GENERAL TERMS AND CONDITIONS OF THE
LICENCE TO USE SOFTWARE
1. Purpose
1.1. SMC hereby grants the Customer, who accepts, a licence to use the Software ("Licence"). The Licence grants a right to use the Software, which solely includes the right of use and access.
1.2. For all pertinent purposes, SMC represents and guarantees that it has full capacity to grant the rights recognised herein in favour of the Customer.
1.3. The Customer shall not be entitled to sublicense the Licence, or to grant the right to distribute, resell or modify the Software.
1.4. Likewise, by virtue of the General Terms and Conditions of Use, SMC undertakes to provide the Customer with the services indicated in the User Manual, all for the price and under the conditions indicated. All the transactions between the Parties that fall within the scope of the following General Terms and Conditions of Use shall be strictly governed by the provisions of the following General Terms and Conditions of Use, without applying the Customer's General Terms and Conditions or any other provisions (if there are any).
1.5. The Customer is aware of, and satisfied with, the current software functionality. Nevertheless, any proposal by the Customer shall be considered by SMC. SMC does not, in any way, undertake to implement the proposals received, and retains the right to decide what to do with each proposal.
2. Term
2.1. These General Terms and Conditions of Use shall be effective as from the date of the installation and activation of the licence, and shall have the term associated with the corresponding product reference or purchasing order.
3. Economic terms and conditions
3.1. Price
For the granting of the Licence to use the Software, the Customer shall pay SMC the amount agreed upon acceptance of the order. ("Price").
3.2. Billing
Billing shall be done upon delivery of the licence, in accordance with the terms and conditions agreed between "SMC" and the Customer.
3.3. Payment terms
Invoices shall be paid by the Customer in accordance with the agreement between "SMC" and the Customer.
4. Customer obligations
Without prejudice to any legal and/or contractual obligations that may be stipulated, the Customer shall assume the following obligations:
4.1. The Customer undertakes to pay the agreed Price under the terms and conditions set out in these General Terms and Conditions of Use and as agreed upon acceptance of the order.
4.2. The Customer agrees to use the Software with due diligence in accordance with industry practice.
4.3. The Customer may lodge a claim for a refund up to 30 days after the installation and/or activation of the licence. After this period, no claim for a refund shall be accepted.
4.4. The Customer undertakes to provide the information required for the proper use of the licence.
4.5. The customer undertakes not to decompile, disassemble or reverse engineer the software. In any of these cases, the Customer loses all rights to receive any support from SMC.
5. SMC's obligations
SMC shall assume the following obligations:
5.1. They shall provide the Customer with the Services set out in the User Manual with due care and diligence and in accordance with best practice to ensure that they are provided to the highest quality standards.
5.2. They shall provide the Customer's staff with all the information required for the correct use of the Software.
5.3. SMC shall organise and control the provision of Services, in compliance with their criteria and ensuring, in any case, the correct provision of the Services and full compliance with the obligations assumed by SMC under the General Terms and Conditions of Use, without prejudice to the possibility of adapting it to the Customer's needs should this be necessary during the term of the General Terms and Conditions of Use.
5.4. SMC undertakes to make every endeavour to maintain an acceptable level of compliance with their contractual obligations, without prejudice to the fact that SMC cannot guarantee, explicitly or implicitly, the continuity of the services at any given time due to technological developments. In the event of non-compliance with the Service Level Agreements (SLAs), for reasons exclusively attributable to SMC, the Customer shall be entitled to be compensated.
Such compensation shall be in lieu of any other damages for any malfunction, interruption, failures or breakdowns of the services to which the Customer may be entitled and shall fully discharge any suffered sustained by the Customer.
6. Intellectual property rights
6.1. For the purposes of these Terms and Conditions of Use, Intellectual Property Rights shall refer to: (i) any and all discoveries, inventions, concepts, and ideas, whether patentable or not, including, but without limitation, technological innovations, industrial processes and methods, product concepts, prototypes, versions and computer programs, as well as improvements to any of the foregoing or know-how related thereto; and (ii) all works of authorship fixed in a tangible medium of expression, including, but without limitation, computer programs, computer source and object codes, content, derivatives or modifications, notes, drawings, memoranda, correspondence, documents, records, notebooks, reports, drawings, prototypes, representations and models, including, but without limitation, any products provided by SMC to the Customer.
6.2. The Intellectual Property Rights granted under the Licence shall in no case be the Customer's property.
7. Data protection
7.1. For the purposes of the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing personal data and on the free movement of such data, and of Organic Law 3/2018 of 5 December on the Protection of Personal Data and the guarantee of digital rights, SMC (whose details are included in these General Terms and Conditions of Use) informs the Customer that their personal data collected, or to be collected, under the General Terms and Conditions of Use, shall be processed for the purpose of managing the development, maintenance, fulfilment and control of their relationship with SMC, for the duration thereof, and even after the termination thereof during the legally established periods arising from the limitation of the legal proceedings related to such processing.
7.2. Likewise, for the aforementioned purpose, your personal data may be disclosed to any of the entities that form a group of companies with SMC under the terms provided for in the legislation in force, even if this involves the international transfer of the data to the aforementioned group companies, always in compliance with the purposes for which your data were collected, as well as to the public bodies which, where appropriate, are legally obliged to do so.
7.3. The legal basis for processing the Customer's personal data is legitimate interest in the execution and fulfilment of the provisions of these General Terms and Conditions of Use to which the Customer is a party.
7.4. In the event that the Customer's personal data are disclosed internationally to a third country that does not guarantee an adequate protection level, standard data protection clauses adopted or approved by the Commission shall be concluded with the recipient.
7.5. The Customer may, at any time, exercise their rights of access, rectification, erasure, restriction of processing, portability and objection by writing to the Company at SMC's registered office. In addition, they may also approach the competent authority to claim their rights.
7.6. Due to entering into these General Terms and Conditions of Use, SMC shall not access data that are the Customer's responsibility. However, in the event that SMC finally gains access to data which is the Customer's responsibility, the Parties shall enter into a processing agreement pursuant to the applicable law.
8. Liability
8.1. The Parties undertake to comply with the provisions of these General Conditions of Use, as well as with all applicable legislation and regulations, each of them being liable vis-à-vis the other for any violations and non-compliance they may incur.
8.2. Each Party shall indemnify the other for damages to the other Party or to third parties for any cause attributable to that Party.
8.3. Neither Party shall be liable to the other for consequential damages or lost profits.
8.4. SMC shall, under no circumstances, be liable for more than the amount received as consideration for the Licence.
9. Termination
9.1. Without prejudice to any other rights or remedies to which the Parties may be entitled pursuant to applicable law, either Party may terminate the right of use without liability to the other under any of the following circumstances:
- At any time, by mutual written agreement between the Parties.
- Upon termination of the legal personality or the cessation of the activity of a Party; and
- By written complaint by either Party based on a serious breach of any of the obligations assumed by the other Party under these General Terms and Conditions of Use, without prejudice to the right of the injured Party to opt for the continuation of the General Terms and Conditions of Use, and to demand from the other Party full compliance with their obligations, with reparation, in either case, for the damage caused by such breach. In such an event, the defaulting Party shall have fifteen (15) calendar days to remedy the situation. If, after this period has elapsed, in the opinion of the Party concerned, the defaulting Party has not ceased their conduct or remedied the cause of their breach, the Party affected may terminate these General Conditions of Use with immediate effect, and the Party affected may exercise any of the legally established proceedings.
10. Statements and guarantees
10.1. SMC states and guarantees:
- That the Software complies with the quality standards required for its correct use and operation, being suitable for the purpose for which these General Terms and Conditions of Use have been entered into.
- That they have all the rights to grant this Licence for the Software, as well as to provide the Services and, by granting this Licence, they guarantee that third-party intellectual or industrial property rights shall not be violated.
11. Confidentiality
11.1. Throughout the term of the General Terms and Conditions of Use, the Parties undertake to maintain the strictest confidentiality regarding them and the terms thereof, refraining from disclosing them to third parties, with the exception of:
- Compliance with a legal obligation or an administrative or court order.
- Enforcing or permitting the fulfilment of rights and obligations arising from these General Terms and Conditions of Use, or for the information of their advisors or auditors, provided that both undertake to keep it confidential by express agreement or in accordance with their professional standards.
- By mutual agreement of the Parties.
12. Relationship between the Parties
12.1. The Parties shall perform the activity that is the object of these General Terms and Conditions of Use as independent professionals and completely autonomously, enjoying full freedom to determine the form and way of organising their work.
12.2. Nothing in these General Terms and Conditions of Use shall be construed to mean that the Parties are, in relation to the other Party, a representative, partner or agent; or to mean that the Parties' employees have some kind of employment or any other relationship of dependence or subordination to the other Party.
13. Assignment and subcontracting
13.1. Both Parties agree that the rights reciprocally conferred by virtue of these General Terms and Conditions of Use are personal, indivisible and non-transferable and, therefore, neither Party may assign or transfer, in favour of third parties, their contractual position arising from these General Terms and Conditions of Use without the prior, express and written consent of the other Party.
14. Miscellaneous
14.1. Single agreement
The General Terms and Conditions of Use supersede all other contracts or agreements, written or verbal, concluded between the Parties as of the effective date of these General Terms and Conditions of Use.
14.2. Amendments
Any amendment of the General Terms and Conditions of Use which is not in writing and which is not entered into by the Parties, in a way identical to that of the General Terms and Conditions of Use, shall be invalid and ineffective.
14.3. Independent nature of the clauses
14.3.1. The possible declaration, by a judicial or administrative body, of the illegality, nullity, invalidity or unenforceability of one or more clauses of the General Terms and Conditions of Use, or part thereof, shall not entail the illegality, nullity, invalidity or unenforceability of the other clauses, or of the remaining parts thereof, which shall remain fully valid to the extent applicable, provided that the clauses or part thereof declared illegal, null, invalid or unenforceable are not essential.
14.3.2. Clauses, or parts thereof, declared illegal, void, invalid or unenforceable shall be deemed deleted from the General Terms and Conditions of Use, or not applicable in such circumstances, as the case may be, and the Parties shall negotiate their replacement in good faith and adopting measures that best serve the purpose intended by the General Terms and Conditions of Use.
14.4. No waiver
14.4.1. The waiver by either Party to enforce any of the obligations under the General Terms and Conditions of Use, or to exercise any of their rights or remedies under the General Terms and Conditions of Use:
- shall not release the other Party from the full performance of the remaining obligations contained in the General Terms and Conditions of Use; and
- shall not be construed as a waiver of any future enforcement of any obligation or exercising of any rights or remedies under the General Terms and Conditions.
14.4.2. The exemption, postponement or waiver of any of the rights provided for in the General Terms and Conditions of Use, or any part thereof:
- shall only be binding if in writing;
- may be subject to such conditions as the grantor of such an exemption, postponement or waiver may deem appropriate;
- shall be limited to the specific case in which it occurred; and
- shall not affect the enforceability, under other circumstances, of the right to which it relates or the enforceability of any other right existing in relation to the Parties.
14.5. Notifications between the Parties
14.5.1. Requirements
Notifications, authorisations, consents and other communications relating to the General Terms and Conditions of Use:
- must be made in writing;
- shall be delivered by hand, in return for a receipt, or sent by any other means to provide reliable evidence of the content and date of dispatch;
- shall be sent to the addressees at the addresses indicated above or, if the addressee indicates any other address, shall be sent to that address; any change in the addresses indicated shall be notified in advance to the other Party through the system established in this Clause.
14.5.2. Notification date
Notifications shall be deemed to have been made on the date on which they are sent.
14.5.3. Addressees and delivery addresses
Notifications shall be delivered to the persons and at the addresses given below:
SMC España, S.A.U.
SMC España, S.A.U.
For the attention of: SMC International Training
Address: calle Zuazobidea 14, Vitoria-Gasteiz (Araba/Álava)
Email: training@smctraining.com
Telephone: +34 945184100
The Customer
The Customer's address shall be deemed to be the address shown in SMC's records for billing purposes.
Integrity of payments
All payments provided for in the General Terms and Conditions of Use shall be made in full and shall not be reduced by offsetting balances or counterclaims.
15. Applicable law
15.1. The General Terms and Conditions of Use shall be governed by and construed in accordance with Spanish common law.
15.2. The Parties, expressly waiving any other law that may legally correspond to them, expressly submit to the jurisdiction of the courts and tribunals of Vitoria-Gasteiz (Araba/Álava), the resolution of any controversy or claim that may arise with respect to the interpretation or execution of the General Terms and Conditions of Use, including those referring to non-contractual obligations that arise from or are related to the same.
All the clauses of these General Terms and Conditions of Use shall be effective as of 1 April 2023.