contents of the Platform.
vii. Upload content that is not the owner or does not have the necessary authorizations for it.
viii. Using the Platform illegally, contrary to good faith, morality or public order.
ix. Prevent the normal development of the processes carried out on the Platform.
x. Any other activity or conduct that is detrimental to the development of the system and its users.
9. GUARANTEES OF THE SERVICE PROVIDED
9.1. NEO will be responsible for the correct operation of the hardware and software that it is in charge of according to the contracted service, assuming the costs of the incidents produced in the service that are the responsibility of NEO. NEO does not guarantee a higher level of service than that specified in this agreement, nor can it be the object of any claim in the event that the service down time is less than the agreed service level.
9.2. NEO will not breach its obligations to the extent that its performance is delayed or hindered by causes beyond its control, including, without limitation, acts beyond its control, acts of the Client, acts of third parties that are not under NEO control, acts of any government body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or any other labor disturbance, interruption or delay in transportation.
10. ASSIGNMENT AND SUBCONTRACTING
10.1. NEO may, with the explicit consent of the Client, assign or subcontract part of the direct services provided to the Client subject to this Agreement.
10.2. Client’s consent to NEO to subcontract does not release NEO from the obligations and responsibilities assumed under this Agreement. In any case, NEO will be responsible to the Client for the breach by the subcontractor or its staff of the obligations that result from the subcontracted services.
10.3. NEO may subcontract the hardware and infrastructure servers where the services provided will be hosted. The Client accepts and authorizes the personal data deposited in the Work & amp; Track system to be stored on devices outside the Client’s and NEO’s premises, where the level of security corresponding to the type of file processed will be guaranteed.
10.4. NEO is committed to using first-rate data processing center (CPD) service providers, hardware servers and infrastructure, with international recognition and prestige that, in addition, guarantee that all the physical resources used, including backup and copies of security, are within the European Union.
10.5.. Exclusively the personnel with the authorization of the NEO security manager, as well as the maintenance personnel of the subcontracted company for the hardware accommodation, may have access to the places where the physical equipment is installed.
11.1. NEO will not be responsible for loss of profits and damages as a result of the use, operation or performance of the software, being solely responsible for the acts performed that are necessary for the fulfillment of its obligations in accordance with this agreement and its penalties.
11.2. NEO will not be responsible for the breach of its obligations defined in this agreement, if the fulfillment of these obligations has been prevented, interfered with or reasonably delayed by circumstances beyond NEO’s control. These events will be, for example and among others, acts of force majeure, strikes, riots, lockouts, acts of war, epidemics, official acts or regulations, fires, lightning, earthquakes, floods, catastrophes and other events.
11.3. The Parties will be subject to the obligation to indemnify those damages that they cause to the other Party as a consequence of the breach of the present Agreement.
NEO’s liability for damages arising from the breach of its contractual obligations will be limited, in any case, to the amount of ONE HUNDRED THOUSAND euros (€ 100,000).
Both Parties undertake to make their best efforts to mitigate the damages resulting from both Parties of the breach of this Agreement. NEO undertakes to contract and keep in force, at its expense, during the term of this Agreement, an insurance policy that covers the risk of expenses, liabilities and damages that may arise for the Client as a result of the provision of services agreed in this Agreement. The insured capital may not be less than the amount of ONE HUNDRED THOUSAND euros (€ 100,000).
12. INTELLECTUAL PROPERTY
12.1. The terms and conditions agreed in this Agreement do not implicitly or explicitly imply the transfer of any of the rights over the industrial and intellectual property of the Software, its manuals or the data model. The knowledge and know-how inherent to the Software, as well as the knowledge used to configure it, are NEO’s own and confidential information.
12.2. The Client assumes responsibility for the actual damages that NEO suffers as a direct or indirect cause of the fraudulent use or illegal copying of the programs or this information by the Client’s own employees, forcing himself to adopt the necessary measures so that only authorized persons have access to this protected information.
12.3. The Client must respect the copyright notices that appear in the program or in the original documentation.
12.4. NEO will not be responsible, in any case, for possible infractions of the applicable intellectual or industrial property law on the content stored on the platform by the Client.
13. LABOR CLAUSE
13.1. The personnel who have to carry out the work necessary for the provision of the service will belong to the NEO staff, which for all purposes assumes, with respect to them, the legal status of entrepreneur with all the rights and obligations inherent in this condition, with according to the legislation in force at any time. In this sense, NEO will bear all the personnel expenses that carry out the provision of the service, including those derived from accidents, sick leave and absenteeism in general, being exclusively responsible for the direction, vigilance, dedication and efficiency of the personnel, exercising at all times their power of organization of the activity of its employees, as well as sanctioning and disciplinary. Therefore, it will be on behalf of NEO the payment of the salaries of its staff, as well as Social Security fees and the payment of income tax withholdings.
13.2. The Client will refrain from intervening in the existing labor relations between NEO employees, in terms of wages, professional categories, etc.
13.3. For the fulfillment of the agreed services, NEO will use any of its employees, in a sufficient number to effectively attend said services. At all times, the personnel who carry them out will have the professional qualifications necessary for the development of the work referred to in this agreement.
14. SALE, TRANSFER AND MODIFICATION
14.1. NEO undertakes to include a subrogation clause of all the services defined in this agreement, and during the duration thereof, in the event of any sale, transfer or modification operation in the company’s shareholding.
14.2. This agreement may be replaced by a particular agreement signed with each client, having the latter priority over the former.
15. LEGISLATION AND JURISDICTION
15.1. This agreement is governed in all its aspects, and for all purposes, by Spanish law.
15.2. Both parties (Client and NEO) agree to go to a mediation service to resolve any dispute that may arise due to this agreement.
15.3. In case of not reaching an agreement through the mediation procedure, and expressly waiving any other jurisdiction that may correspond to them, they expressly submit to the Courts and Tribunals of Madrid capital for all litigation issues related to the existence, validity, interpretation, execution or termination of this Agreement.
15.4. In case of invalidity of any clause contained in this Agreement or contained in any of the documents that make up this Agreement, the Parties agree that such invalidity will not affect the validity of the other provisions of this Agreement.