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This is a contract between you (the CLIENT) and us (YERBABUENAATHENTO.) This contract describes the services which we are going to offer you, how we will work together, and other aspects of our business relationship. This is a legal document, so some of the terms of this contract use legal language; we have tried to make it as easy to understand as possible. These terms are important and we cannot provide you with our services unless we know that you agree to them. By using the service, you agree to the following terms:

  1. YERBABUENAATHENTO's main activity is the marketing of products for document management software, and we have the expertise and equipment necessary to provide such services. YERBABUENA ATHENTO guarantees to have the means to perform the service, operations and everything related to its infrastructure, in strict accordance with the laws of both Spain and the European Union.
  2. You, the client, are a business which wishes to hire part of the services offered by the Supplier.
  3. Acceptance of, and access to or use of the Athento Cloud Service implies acceptance of each and every one of these conditions and that, unilaterally and at any time, may be established by YERBABUENAATHENTO. It is the responsibility of the user to read the general conditions use in effect each time they access the Service, notwithstanding that such modifications may be indicated.
  4. That the parties accept and abide by the contents specified in this Agreement and the accepted sales offer detailing specific products and services contracted by the customer, describing the general terms of delivery of Athento Cloud Service. Both sections are inseparable and must be interpreted together.

That, pursuant to the foregoing, the Parties from their free and spontaneous will, accept the present general terms of delivery of the Service, subject to the following: 

 


CLAUSES

1. Aim

In virtue of the present Contract, YERBABUENA ATHENTO promises to provide the services set out in this contract, in the terms and conditions which are established in the Terms of Service of the Client in the present Contract.

As such, the CLIENT promises to put all needed resources in their possession to make it easier to provide service, and to meet the obligations derived from this Contract, related to duration, payment methods and dates, conditions of use of service, etc.

2. Athento

YERBABUENA ATHENTO will proceed to provide Athento Cloud Service to the CUSTOMER. Such provision is made according to the methods set out in this contract.

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The Client’s use of Athento, according to the terms and conditions stated in this Agreement, constitutes acceptance of the Terms of Service and the tacit validation of the work carried out by YERBABUENAATHENTO, without it being necessary for the CLIENT to explicitly verify YERBABUENAs’ ATHENTOs’ products and services.

 


3. Athento Cloud subscription service

  • Access: During the subscription period, YERBABUENA ATHENTO will provide the CLIENT with access to use the subscription service, as set out in this Agreement.
  • Limits: Use of the service implies the acceptance of the limits purchased by the CLIENT which can be applied to the number of users, calls to the API, the number of documents, number of instances, the volume of information stored, the number of pages processed, etc. Any limit to the service will be specified in the sales agreement accepted by the CLIENT.
  • •Modifications: YERBABUENA ATHENTO will occasionally amend the subscription service ,included by adding or removing features and functions in an effort to improve the customer experience. In no case will YERBABUENA ATHENTO make changes to the subscription service that significantly reduces the functionality of the subscription service acquired by the CLIENT and stipulated in the provisions of this Agreement. YERBABUENA ATHENTO may provide some or all elements of the subscription service through third-party service providers.
  • Additionally characteristics. The client will be able to subscribe to characteristics, functions or additional services by placing a new order.
  • Free trial period: Should the CLIENT register in order to try the subscription service for free, YERBABUENA ATHENTO will provide the service until one of the two following situations happens: a) the time period for the free trial ends; or b) the start date of the CLIENT’s subscription. During the trial period, i) the subscription service will be offered on an “as-is” basis without any kind of guarantees; ii) YERBABUENA ATHENTO reserves the right to suspend, limit or cancel the subscription service for any reason and at any moment, without any prior warning; and iii) YERBABUENA ATHENTO bears no responsibility before the client for damages of any time related with use of the of the subscription service.  Unless the CLIENT subscribes to service payment before the end of the free trial, all customer data in the subscription service will be permanently deleted at the end of the test, and cannot be recovered.

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5. Price

The CLIENT agrees to pay YERBABUENA ATHENTO (on time and according to the terms stipulated in this Contract) the prices as set out in the “Contract Details” section.

The prices of different Athento services may be adjusted unilaterally by YERBABUENA ATHENTO at any time. However, while the Contract is in force, the prices for the application will be those that were included in the sales offer accepted by the CLIENT. Once the Contract has expired, contract renewal rates will be treated as they are set out in the Duration provision of this contract. The discounts agreed to in this Agreement cannot be accumulated and used in future budgets and contracts.

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Once the CLIENT has been notified by YERBABUENA ATHENTO about any non-payment issues, and once the account is 60 days in arrears and the payment plan has not been negotiated, YERBABUENA ATHENTO will undertake judicial proceedings against the CLIENT for the outstanding amount on the Athento Cloud Services until the CLIENT meets its payment obligations.

If YERBABUENA ATHENTO had previously agreed to perform any kind of development or service work for the CLIENT, this work will automatically be suspended from the moment when a the payment is in arrears, and this situation will continue until the outstanding amount is settled.

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  • Subscription prices:  The monthly subscription fee will not change during the period of the Contract, as long as: i) the CLIENT does not exceed the limits in the Contract for users, capacity or other aspects; ii) there are no changes to the plan or iii) the CLIENT does not acquire additional products or services. YERBABUENA ATHENTO will supervise or audit the limits set out in the subscription contract.
  • Adjustments to the subscription prices in the upcoming billing period: If the CLIENT exceeds the established limit during a billing period, the subscription or monthly price will be adjusted to reflect those new limits, including the extra capacity used during the previous month. Our prices and limits are set out at: http://www.athento.com/athento-cloud/precios/.
  • Payment with credit cards: CLIENTs paying with credit cards authorize the charges and all fees payable, to their credit cards or bank accounts at the beginning of each billing period. This includes any updates and extras to customer contracts during the time frame of the Contract. The CLIENT authorizes YERBABUENA ATHENTO to use third-party process payments, and consents to the disclosure of payment information to such third parties. The same applies if the CLIENT pays using PayPal or Direct Debit.
  • Payments with invoices: All amounts invoiced are to be paid within thirty (30) days of the invoice date, unless otherwise specified in the agreement accepted by the CLIENT.
  • Sales tax: The rates quoted in this Contract, as well as those published on Athento’s  website Athento, do not include taxes, which YERBABUENA ATHENTO charges accordingly. The CLIENT agrees to pay any taxes applicable to their use of the subscription service. If the Customer is obliged to deduct or withhold any tax, the amount deducted or withheld as required by law must be paid, meaning that YERBABUENA ATHENTO must receive full payment for the full amount, as if there were no deduction or withholding.
  • Direct Debit fees: CLIENTS located in countries outside the European Union who use wire transfers as their method of payment assume the entire cost of transaction, so that YERBABUENA ATHENTO receives the full price specified in the offer accepted by the CLIENT. 

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Conversely, running over the limits does not require that new budgets be delivered to the customer. The limits will be automatically billed as overage in the following month in the terms indicated in the Prices clauses.

YERBABUENA ATHENTO reserves the right to change the terms for the Athento Cloud Service when it deems appropriate. In any case, the conditions that were in effect when the CLIENT signed the contract will apply to each CLIENT

Since YERBABUENA ATHENTO regularly updates its Customer Terms of Service, the CLIENT will receive notification of such changes via e-mail.

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If either Party should act in a negligent manner, or in a manner that infracts on compliance with the obligations set out in this contract, that Party will be held responsible for any damage or anything affecting the other party. The Party which has to face any kind of loss or damage under the action of the counterparty may claim compensation for any such damages.

YERBABUENA ATHENTO commits to meet indicators or KPIs for providing services, their time frames and quality milestones regarding the levels set out in the sales offer. Similarly, the CLIENT commits to making all measure in their reach available to make YERBABUENA’s ATHENTO’s work possible.

9. Resolving the contract

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b) For lack of payment by the CLIENT to YERBABUENAATHENTO, in the terms and time frames established in this Agreement.

c) For material breach by YERBABUENA ATHENTO regarding time or terms of this Agreement, provided that the terms have not been modified after signing it or the CLIENT did not include specifications and requirements not covered by this contract.

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The Parties undertake to take steps regarding both their employees and third parties who may have some connection with this Agreement, to ensure compliance with the agreement in this clause. Upon termination of this Agreement, the Supplier will destroy any information that has been stored in any medium or has been reproduced, using any process.

The CLIENT gives YERBABUENA ATHENTO the right to add its name and logo to the list of clients that Athento works with, and to place the CLIENT’s logo on Athento’s website.

Both parties commit to maintain maximum secrecy regarding data of a personal nature to which they may have access, in accordance with the terms of this Contract; and to observe all of the legal provisions which are contained in Organic Law 15/1999 (13 December), regarding Protection of Data of a Personal Character.

YERBABUENA ATHENTO expressly declares that it recognizes its obligations to meet the requirements set out in Organic Law 15/1999 (13 December), regarding Protection of Data of a Personal Character.

YERBABUENA ATHENTO and its staff responsible for the execution of tasks agree to maintain the strictest secrecy regarding the personal information which could be accessed during the execution of the services under this Contract.

YERBABUENA ATHENTO agrees not disclose such information, either through third parties or companies, or make information available to third parties without the prior written consent of the CLIENT.

YERBABUENA ATHENTO will inform its staff, associates and subcontractors of the obligations under this Agreement concerning the processing of personal data.

YERBABUENA ATHENTO will make as many caveats as necessary to its staff and partners, in order to ensure compliance with such obligations.

The confidentiality obligations set out in the clause regarding personal details will last indefinitely, remaining in force after termination, for any reason, any relationship between the CLIENT and YERBABUENAATHENTO.

In any case, YERBABUENA ATHENTO will not undertake any processing of personal data by the CLIENT under this Agreement, and as such it will not be construed in any way that it is appropriate for YERBABUENA ATHENTO to assume the figure of the data processor, as described in Article 12 of the Organic Law on Protection of Personal Data.

However, if on an exceptional basis YERBABUENA ATHENTO has access to any personal data held by the CLIENT, in fulfillment of its obligations under this Contract, YERBABUENA ATHENTO will only access the personal data of customers and other individuals related to the CUSTOMER if such access is deemed necessary to fulfill the obligations. YERBABUENA ATHENTO will:

  • Use personal information to which it has access exclusively to meet its contractual obligations to the CLIENT.
  • Observe the safety measures which have been adopted by the CLIENT to ensure confidentiality, secrecy and integrity of personal data as well as other measures that apply in specific cases as established by Royal Decree 1720/2007, of December 21, approving the Regulations implementing the Organic Law 15/1999 of December 13, Protection of Data of a Personal Character.
  • Destroy personal data once the contractual provision has been met, such as any medium or document containing any personal data that has been processed.
  • Documentation will be delivered to YERBABUENA ATHENTO for the sole purpose of the tasks under this Contract and it is forbidden for YERBABUENA ATHENTO and any of its staff responsible for implementation, reproduction by any means and total or partial transfer to any individual or legal entity. This also extends to the proceedings of of such tasks. In the event that YERBABUENA ATHENTO uses the data for other purposes, communicated or use in violation of the provisions of the Contract, shall be liable for the offenses committed.
  • YERBABUENA ATHENTO commits to not giving information and data provided by the CLIENT for any other use that is not set out in this Contract.

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Moreover, the PROVIDER warrants that it has an insurance policy that covers any compensation that has to meet the PROVIDER on behalf of CLIENT for incorrect and irregular delivery of the service. YERBABUENA ATHENTO has liability insurance coverage of up to €450,000.

YERBABUENA ATHENTO guarantees the CLIENT the proper functioning of Athento for use according to the intended purpose, embodied in this document, responding in any case that defects occur to materials for manufacturing.

YERBABUENA ATHENTO is not responsible for any defects arising from faulty or incorrect use of Athento.

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On the contrary, it does not include any changes to the software that are made after the fact, nor does it include any complementary development work.

YERBABUENA ATHENTO agrees to address any weaknesses in Athento, provided they be the type of defects which YERBABUENA ATHENTO is responsible for fixing, pursuant to this Agreement and in accordance with the sales agreement signed by the CLIENT, since the time the fault is discovered by the CLIENT, to the time when the remedy is available through contact channels, according to the CLIENT’s sales agreement.

The CLIENT acknowledges that it understands how Athento works, as well as accepting the particular ways in which Athento functions; the CLIENT, therefore, relinquishes the right to demand compensation from YERBABUENA ATHENTO for any damages and requiring any damages arising from material defects from manufacturing, of those which are dealt with in this clause.

The CLIENT, in any case, agrees to use Athento according to the rules and laws applicable at all times, in good faith, with the morals and ethics required. In this sense YERBABUENA ATHENTO at no time be liable for the possible use that can be given to the object of this service.

Moreover, YERBABUENA ATHENTO is not obliged to provide customer support when levels exceed storage, pages, users or CPUs in the plan, as described in the contract and the CLIENT has not paid for overage on the use of these services.

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This contract constitutes a purely commercial relationship and cannot be interpreted in any other way.

At all times, YERBABUENA’s ATHENTO’s hiring practices are in line with the principles enshrined in the Spanish Constitution and the Workers’ Status, which means that, under no concept, does YERBABUENA ATHENTO take part in any illegal hiring practices.

YERBABUENA ATHENTO reserves the right to determine which personnel are assigned to carry out the development and implementation of the project in product development and contract services, it also reserves the right to replace or reassign the staff, notwithstanding client considerations, YERBABUENA ATHENTO will try to respect requests for any specific staff members, if any specific requests are made.

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The CLIENT expressly renounces hiring, directly or through third parties, any employee of the PROVIDER while not at the end of the current Agreement and for two years after the termination thereof; should that happen, the CLIENT will pay the PROVIDER €100,000 in compensation for each employee that has been hired away from YERBABUENAATHENTO.

Furthermore, any members of staff that have been recruited directly or indirectly by any of the parties will be the direct and exclusive responsibility of each of the respective parties; therefore, the party which hired the staff unconditionally accepts sole pattern of every single person involved (in any way) being managed or supervised for work dealing with development, implementation, dissolution, liquidation and settlement of its obligations. This also means that the other party will be freed of any responsibilities that may happen during the time the contract is in effect, freeing the other party from any liability arising against it at all times, for anything related to professional, labor and/or trademarks of the latter.

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Cited honoraria do not include travel costs, mail costs, telephone costs, housing and per diem expenses, reproducing reports, any official seals or stamps, translation costs, fees and other expenses which the staff of YERBABUENA ATHENTO may incur while carrying out professional services. These costs will be duly charged to the CLIENT.

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Both Athento, as well as the information that the CLIENT’s users upload to the Athento system, are stored in third-party storage systems which fall under the responsibility of Spanish law, and which are physically located in European Union countries and, therefore, under the application of all the regulations of Spanish law. These systems contain all of the required security features to avoid the loss, alteration or unauthorized access to the data by third parties, maintaining at all times the confidentiality and the integrity of such data, as well as strictly following the Law in effect.

YERBABUENA ATHENTO commits to providing service regarding security in accordance with the terms that are set out in its Security Policy, which can be found at  https://athento.atlassian.net /wiki/pages/viewpage.action?pageId=17367107

The company providing cloud infrastructure to Athento has been granted ISO 27001 certification and the AFNOR Seal of Information Safety. Data are located on servers located within the European Union, and meet the requirements set out by the Spanish Organic Data Protection Law.

YERBABUENA ATHENTO has, in its possession, the auditors’ reports which contain information about Athento software. Should any security-related issues arise, YERBABUENA ATHENTO will offer legal support and all of the forensic information on the CLIENT’s affected services, in order to identify the cause, the method and the leakage point.

18. Backup

YERBABUENA ATHENTO has its own Backup and Data Recovery Policy. These can be found on the Internet at the following locations:

As such, YERBABUENA ATHENTO also has a data replication system. Information about this system is set out in the Policies for Athento Service Continuity, published online at:  https://athento.atlassian.net/wiki/pages/viewpage.action?pageId=16842874

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Should the CLIENT decide to obtain personalized adaptations of the Athento software, this will be done through the adaptation and personalization of the software in accordance with the needs and functionalities established in a Consulting Report. Before this report is provided, a document with the prices of services and a less-detailed, more general document will be included in the offer accepted by the CLIENT. That said, the specifications included in the Consulting Report will be specifications that YERBABUENA ATHENTO will adhere to when it comes time to define the requirements that the client will pay for. If there is no Consulting Report, the specifications included in the offer accepted by the Client will be the specifications that apply.

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Both parts recognize, in line with the type of work being done, that the duration and hours needed to develop and comply with the information listed in the Planning of Hired Professional Services are merely a guideline, without being of a binding nature in any way for YERBABUENAATHENTO. As such, the hours listed for professional services and the duration of the specific tasks in each line of work may exceed those listed, without being considered a lack of vigilance or failure to meet these conditions. Should that happen, the hours dedicated to professional services which exceed those agreed to by the CLIENT should be budgeted for separately. 

The CLIENT will be able to purchase packages of hours of professional services that it may recur to. The availability of these hours will always be subjected to YERBABUENA’s ATHENTO’s planning processed and should be requests with a minimum of 15 working days notice. The packages of hours obtained will be valid for one year after purchase, and will not be available after one year.

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Once the CLIENT chooses its specific technical support package and accepts the support package in the purchase offer, this will be provided by YERBABUENAATHENTO, in accordance with the limits and reach set out in the package.

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Both Parties recognize that all rights belong to YERBABUENAATHENTO, whether they be related to intellectual property arising from all the software used adapted and configured as a result of compliance with the contents of this Agreement, as is the case with all software that is developed without subject to the specialties of certain licenses of third parties, which may be part of Athento.

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The Athento logo and other marks, graphics, etc., used in connection with the service are duly registered as industrial property under the ownership of YERBABUENA ATHENTO in Spain and other countries. In no event may consent be construed through this Contract, or that the CLIENT has been given any rights or licenses to use the logo and other identifying marks.

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Once installation of Athento has been completed, YERBABUENA ATHENTO will supply the CLIENT with the user names and passwords needed to administer the account(s).

From that moment on, the CLIENT will be the sole responsible party for the use of those names and passwords. This absolves YERBABUENA ATHENTO of any responsibility or liability arising from any possible misuse of those name(s) and password(s).

YERBABUENA ATHENTO will inform the CLIENT of the procedure to change the password, so that the CLIENT is able to produce their own password(s).

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  • As a default, Athento client data may be stored in the same hardware, as well as through the Athento software itself. That said, for certain Enterprise clients, the data may be stored in independent locations. This sectioning of data will appear in the sales offer accepted by the CLIENT.
  • YERBABUENA ATHENTO has the technical and workforce means necessary to encrypt the data provided by the CLIENT.
  • The CLIENT agrees not to store any data or documents in Athento which fall under the Level 3 category of the Spanish Personal Data Protection Law.
  • The CLIENT bears responsibility for the use that its users make of the documents stored in Athento.
  • Once the contract has been terminated and its renewal is not pursued, YERBABUENA ATHENTO will collaborate with the CLIENT so that the CLIENT can recover their data and documents stored in Athento. To do this, the CLIENT will avail itself of the Exit Plans that are laid out here for public access: https://athento.atlassian.net/wiki/display/ athento30guiadesoporte/Plan+de+Salida+Servicio+Cloud

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  • must not infringe on the rights of third parties, such as with issues relating to intellectual property, privacy, or any other right.
  • must not be defamatory, incurring offenses of calumny, threats or bullying.
  • must not contain obscene or indecent content, including pornography.
  • must not contain racist content or content that provokes racial hatred.

YERBABUENA ATHENTO reserves the right to terminate the contractual relationship if it becomes aware that the CLIENT has failed to meet the terms set out in the clause above.

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Athento Cloud Service may contain information provided by various external suppliers. Furthermore, this service may use other third party services. By registering as a user of Athento cloud, the CUSTOMER accepts that Athento may exchange information with these outside services. YERBABUENA ATHENTO cannot control these external services and does not guarantee continuous, uninterrupted or secure access to them.

25. Cancellations and refunds

YERBABUENA ATHENTO  reserved the right to rescind any or all of the rights of use and/or any of the plans or orders within this Contract, should the CLIENT be in violation of any of the conditions of use.

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26. Analysis of Data stored in Athento Cloud

YERBABUENA ATHENTO reserves the right to perform data analysis use of documents and data stored in the Athento software. This analysis includes, but is not limited to, the most used features, document processing methods that work best, average volumes of stored data, etc. These analyses will be used by the company to improve service provided to its clients.

27. Availability of Service

YERBABUENA ATHENTO will work to ensure that the Athento Cloud service is available on a 24/7 basis, year-round. Nonetheless, in order to guarantee quality of service, YERBABUENA ATHENTO will program various maintenance periods, the timing of which will be communicated in the Maintenance and Continuous Improvement Policy, which is available online at:  https://athento.atlassian.net/wiki/pages/viewpage.action?pageId=17367098

Similarly, YERBABUENA ATHENTO commits to using the service monitoring mechanisms which help to prevent and to quickly correct any defects in providing the service. These mechanisms will be used as set out in the Athento Cloud Monitoring Policy, which is found at:   https://athento.atlassian.net/wiki/pages/viewpage.action?pageId=16842871

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