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Description of the Service
The service under this Agreement is a data and Internet access service (the "Service"), which consists of the provision of broadband Internet access with a permanent connection for a flat rate with no timetable and no cap on the volume of traffic sent or received.
The throughput of the Internet access circuit is as indicated in the Offer, and is defined in terms of a maximum non-guaranteed send/receive throughput.
By default, public IP addressing is provided, so that the CLIENT is provided with one public IP address, and a subnet of 256 private (Class C) IP addresses. Private IP addresses are used within the CLIENT's local network. The public IP address is used for output to the Internet by means of network address translation (NAT) of the private IP addresses. The private IP addresses of the local network may be proposed by GIGAS or by the CLIENT. GIGAS shall not be obliged to accept the IP addresses proposed by the CLIENT. GIGAS reserves the right to restrict the number of sessions if the number of simultaneous sessions exceeds 2,000.
The following are not part of the Service and are expressly excluded from the Agreement: backbone access services for ISPs (Internet service providers), data centre backbone access services, data and/or voice operator backbone access services, traffic reseller services, Wifi/Wimax operator backbone access services, or any other mass traffic users.
The Service includes standard installation of all Equipment provided by GIGAS (as specified below) at the CLIENT's location, customer service and telephone technical support, standard troubleshooting and operation and maintenance of the Service and of the Equipment provided by GIGAS. The cost of the standard installation is €150, which GIGAS shall not charge to the CLIENT unless the Service is terminated before 24 months from the date of the Agreement, in which case the CLIENT shall pay to GIGAS this amount as a penalty for failure to fulfil that minimum period, and GIGAS may either bill such cost on the invoice for the Service or bill for it separately.
Operation and maintenance of the Service include any work, whether performed remotely or requiring a visit to the CLIENT’s location, that is required under this Agreement. GIGAS reserves the right to bill the CLIENT for any operation and maintenance costs incurred in connection with resolving any incident caused by the CLIENT.
For a non-standard installation, GIGAS reserves the right to bill the CLIENT for any additional maintenance costs. In this event, if requested by the CLIENT before performance of the maintenance work, GIGAS shall make available to the CLIENT an invoice listing and substantiating such additional costs.
In general, the basic charges applicable to the Service are the installation fee and the fixed monthly fee in advance for the type of Service subscribed to. In any event, the charges to be applied will be those indicated in the Offer.
In addition, the CLIENT may subscribe to the Optional Services indicated in the Offer. The provision of Optional Services is governed by the terms stated in the Offer. Optional Services subscribed to subsequently by the CLIENT will be provided under the terms and conditions and Rate Plans applicable to each such Optional Service at the time it is subscribed to.
Installation of the Service
GIGAS shall procure, manage and maintain the access line in such a way that GIGAS acts as the sole point of contact with the CLIENT, even if GIGAS may provide the Service over a third party's network.
Provision of the Service is subject to its installation being technically feasible. The CLIENT must have any necessary permission for the installation at the intended premises or facilities and shall ensure that GIGAS or the third party appointed by GIGAS to carry out the required installation work may access such location.
GIGAS shall establish the connection to the Service within thirty (30) calendar days from the signing of the Agreement if technically feasible. GIGAS and the CLIENT will agree on the date of installation of the Service. Installation of the Service and the Equipment at the CLIENT's premises will, as far as reasonable, be performed in accordance with the CLIENT's instructions. However, GIGAS reserves the right to determine the location of the connection points and the cable layout on technical grounds.
The CLIENT shall, within business hours, allow access by GIGAS personnel or the personnel of its partner enterprises to the CLIENT's premises once such personnel has been properly authorised and identified by the CLIENT for the purpose of verifying the CLIENT's compliance with all obligations under the Agreement and to conduct any new installations, de-installations, changes, inspections or location or repair of faults. The CLIENT shall as soon as practicable notify GIGAS of any anomaly of which the CLIENT becomes aware. The CLIENT shall also provide access for the material to be removed, if necessary, at the date of termination of the Agreement or whenever required by law or by contract. GIGAS may, with prior notice to the CLIENT, introduce changes to the CLIENT's systems, installations and numbering codes and make any other such changes as may be required by the organisation and needs of the Service or the expediencies or requirements surrounding technical and/or legal developments. If applicable, and without prejudice to the General Terms and Conditions of Service set out in Appendix 4, the installation performed by GIGAS at the CLIENT's facilities is under a warranty for a period of one year from the activation of the Service. Such warranty excludes any damage caused by improper or abnormal use of the installation or by any manipulation, modification or repair by a third party not authorised by GIGAS, or by negligence, accident, flooding, electrical surges, lightning or force majeure or, in general, by any event beyond GIGAS' control.
Other terms and conditions
In order to protect the integrity of the GIGAS and/or third-party network used by GIGAS to provide the Service and to provide such Service in accordance with the quality levels warranted to the CLIENT, GIGAS may suspend the Service and disconnect from the network any equipment used by the CLIENT if the CLIENT does any act that could cause injury to persons or damage to equipment, systems, media and/or networks of third parties and/or of GIGAS (such as, inter alia, computer viruses, Trojans, ping flood attacks, denial of service attacks, bombing or spamming attacks, or any analogous action) as soon as GIGAS sends a demand to the CLIENT to cease and desist from any such action. If the CLIENT, without authorisation and using fraudulent and illegal means, connects to a third-party system (server, firewall, router, etc), GIGAS may immediately suspend the Service and disconnect the CLIENT's equipment from GIGAS' network. Any action taken by GIGAS under this paragraph will be without prejudice to GIGAS' right to recover any damages caused to it, and no Service suspension or equipment disconnection as referred to above will give any right or entitlement to the CLIENT.
Equipment
If included within the Service, GIGAS shall deliver to the CLIENT, in perfect working condition, the materials, equipment and accessories (collectively, the "Equipment") required for provision of the Service, which will be properly identified in the Offer.
The Equipment provided by GIGAS will be on loan. The CLIENT will not acquire title to the Equipment nor may transfer or deliver it to any third party, shall hold the Equipment in its possession throughout the term of effect of this Agreement, and may use the Equipment only at the location and only for the purposes under the Agreement. GIGAS may at any time during the term of effect of the Agreement demand, and the CLIENT will be under an obligation to grant, a deposit by way of security, which will not bear interest, in cash or in the form of a bank guarantee, the amount of which will not exceed the value of the Equipment. If after receiving such demand from GIGAS the CLIENT fails to provide that security deposit within fifteen (15) calendar days, GIGAS may withdraw the Equipment or, as the case may be, refuse to provide the Equipment. The CLIENT will then be responsible for having available the necessary equipment for proper provision of the Service, and such equipment will be subject to prior approval by GIGAS.
The CLIENT will be liable for any damage arising from misuse or improper or unauthorised manipulation of the Equipment. Any claim or damage that may arise from this will be to the account of the CLIENT.
The CLIENT shall properly keep in its custody and use the Equipment, materials and systems delivered to it by GIGAS. Therefore, in the event of loss, theft, disappearance, destruction or damage not arising from ordinary use of all or part of the Equipment, the CLIENT shall notify GIGAS within three (3) calendar days.
The CLIENT shall indemnify GIGAS in an amount equal to all costs arising from the repair of damaged Equipment or the entirety of its original value as at the time of signing of this Agreement in the event of loss, theft, disappearance, destruction or damage requiring repairs the cost of which would exceed the value of the damaged Equipment. The indemnification referred to above must be paid by means of a bank transfer to GIGAS. The amount may be billed within the invoice for the services under the Agreement or billed separately.
For the purpose of continually updating the Equipment, materials and systems owned by GIGAS and delivered to the CLIENT on loan in the event of their becoming technologically outdated, GIGAS may replace such items at no charge to the CLIENT with technologically more advanced items providing better performance. Any such new Equipment or system, as from the completion of its installation, will attract the rates or fees in effect at that time, and will be subject to the same terms and conditions set out in this Agreement in relation to the Equipment.
Without prejudice to the above, GIGAS warrants the perfect condition of the Equipment at the time of its being delivered to the CLIENT and gives an undertaking that, during the term of the effect of such warranty, it shall replace the Equipment if any original defect or vice is found in it.
The CLIENT assumes sole responsibility for any consequence, harm or action that might arise from the configuration, manipulation or improper use of the Equipment or, in general, of the Service.
GIGAS will not be liable for any breach committed by the CLIENT affecting the rights of the manufacturer of the Equipment, including copyrights, trademarks, patents, licences, confidential information or any other right of intellectual property or of any other nature.
After the termination of this Agreement, the CLIENT shall, within fifteen (15) calendar days from the effective date of termination, return to GIGAS the Equipment delivered to the CLIENT in perfect condition of aesthetics and of operation, except for normal wear and tear by reason of use. If the CLIENT fails to perform such return, GIGAS may demand that the CLIENT pay for the Equipment at the value set out in the Offer or in the contractual documents signed between the Parties or in the Service Delivery Specification.
The standard installation of the Equipment comprises installation of Equipment and configuration and testing of such Equipment at the location specified by the CLIENT, which must be accessible by persons with the respective Equipment to be installed, without need of using a crane or other such device, and in satisfaction of the requirements of prevailing safety laws and regulations and the specifications stipulated by the manufacturer of the Equipment. The standard installation does not include modification by GIGAS of existing installations of the CLIENT.
For installation of access network equipment, standard installation may include up to ten (10) metres of fibre optic cabling and placement and configuration of the CLIENT's equipment at the location specified by the CLIENT. Time of execution for standard installation is 30 days from receipt of the properly filled out Agreement.
For a non-standard installation, GIGAS will notify such circumstance to the CLIENT as soon as it is detected. In that event, GIGAS reserves the right to bill the CLIENT for any additional costs of the installation.
The following tasks, which must be requested expressly and would be subject to a prior quotation accepted by the CLIENT, and which would attract the following charges (not including value added tax), are not included:
WiFi service
The Service includes a Wi-Fi facility that allows for creating a wireless network at the CLIENT's premises whereby the subscribed Internet bandwidth is shared among computers connected at the CLIENT's premises. Since Wi-Fi coverage is influenced by the specific configuration of the CLIENT's premises, GIGAS assumes no responsibility if such coverage fails to reach every point of the CLIENT's premises. GIGAS will not be liable to the CLIENT for any damage that may be caused to it if third parties who are strangers to this contractual relationship use Wi-Fi technology to connect fraudulently to the
CLIENT's wireless network and thus benefit from the Internet access bandwidth subscribed to by the CLIENT or access the information contained on the CLIENT's systems.
Service Quality (SLAs)
GIGAS undertakes to provide the Service under the Agreement with ongoing actions to ensure that the Service is provided satisfactorily.
GIGAS, therefore, undertakes to provide the Service in accordance with the Service Level Agreement (or "SLA") set out in Appendix 3 to the Agreement.
Management and maintenance
The CLIENT may approach the Client Service department to handle any administrative or technical matters relating to the Service and telephone technical support for troubleshooting via the GIGAS Client Service Centre.
The Client Service Centre will be available to the CLIENT 24 hours a day, every day of the year, by telephone, post and electronic mail, as indicated below:
Telephone: 900 247 000
Post: In writing to the registered office of GIGAS HOSTING, S.A. at Avenida de Fuencarral 44, Edificio Gigas, 28108 Alcobendas (Madrid), Spain.
e-mail: info@gigas.com
To provide the CLIENT with personalised service, GIGAS makes available a client service helpline at (900247000) managed directly at the GIGAS call centre. There is an emergency technical service available for resolving any problem or requirement relating to the Service.
To provide satisfactory client services at all times, GIGAS may assign an account manager for the purpose of managing and coordinating pre-sales support, overall project management and after-sale services as required to provide enhanced service to the CLIENT.
Moreover, GIGAS may have designed a troubleshooting escalation scheme to ensure the satisfactory quality of the service agreed with the CLIENT, in which event such scheme will be referred to in the Offer.
GIGAS warrants that the Service under the Agreement will conform to the standards of quality required by the laws and regulations that apply at the given time and, beyond this, GIGAS grants a warranty of availability of access to the Service of 97% as measured over a one-month period.
The values relating to the Service availability warranty represent the percentage of time during which the Service is available at the Point of Access. Service availability will be calculated on the basis of a calendar month of 31 days and on the assumption of 24-hour days. Lesser periods will not be considered. Downtime will start to be counted as from when the CLIENT notifies the incident to GIGAS and GIGAS makes the relevant checks and assigns a ticket to the incident.
Any evaluation of whether or not the availability warranty has been satisfied will be based on the technical records of the GIGAS technological platform or such other platform as GIGAS may determine by virtue of the records available. If GIGAS breaches the above warranty one or more times, the CLIENT should notify GIGAS of that fact and, as applicable, submit a complaint accordingly by any means that provides proof of receipt within ten (10) days as from the occurrence of the facts in question. After that period, the CLIENT loses any action it might have against GIGAS on the basis of those facts.
These GENERAL TERMS AND CONDITIONS are an integral part of the Service Agreement signed by the CLIENT with GIGAS.
By signing this Agreement, the CLIENT expressly states that it acts within the scope of its business activity and is aware that GIGAS' Offer is intended only for business clients and not for clients who are consumers. If the CLIENT discontinues its business activity, it must notify such fact to GIGAS immediately and request the termination of this Agreement. Under no circumstances may the CLIENT use the Service for a purpose or in a context other than that of its business activity. Therefore, this Agreement governs the relationship between GIGAS and the CLIENT in connection with the Service. Neither of the Parties may be deemed to be a consumer for any purpose.
1. Purpose
The purpose of these GENERAL TERMS AND CONDITIONS is to govern the manner in which the SERVICE will be provided by GIGAS to the CLIENT in accordance with the description of the Service set out in Appendix 2 of the Agreement and, if applicable, any supplementary services subscribed to by the CLIENT at any time. The Service covered by these GENERAL TERMS AND CONDITIONS must be provided subject to the legal regime set forth herein and in the applicable laws and regulations.
GIGAS may provide the Service through its own network, infrastructure or technology or over those of a third party connectivity, transport or technology provider, and may be provided jointly or separately, depending on the terms and extent of the Service subscribed to by the CLIENT in each specific case.
2. Use of the Service
The CLIENT undertakes to use the Service in accordance with the law, these GENERAL TERMS AND CONDITIONS, the OFFER, the Agreement, honourable conduct, generally accepted good practices, public order and, in general, in accordance with the purpose for which it is provided by GIGAS.
The CLIENT undertakes not to use the Service for unlawful purposes or purposes that may harm the rights of third parties or GIGAS or that may in any way damage, harm or work to the detriment of the Service, the property or the reputation of GIGAS or third parties.
The CLIENT may not commercially exploit the Service and obtain an economic return directly or indirectly from the resale of the Service that forms the subject matter of the Agreement and of these GENERAL TERMS AND CONDITIONS, or of any of the capabilities or functionalities of the Service.
If the CLIENT does make any of the above uses of the Service, GIGAS will be entitled to conduct any of the actions set forth in Clause 7 of these GENERAL TERMS AND CONDITIONS, without prejudice to any other actions to which it may be entitled.
3. Term of the Agreement
The Agreement of which these GENERAL TERMS AND CONDITIONS form part will take effect on the date on which GIGAS activates the Service (the "Service Activation Date") and will run for the duration set forth in the OFFER or in Appendix 2. However, as the case may be, the Agreement may be terminated for the reasons and under the terms set forth in Clause 14 of these GENERAL TERMS AND CONDITIONS.
4. Price of the Service
The Service provided will attract the rates and discounts in effect at any given time according to the type of service and/or product chosen by the CLIENT, as set out in the OFFER and/or in Appendix 2. The taxes in force at any given time will apply to these rates.
The economic terms and conditions established in this Agreement are incompatible with any promotion, discount or other rate that may be published by GIGAS, now or in future, unless otherwise expressly stipulated therein.
The Parties agree that during the term of the Agreement the Charges for the Services must be revised each year (upward or downward) in accordance with the variation of the Spanish General Consumer Price Index (CPI) for the previous calendar year and with the indices established by the Instituto Nacional de Estadística (Spanish National Institute of Statistics) or such agency as may replace it for the whole of Spain. Such adjustment must be made annually on 1 February of each year, prorating such rise or decline of the CPI for the first annual period of the Agreement according to the time elapsed from the signing of the Agreement until the following 1 January. If the final indices have not been published by the date on which the review may take place, the provisional indices may be applied if they are known or, failing this, those of the previous year must be taken into account until the provisional indices are known. The parties shall make the appropriate adjustments when the other indices are known, and the difference, if any, existing between the final data point and the provisional index that was applied must be paid as a lump sum within the first monthly payment following the date on which the final data point is known.
5. Billing and form of payment
Without prejudice to any other billing and payment terms that may apply to the Service under the Agreement (and that may include, inter alia and as the case may be, payments by credit card, payments for use of the Service, etc.), in general, the CLIENT shall pay the price of the Service on a monthly basis as provided in this Clause.
The CLIENT shall pay to GIGAS the registration fees and monthly subscription fees set out in the OFFER or in Appendix 2, as the case may be, monthly and in advance.
If the CLIENT is a self-employed worker, payments must be made before the 15th day of the month following the month in which such charges were made, by direct debit to the CLIENT’s bank account designated for such purpose.
If the CLIENT is a company, payments must be made within a maximum period of thirty (30) days from the date on which GIGAS issues the invoice, by means of direct debit to the CLIENT’s bank account designated for such purpose.
GIGAS shall send or make available to the CLIENT an invoice for the amount due for the Service according to the terms agreed in the Offer and/or in Appendix 2. Moreover, if part of the Service, the CLIENT will be entitled to obtain a specific breakdown of the any supplementary services subscribed to in addition to the fixed telephone service and the Internet access service. The CLIENT may also request that GIGAS send to the CLIENT separate invoices for premium rate services, in which event GIGAS shall state on the invoice as separate items the fixed telephone service and the premium rate service, identifying the relevant service provider or, if not known to GIGAS, identifying the relevant network operator.
Notwithstanding the foregoing, when the total charges invoiced by GIGAS to the CLIENT do not reach the amount of fifteen euros and three euro cents (€15.03), taxes not included, GIGAS may roll over the amount to the invoice of the following month until the total of the invoiced charges reaches such limit, and so on successively.
The invoice must show a breakdown of the charges for use of the Service, which will be composed of the charges incurred by the CLIENT, including, if applicable, registration fees, monthly fees for the following billing period and usage charges for the ended period, in accordance with the prices in effect at that time, and, if applicable, any discounts and promotions applicable to the CLIENT.
If the CLIENT is late in full or partial payment of the amounts of any invoice, such amounts will be deemed overdue debt. GIGAS may therefore take such actions for non-payment as it deems fit and charge interest for late payment at a rate equivalent to the statutory interest rate increased by two (2) percentage points. If the Service subscriber and the party responsible for payment are not the same, GIGAS may proceed interchangeably against either to recover the total or partial non-payment of an invoice.
6. Credit limit and collateral
GIGAS may set a credit limit for the CLIENT when, on reasonable grounds and at GIGAS' sole discretion, GIGAS deems it appropriate, and may invoice, and demand collection of, any amount that exceeds such limit without having to wait for the end of the billing period set forth in this Agreement.
GIGAS may request the posting of collateral in accordance with the laws and regulations in force at any time in the following events:
i) If the CLIENT leaves one or more bills for the Service unpaid or if there is a repeated delay in payment.
ii) If the CLIENT incurs debt for other service contracts with GIGAS, whether in force or not at the time of subscribing to the Service. For these purposes, a delay in payment is deemed to occur if payment is made after the voluntary payment period has expired, and a delay is repeated if it occurs more than once within a period of one year. The amount will be determined as the sum of the last three bills invoiced to the CLIENT or, if the Agreement is less than three years old, the amount resulting from multiplying the last bill by three. The posted collateral must be refunded as soon as GIGAS is aware of full payment of the amounts due or, as the case may be, when GIGAS ascertains an absence of delays in payment for a period of one year.
iii) For a subscription contract where the subscriber provides premium rate services.
iv) If, as an exception, such measure is authorised by the competent government body at the request of GIGAS in events of ascertained fraud to ensure compliance with the contract by end users.
v) Any event designated by the competent government body.
GIGAS shall grant the CLIENT a term of fifteen (15) calendar days to post the collateral. Once this term has elapsed, if any non-payment or delay in payment occurs, GIGAS may suspend the Service. Moreover, GIGAS may terminate the CLIENT’s subscription and the Service, with no right accruing to any compensation from GIGAS, if, after a further period of ten (10) days after a second request, the collateral is not posted.
The collateral will not bear interest and must be refunded when the grounds giving rise to it no longer apply. The posted collateral is exempt from IVA (value-added tax: IGIC in the Canary Islands and IPSI in Ceuta and Melilla).
7. Suspension of the Service
Any delay in full or partial payment by the CLIENT for a period of more than one month from the presentation of the relevant invoice for collection will entitle GIGAS to temporarily suspend the Service, with prior notice to the CLIENT five (5) business days in advance. GIGAS may demand from the CLIENT the late payment interest stipulated in Clause 5 above.
GIGAS reserves the right to make the continuity of the provision of the Service subject to the CLIENT's prior compliance with the terms of Clause 5 in relation to the CLIENT’s payment obligations for the Service.
For suspension of the Service as a consequence of non-payment by the CLIENT, GIGAS shall notify such suspension to the CLIENT at least five (5) days prior to the date on which such suspension is to take place. Non-payment for the main Service will entail suspension of all supplementary services subscribed to under the Agreement. The CLIENT shall refrain from any action that implies a use of the Service or of any related service provided by GIGAS that is not contemplated under the Agreement. GIGAS may immediately suspend the Service without notice in the event of breach by the CLIENT of this obligation. The CLIENT will be liable for any fraudulent activity carried out on the Service that causes or may cause damage or detriment to GIGAS or third parties.
If, in GIGAS' sole judgement, a negligent or fraudulent act or omission of the CLIENT or, in general, an improper or disallowed use of the Service affects or may affect the correct operation or security of the Service or the network, equipment or infrastructure through which GIGAS provides the Service, GIGAS reserves the right to suspend or discontinue the Service immediately, temporarily or finally, with no right accruing to the CLIENT to receive any kind of indemnity or compensation and without prejudice to GIGAS' right to take any action it may be entitled to in defence of its interests.
A service that is suspended by reason of breach by the CLIENT of any obligation under this Agreement may be reactivated after payment to GIGAS of all amounts owed by the CLIENT. Furthermore, GIGAS may, at its sole discretion, demand from the CLIENT the payment of seven hundred and fifty United States dollars (USD 750) or five hundred euros (€500) by way of a fee for such reactivation.
8. Complaints- Client Service Department
If the CLIENT has a complaint about the provision of the Service, the CLIENT should approach the Client Service Department by writing to the registered office of GIGAS at Avenida de Fuencarral, 44 Edificio Gigas, Planta 1, 28108 Alcobendas, Madrid, Spain, by telephone at 900247000, or by e-mail to the address info@gigas.com, within one month from the date of awareness of the event giving rise to the complaint.
GIGAS shall communicate to the CLIENT the reference number assigned to the claim or complaint raised or incident reported by the CLIENT. The CLIENT may request supporting evidence of the presentation and content of the CLIENT’s complaint.
The making of a complaint by the CLIENT does not have the effect of suspending payment of bills issued by GIGAS within the contractually agreed time limits.
9. Initial Service connection, compensation for Service downtime and Service quality
The estimated time limit for the Service becoming available will be as indicated in the Offer, provided that a force majeure event does not occur that prevents the operation or installation of the Service and provided that the CLIENT has provided all the necessary technical and operational information and, likewise, has allowed performance of the joint operation tests. If the CLIENT does not communicate to GIGAS any dispute or complaint within a period of five (5) calendar days from the Service Activation Date, the CLIENT will be deemed to have silently accepted and fully agreed with the installation, implementation or any other work done for the start-up and provision of the Service.
GIGAS will not be responsible for Service downtime if caused by: (i) breach of the Agreement by the CLIENT and, in particular but not exclusively, of these GENERAL TERMS AND CONDITIONS and/or in Appendix 2, in particular in event of fraud or default in payment, which will give rise to the application of the provisions for the temporary suspension or discontinuation of the Service; (ii) damage caused to the network through which the Service is provided due to connection by the CLIENT of terminals the compatibility of which has not been assessed in accordance with the laws and regulations in force or not approved by GIGAS; (iii) government or court order; (iv) power outage; (v) misuse by the CLIENT of the Equipment leased by GIGAS; or (vi) network maintenance operations.
For the above purposes, the duration of Service downtime will be calculated either from the moment the failure notice is received, or from the moment GIGAS logs the incident causing the total or partial Service downtime, to the moment when the Service is restored.
10. Repairs and maintenance
The CLIENT shall notify GIGAS using the Client Service telephone number, immediately upon becoming aware, of any faults detected in the Service.
Repair costs must be borne by GIGAS, provided that the fault is not attributable to the CLIENT due to negligent use or maintenance or malicious or negligent actions on the network over which the Service is provided or on its equipment or, in general, due to improper use of the Service.
11. Limitation of liability
GIGAS will be liable to the CLIENT for the proper performance of its obligations under the Agreement within the limits stipulated in these GENERAL TERMS AND CONDITIONS and in the applicable laws and regulations. GIGAS will be exempt from liability in any of the following circumstances: a) the defects observed in the performance of the Agreement are attributable to the CLIENT; b) such defects are attributable to a third party not involved in the supply of the services under the Agreement and are unforeseeable or insurmountable; c) the defects are due to force majeure, defined as abnormal and unforeseeable circumstances beyond the control of the party invoking them, the consequences of which could not have been avoided, despite such party having acted with due diligence; d) the defects are due to an event that GIGAS, in spite of having acted diligently, could not foresee, avoid or overcome. Compensation for damages resulting from non-performance or poor performance of the services under in this Agreement will be limited to the total price of the Service subscribed to.
12. Secrecy of communications
GIGAS shall adopt the measures prescribed by the laws and regulations in force to assure the secrecy of communications throughout its network. GIGAS is exempt from liability if such communications were revealed to third parties for reasons not directly attributable to GIGAS.
13. Termination of the Agreement
The Agreement or, as the case may be, a specific Offer, will be terminated, with the consequent final discontinuation of the Service, for the general reasons admitted in law and especially, but not limited to, for the following reasons:
i) Non-payment or delay in payment for the Service for a period of more than three months or if the CLIENT has not cured such breach within ten (10) days from receipt of a written demand by GIGAS. GIGAS may demand, in addition to the unpaid amounts and interest, the amounts that would have accrued up to the originally intended date of expiry of the Agreement or of any of its extensions, and may recover any damages caused.
ii) Temporary suspension on two occasions of the Service due to default in payment for the services.
iii) The following are also grounds of termination of this Agreement:
a. Discontinuation for any reason of one of the parties’ business or main line of activity or substantial alteration of the nature of its business, or dissolution, liquidation or closure of a party or transfer of the entirety of its assets.
b. Termination of the Agreement by either of the parties as a result of a serious or repeated breach by a party (other than payment of amounts due under this Agreement) of any of its Clauses, provided that such breach is not cured, if curable, within a period of twenty (20) days following a written demand for such cure from the other party.
Termination of the Agreement will not exempt the CLIENT from its obligations to pay any amounts accrued up to the time of the termination of the Agreement for the Service rendered until the date indicated for the effective termination.
Upon termination of this Agreement for any of the reasons set forth in this Clause, the CLIENT shall immediately return, at its own expense, GIGAS' Equipment. However, GIGAS may retain the CLIENT's equipment by way of a pledge until the CLIENT has paid all amounts due, for which purpose the CLIENT expressly authorises GIGAS to do so.
If the CLIENT fails to honour the lock-in commitment agreed in the Offer or in Appendix 2, as the case may be, either by reason of early termination of the Agreement or by partial cancellation of the committed Services, the CLIENT shall pay GIGAS the sum of the monthly payments of each Service that would have accrued up until the end of the agreed lock-in period, either in relation to all the Services or to those subject to partial cancellation. Independently of the above, early termination of the Agreement or partial cancellation of Services without just cause at the unilateral discretion of the CLIENT will not entail the refund of any amount by GIGAS.
In addition to the provisions of the previous paragraph, if the CLIENT terminates the Agreement without just cause before the activation of the Services, the CLIENT shall pay to GIGAS, as an indemnification, any expense incurred by GIGAS until the date on which the CLIENT reliably communicates to GIGAS its intention to terminate the Agreement.
14. Modification of terms and conditions
GIGAS may modify this Agreement for the following reasons: (i) changes in the technical characteristics of the equipment or networks, (ii) technological changes affecting the Service, (iii) changes in the economic conditions existing at the time of subscription to the Service, (iv) market changes and/or (v) any other circumstance that GIGAS considers appropriate. GIGAS shall notify the CLIENT one (1) month prior to the date on which the modification is to become effective. In such events, the CLIENT may terminate the Agreement without penalty, while any other commitments made by the CLIENT will remain intact.
15. Data protection
Identity of the controller of personal data: GIGAS HOSTING, S.A. (“GIGAS”), Avenida de Fuencarral 44, Edificio GIGAS, Planta 1, 28108, Alcobendas, Madrid, Spain, holder of taxpayer identification number (NIF) A-82581638 and registered with the Companies Registry of Madrid at Volume 25,925, Folio 136, Section 8, Page M-253723.
If the CLIENT is a corporation, GIGAS shall process such data of its representative as is strictly necessary for the maintenance, performance and monitoring of the Services rendered under the Agreement. The lawful basis for such processing is the fulfilment of the contractual relationship. The CLIENT's representative’s data will be retained for as long as such relationship remains in effect and, once it is terminated, until any liabilities arising from it expire. The data of the signatory of the Agreement may be communicated to government bodies in the events provided for by law, and to the Spanish police forces and the Spanish National Intelligence Centre by virtue of Ley 25/2007 de 18 de octubre, on the retention of data relating to electronic communications and public communications networks. The signatory of the Agreement may request access to his/her personal data, and rectification, erasure or portability of the data, and may request the restriction of the processing or object to it, by writing, with an enclosed photocopy of his/her ID card or valid identity document, to the following address: GIGAS, Client Service Department, Avenida de Fuencarral 44, Edificio GIGAS, Planta 1, 28108 Alcobendas. The envelope should bear the legend “Data Protection”. Alternatively, the data subject may contact the Data Protection Officer at GIGAS HOSTING, S.A., by writing to the e-mail address dpo.gigas@gigas.com or calling the telephone number 902877192.
If the CLIENT is an individual, the terms and conditions set forth in GIGAS' Data Protection Policy apply. The Policy is available at: https://gigas.com/legal-acuerdos-proteccion-datos.html
If as a result of the provision of the Service under this Agreement GIGAS must act as processor with respect to personal data for which the CLIENT is the controller, the parties expressly agree to submit to the terms conditions of the data processing engagement, which, in compliance with applicable regulations, is set out in Appendix 5 to this Agreement.
16. Firewall:
If in the context of the Services GIGAS provides the CLIENT with a free basic firewall, it will be the responsibility of the CLIENT to configure basic firewall functionalities on its Cloud Servers so as to manage access to the Service from different locations. Configuration of the firewall is fully customisable by the CLIENT, so GIGAS is not responsible for the proper operation of the firewall.
If the Service includes a Fortinet Advanced Firewall, the CLIENT states that it is aware that the licences for the firewall are annual, so the subscription has a minimum duration of one (1) year, with successive annual renewals, until cancelled. The renewal costs of this service may vary. GIGAS shall notify the CLIENT of such changes in advance, and the CLIENT may choose not to renew the specific service without penalty. If such service is cancelled for any reason before the end of the subscription period in effect, the CLIENT will be bound to pay the remaining monthly fees to GIGAS until the end of the unelapsed subscription period.
17. Other responsibilities of the CLIENT:
GIGAS is expressly exempted from any liability that might arise from the content hosted or transmitted by the CLIENT and/or by third parties using the Service. The CLIENT shall fully assume all civil, criminal or any other manner of liability that may arise in relation to such content and/or, in general, from the use of GIGAS' Service. GIGAS reserves the right to suspend or finally cancel the Service if it detects any activity contrary to the law, morality or public order in relation to such content and/or the use of the Service. GIGAS will give notice to the relevant authorities and make available the CLIENT's data as requested by the judicial or government authority, with no right to compensation accruing to the CLIENT.
The CLIENT is solely and exclusively responsible for the safe custody of passwords created to access its administration area of the Service to prevent access by any unauthorised third party.
The CLIENT must have original software licences as necessary for the provision of the Service by GIGAS. GIGAS may at any time request that the CLIENT prove its ownership of such licences. GIGAS is not responsible for the consequences that breach of this obligation by the CLIENT could create facing third parties. In this regard, the CLIENT shall take into account that, although not all software requires a licence, it is possible that the software that the CLIENT wishes to install using the Service does require an original licence. The CLIENT assumes responsibility for having its software properly licensed in accordance with the requirements of each supplier and for complying with the respective agreements and/or conditions of use. The CLIENT shall defend and hold GIGAS harmless against any claim, complaint, fine, sanction and/or third party action arising from the CLIENT's breach of its obligations under this Clause.
18. Intellectual property
Each of the parties acknowledges the other party’s ownership or the relevant third party’s ownership with respect to all its intellectual and industrial property rights and other analogous rights in and over elements, technology, know-how, trademarks, logos and any other proprietary element, creation, invention or distinctive sign.
The CLIENT, by virtue of the specific terms and conditions of the subscribed products, will not acquire absolutely any right or licence regarding the subscribed product or service, nor in or over the technical information for monitoring the service, except the rights and licences necessary for compliance with such contractual conditions and only during the term of effect of the conditions.
The CLIENT shall respect the third party software made available by GIGAS, even if free of charge, and shall refrain from any use or access not expressly authorised by GIGAS.
In relation to software licences and other intellectual/industrial property rights that the CLIENT may need to acquire through GIGAS, the CLIENT acknowledges the ownership of the respective manufacturers and/or suppliers over all intellectual property rights that they may hold over the same and undertakes to observe the terms of such licences and to be responsible for the peaceful use of those elements.
The CLIENT shall cooperate with GIGAS if the latter is required by the licensor of the software licences used in the services engaged from GIGAS to prove authorised use of such licences. The CLIENT shall immediately provide GIGAS, or an auditor designated by GIGAS or by the licensor, with all the information requested in order to verify the use of such licences, and shall provide access to all the servers running the software products that the CLIENT hosts, sub-licenses, distributes or manages on behalf of third parties.
If it were found that unlicensed use of software was made, the CLIENT shall pay to GIGAS or to the licensor, as applicable, 125% of the then current price for each unpaid licence. Such undisclosed use will be deemed to have started at the beginning of the relationship between GIGAS and the CLIENT, unless the CLIENT can prove a different scope of use and duration.
For Microsoft software licences, the CLIENT undertakes expressly to accept and abide by the terms and conditions of the Microsoft End User License Agreement (EULA) in its English-language original. The CLIENT accordingly accepts the version in effect at the time of subscription to or renewal of the services, as the case may be, which is available at https://gigas.com/legal-terminos-microsoft.html, including the English-language original and a courtesy translation into Spanish. In the event of any dispute as to the interpretation of the agreement, the original English-language version prevails. Absence or unavailability of the translation referred to above does not prevent the CLIENT's acceptance of being bound by such licence agreement on the terms set out here.
19. Special obligation concerning the prevention of money laundering and terrorist financing
The CLIENT expressly states that: (a) the funds used in the transactions under this Agreement are not the proceeds of nor are to be used to engage in any unlawful activity; (b) it complies with the general and particular rules on control and prevention of money laundering; (c) it has adopted measures, codes of conduct and other requirements for the prevention of money laundering and terrorist financing; (d) in the course of the activity under this Agreement, the CLIENT shall use all efforts to strictly comply with all the rules of precaution and prevention of money laundering and terrorist financing; (e) the CLIENT shall maintain documentary records of all the rules, procedures and manuals that it creates internally for the prevention and control of money laundering to perform the above obligations.
The Parties acknowledge that this Agreement is entered into in reliance on the above statements and, if either of the Parties becomes aware by any means that any such statement has ceased to be valid with respect to the other Party, or if a Party refuses to provide a statement of similar import regarding new courses of conduct codified as unlawful, then the interested Party will be deemed to be entitled to immediately and unilaterally terminate this Agreement for just cause, and no indemnification will be payable.
20. Applicable law and jurisdiction
These GENERAL TERMS AND CONDITIONS will be governed by and construed in accordance with Spanish law.
The parties agree that any litigation, dispute, issue or claim as to the existence, validity, performance or interpretation of this Agreement will be subject to the jurisdiction of the courts of the city of Madrid, expressly waiving any other jurisdiction to which they may be entitled.
21. Transfer of the Agreement
The CLIENT may only transfer the Agreement with the prior, express written consent of GIGAS. GIGAS may transfer this Agreement to any company of the group to which it belongs. For this purpose, prior notice to the CLIENT will suffice. This will not entitle the CLIENT to early termination.
For the purposes of this Clause, provision of the Service by GIGAS using networks, infrastructure, technologies or services of third parties will not be deemed a transfer of the Agreement to such third parties.
In accordance with Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and the free movement of such data (“GDPR”), and Ley Orgánica 3/2018, de 5 de diciembre (the “Spanish Data Protection Act”), and Ley 1/2019 on business secrets, if as a consequence of provision of the Service GIGAS (for the purposes of this Appendix 5, the "Processor") must access personal data under the responsibility of the CLIENT (for the purposes of this Appendix 5, the "Controller"), the parties agree to enter into this DATA PROCESSING AGREEMENT, under and subject to the following terms and conditions:
| Organisational security measures | |
|---|---|
| Security management | Security policy and procedures: the Processor shall document a security policy regarding the processing of personal data. |
| Functions and responsibilities: | The Processor shall have in place an organisational structure of assigned roles and tasks regarding information security, setting out positions and functions in each role. The functions and duties relating to personal data processing must be clearly defined and assigned in accordance with the security policy. In the event of internal reorganisations or layoffs or changes of job position, the revocation of rights and duties must be clearly specified and transfer procedures must be implemented accordingly. |
| Access control | Specific access control rights are assigned to each role involved in personal data processing on a "need to know" basis. |
| Resource/asset management | The Processor shall keep records of the IT (hardware, software and network) resources used for personal data processing. The maintenance and updating of such records will be assigned to a specific person (e.g., the head of IT). |
| Change tracking in IT | All changes to the IT system must be subject to tight control, especially regarding the following:
After a change is made, an audit-ready record must be kept, containing all relevant information. |
| Change tracking in apps | The introduction of new systems or of major changes to existing systems must follow a formal procedure of documentation, specification, testing, quality control and managed implementation, embracing:
|
| Personal data security incident/breach management: | There must be specified an incident response plan comprising detailed procedures to ensure an effective and orderly response to personal data incidents. The Processor shall without undue delay notify the Controller of any security incident resulting in the loss, misuse or unauthorised acquisition of personal data. The main procedures and controls must be established to ensure the required standard of continuity and availability of the IT system on which the personal data are processed (in the event of a personal data security incident or breach). |
| Employee confidentiality | The Processor shall ensure that all employees understand their duties relating to personal data processing. Such duties must be clearly communicated in the course of recruitment. |
| Employee training | The Processor warrants that all employees will be suitably informed about the security safeguards of the IT system relating to their day-to-day work. Employees involved in personal data processing must also be properly informed about the protection requirements and legal duties surrounding relevant data by means of regular awareness-raising campaigns. |
| Technical security measures | |
|---|---|
| Access control and authentication | An access control system must be implemented that applies to all users gaining access to the IT system. The system must allow for creating, approving, reviewing and deleting user accounts.
Common user accounts are to be avoided. However, if a common user account is necessary, it must be ensured that all users of such account have the same functions and duties. When granting access or assigning user functions, the "need to know" principle must be followed to limit the number of users having access to personal data to only those users who request such access to achieve the purposes of processing by the Processor. If authentication mechanisms are password-based, the Processor shall require that a password contain at least eight characters and be compliant with very strong password control parameters, such as length, character complexity and non-repeatability. Passwords must be changed regularly and at least every six months. A password must be changed whenever there is any sign that its confidentiality might have been compromised. Authentication credentials (such as a user login and password) must never be transmitted over a network unprotected. |
| Registration and monitoring | Registration files are activated for each system/application used for personal data processing. All manner of access to data (read-only, editable, deletion) are included. |
| Server/database security | The database and application servers are configured to execute using a separate account with the minimum operating system privileges for correct functioning. Database and application servers process only those personal data that are strictly needed to achieve the purposes of processing |
| Workstation security | Users may not disable or omit security settings. All computers and devices are equipped with enabled antivirus and firewall systems that are regularly configured. Users do not have privileges that would enable them to install or disable software in any unauthorised way. The system imposes session waiting times when a user has been idle for a certain period. Critical security updates released by the operating system developer are installed regularly. |
| Network and communications security | When access is implemented over the Internet, such communication must be encrypted using a cryptographic protocol. Traffic to and from the IT system must be monitored and regulated by firewalls and intrusion detection systems. |
| Backup copies | Data retrieval and restoration procedures must be specified, documented and clearly tied to functions and duties. Backup copies must be made at least weekly on a second medium that is separate from the media used for useful purposes. Backup copies must attract an appropriate level of physical and environmental protection that is consistent with the standards applied to the source data. The execution of backup copies must be supervised to ensure that it is complete. |
| Mobile/portable devices | The procedures for managing portable and mobile devices must be specified and documented and must set clear rules for suitable use of such equipment. Mobile devices that are authorised to access the information system must be pre-registered and pre-authorised. |
| Application life-cycle security | Throughout the development life cycle, best practices, the state of the art and generally accepted secure development practices and standards must be followed. |
| Temporary files | Temporary files may be created only when needed for temporary or ancillary tasks. After completion of the task giving rise to the creation of a temporary file, such file must be destroyed. |
| Data erasure and deletion | Before a data medium is eliminated, it must undergo software-based overwriting. If this were not possible (CDs, DVDs, etc), physical destruction must be carried out. Paper and portable media used for storing personal data must be shredded. |
| Physical security | Unauthorised personnel must not be able to access the physical perimeter of the IT system infrastructure. Appropriate technical measures must be established (e.g., intrusion detection system, swipe-card operated turnstile, one-person security entry system, closure system) or organisational measures (e.g., security guards) to protect secure areas and their entry points against unauthorised persons. |
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