WEBINARS, CONFERENCES, DIGITAL CREATION AND ASSOCIATED SERVICES

TERMS & CONDITIONS FOR THE PROVISION OF WEBINAR, CONFERENCES, DIGITAL CREATION AND ASSOCIATED SERVICES

EVERYDAY SOFTWARE, S.L., a Spanish company with registered office at Carrer d'Àlaba, 61, 5-2, 08005 Barcelona, Spain, and NIF B-66854530, registered in the Mercantile Registry of Barcelona, in Volume 45613, Folio 156, Page 493653, Inscription 1ª (hereinafter, "Factorial HR" or "Factorial" OR the “Client”) or any of its affiliates, has developed an application to automate the processes of Human Resources in companies. Factorial is the exclusive owner and holds all rights, title and interest in and to a human resources and enterprise management software, which Client commercializes under the tradename "Factorial" through an on-line platform and a website (the "Software" and the "Business", respectively").

These Terms and Conditions are applicable between Factorial and You, as “Digital Content Creator” or “Speaker”, who has expertise and experience in create promotional content and participate in Company's promotional campaigns, including but not limited, to serve as an Digital Content Creator at physical or online events, and actively participate in social media to advertise businesses on various social applications.

These Terms and Conditions regulate the commercial contractual relationship between Factorial, as Client, and the Digital Content Creator or Speaker, as independent contractor and supplier of Digital Content Creator promotional services subject to and in accordance with the Terms and Conditions agreed herein and in the Order Form - Statement of Work. When referring to "Agreement" it refers to the Terms and Conditions together with the Order Form/Statement of Work, considered as one single document.

 The Client and the Digital Content Creator shall be collectively referred to as the "Parties" and, individually, each as "Party".

1. SERVICIES

1.1 Agreement & Statements of Work. Under the terms of the Agreement, the Digital Content Creator agrees to (i) promote Client's Software and the Business on Digital Content Creator's social media or where agreed by the Parties; (ii) create certain digital content following the instructions of the Client; and (iii) post such content on the social media (or wherever agreed by the parties) and on the schedule agreed between the Parties, subject to the conditions set out in the Order Form/Statements of work that details the specific services to be performed by Digital Content Creator (as executed, a “Statement of Work” or “Order Form”).

Each Statement of Work will expressly refer to the Agreement, will form a part of the Agreement, and will be subject to the terms and conditions contained herein, unless otherwise expressly agreed between the Parties in writing in the relevant Statement of Work. A Statement of Work may be amended only by a signed (by each Party’s authorized signatory) and written agreement of the Parties. THESE TERMS AND CONDITIONS JOINTLY WITH THE ORDER FORM/ STATEMENT OF WORK ARE CONSIDERED AS ONE SINGLE DOCUMENT AND COLLECTIVELY REFERRED TO AS “Webinar, Conferences, Digital Creation And Associated Services” or “Agreement”.

1.2 Performance of Services. Digital Content Creator will perform the services described in each Statement of Work (the “Services”) in good faith, in a professional and diligent manner consistent with industry standards and good business practice, using efforts comparable to those customarily used in in-person events, conferences, webinars, promotional social media and various marketing campaigns of equivalent value and for similar products or services, all in accordance with the terms and conditions herein and set forth in each Statement of Work. Unless otherwise agreed by Client, Digital Content Creator will determine, in Digital Content Creator’s sole discretion, the manner and means by which the Services are accomplished, subject to the requirement that Digital Content Creator will at all times comply with applicable law.

1.3  Performance of the Services and Time is of the Essence. Digital Content Creator will perform the services described in each Statement of Work (the “Services”) diligently and in good faith, in accordance with these terms and conditions and the Statement of Work. Unless otherwise agreed by Client, Digital Content Creator will determine, in Digital Content Creator’s sole discretion, the manner and means by which the Services are accomplished, subject to the requirement that Digital Content Creator will at all times comply with applicable law.

The Digital Content Creator hereby understands, acknowledges and accepts that time is of the essence with respect to the Digital Content Creator’s obligations set out in the Agreement and that prompt and timely performance of all Digital Content Creator's obligations is strictly required.

1.4  Equipment and Facilities. The Digital Content Creator has its own infrastructure and the necessary materials for the provision of the Services and will provide the Services with its own organizational criteria, without prejudice to the technical indications that it may receive from the Client. The Digital Content Creator shall provide the Services in the most appropriate manner for the end sought by the Agreement and, due to the nature of the same, there will be no specific working day or timetable and the Services commissioned will therefore be provided at the request of the Client and when relevant for the proper execution of the terms of the Agreement. The Parties  will determine the time, place and order in which Digital Content Creator will perform the Services in accordance with any milestones, Deliverables and/or timeline set forth in a Statement of Work.

2. DELIVERABLES

2.1 Any relevant deliverables to be receipt by the Client in the agreed due date are those set out in each Statement of Work (the "Deliverables").

2.2 Timeframes for Deliverables are subject to compliance by the Client's responsibilities set out in the Agreement.

2.3 The Deliverables to be provided by the Digital Content Creator shall conform with Client's instructions and specifications and abide by the terms and conditions of the applicable social platforms.

2.4 Client's approval shall be required prior to the Digital Content Creator uploading or publishing any Deliverable. Client may request Digital Content Creator to incorporate hashtags, links, titles, or other relevant information of the media and content being uploaded or published. Any Deliverables must be in compliance with the terms and conditions of the applicable social media.

2.5 THE Digital Content Creator AGREES THAT, WHEN PUBLISHING ANY DELIVERABLE, SUCH AS CONTENT, POSTS, STATUSES, OR ANYTHING OF THE LIKE, THEY MUST VISIBLY DISCLOSURE THEIR “MATERIAL CONNECTION” WITH CLIENT. The Digital Content Creator agrees to abide by industry guidelines set forth in various Codes of Conduct, including but not limited to the "Code of Conduct on the use of Digital Content Creators in advertising" (2020; available on https://www.autocontrol.es) and the specifications of the Client as detailed in Order Form-Statement of Work. This includes the fact that the Digital Content Creator was provided with consideration (fees) and was provided with experiences or is being paid for a certain service. SUCH DISCLOSURE SHOULD BE CLEAR AND CONSPICUOUS MADE WITHIN CLOSE PROXIMITY TO ANY STATEMENTS THE Digital Content Creator MAKES ABOUT CLIENT, THE SOFTWARE AND/OR THE BUSINESS. Such disclosures are required irrespective of any space or character limitations of a medium and shall be adapted to the form in which the advertising is being carried out. For example, on Twitter, the disclosure can be made via Hashtags: #colaboracionpagada, #publicidadpagada, #publicidad, #advertising, #sponsoredcontent. The Digital Content Creator understands and agrees that Deliverables are to make only honest and factual statements and representations about Client's Software and/or Business of which the Digital Content Creator knows with confidence that the statements are truthful and can be verified.

3. CLIENT RESPONSIBILITIES

3.1 Cooperation with Digital Content Creator. Client shall:

a) nominate in writing an authorized representative to provide Digital Content Creator with instructions;

b) work collaboratively with Digital Content Creator, including by providing Digital Content Creator with all relevant materials and information in a timely manner;

c) provide Digital Content Creator with the Client's expectations and ideas relative to how approval of the Deliverables will be measured;

d) provide Digital Content Creator with feedback on the work upon request in clear communications;

e) approve the Deliverables; and

f) carry out any other action, within the reasonable framework of the contractual relationship with the Digital Content Creator, that facilitates the achievement of the objectives established in the Statement of Work.

3.2 Approval of the Deliverables. Upon receipt on the due date, Client shall examine the Deliverable in no more than seven (7) business days and, if it complies with the criteria and instructions provided by Client to be conformant, shall approve it. If Digital Content Creator does not hear from Client within the seven (7) business days after the date of receipt of the Deliverable, the Deliverable shall be considered conformant and approved.

If after examining the Deliverable, Client informs Digital Content Creator of any non-conformity resulting in a failure to accept the Deliverable and the reasons for such failure, Digital Content Creator shall, as soon as reasonably practicable and, in any event, within five (5) business days, make all necessary corrections to the Deliverable in accordance with the non-conformities and shall then (i) inform Client in writing that the corrections are complete and shall (ii) re-submit the Deliverable to Client. Client shall then re-examine the corrected Deliverable to check whether it is conformant. The procedures set forth in this clause shall be repeated until the relevant Deliverable is approved by Client. Approval shall not be unreasonably withheld.

4. PAYMENT

4.1 Fees. As Digital Content Creator’s sole compensation for the performance of the Services (any corrections made to a Deliverable under the terms of Section 3.2 above included), Client will pay Digital Content Creator solely the fees specified in each Order Form-Statement of Work in accordance with the terms set forth therein. Digital Content Creator acknowledges and agrees that, if specified in a Statement of Work, Client’s payment obligation will be expressly subject to Digital Content Creator’s completion of Services provided therein or achievement of certain milestones to Client’s reasonable satisfaction.

4.2 Expenses. Unless otherwise provided in the Statement of Work, Client will reimburse Digital Content Creator, as appropriate, for reasonable duly documented travel and other related expenses incurred in the course of performing the Services hereunder, always provided, however, that any such expenses are approved in advance in writing by Client. As a condition to receipt of reimbursement, Digital Content Creator will submit to Client reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under the Agreement.

 4.3 Payment Terms. The payment terms will be set forth in the Order Form-Statement of Work. The Parties will use their respective commercially reasonable efforts to promptly resolve any payment disputes.

5. RELATIONSHIP OF THE PARTIES

5.1 Independent Contractor. Digital Content Creator’s relationship with Client will be that of an independent contractor acting as a service provider to Client, and not that of an employee, worker, agent or partner of Client. Digital Content Creator will not be entitled to any statutory benefits payable to employees or workers by law, or otherwise any benefits paid or made available by Client to its employees or workers, including, without limitation, any retirement or pension benefits, social security contributions, provident fund or gratuity payments; vacation, holiday, or illness payments; participation in any plans, arrangements or distributions made by Client pertaining to any bonus, stock options, profit sharing, insurance or similar benefits; or any other any end-of-service benefits payable to an employee or worker. Client will not assume liabilities derived from any employment relationship or any other relationship of whatever nature between Digital Content Creator and any other personnel that Digital Content Creator may involve in the provision of the Services.

5.2 No Authority. Digital Content Creator will have no authority to enter into agreements that bind Client or create obligations on the part of Client without the prior written authorization of Client. Digital Content Creator will not hold itself out as being an employee, agent, partner or assignee of Client, as having any authority to bind Client or to incur any liability on behalf of Client, and will make such absence of authority clear in its dealings with any third parties.

5.3 Status. The Agreement is one for the provision of services and not a contract of service or employment, and accordingly, Digital Content Creator will be solely responsible for (a) payment of all taxes, salaries, benefits, national insurance premiums, social security contributions, withholding taxes, workers’ compensation, unemployment and disability insurance, and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services required by any government agency or any other competent authority; and (b) compliance with all applicable labor and employment requirements with respect to Digital Content Creator’s self-employment, sole proprietorship or other form of business organization. Digital Content Creator will report to all applicable government agencies as income all compensation received by Client pursuant to the Agreement.

5.4 Liability. Digital Content Creator will be liable for and will indemnify and hold Client harmless for any loss, liability, costs, (including reasonable fees and expenses of attorneys and other professionals and court costs), penalties, damages and expenses arising from any breach of the terms of the Agreement and/or any applicable Statement of Work (including its data protection provisions) by Digital Content Creator. Digital Content Creator will accordingly maintain in force suitable insurance policies. Digital Content Creator acknowledges that Client will not carry any liability insurance on behalf of Digital Content Creator. Digital Content Creator will provide promptly copies of such insurance obtained on reasonable request.

5.5 Indemnification by Digital Content Creator. Digital Content Creator will indemnify and hold Client harmless from and against all damages, liabilities, losses, penalties, fines, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or relating to any obligation imposed by any government authority, arbitration body and/or court of law on Client to pay any withholding taxes, social security, unemployment or disability insurance, employees’ salary, severance payment, retirement and/or pension benefits or similar items in connection with compensation received by Digital Content Creator pursuant to the Agreement. In the event of any violation by Digital Content Creator of applicable law related to this Section 5.5, Digital Content Creator will indemnify Client for and in respect of:

a) payment of all taxes, salaries, benefits, severance payment, national insurance premiums, social security contributions, withholding taxes, workers’ compensation, unemployment and disability insurance, employees’ retirement and/or pension benefits and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services required by any government agency; except where recovery by Client pursuant to this Section 5.5 is prohibited by law; and all reasonable costs, expenses, penalties, fines or interest incurred or payable by Client in connection with or in consequence of Digital Content Creator’s failure to pay any amounts due and owing to any government agency; except where Digital Content Creator’s failure to pay was caused directly by Client's negligence (excluding any acts beyond Client's control) or intentional misconduct; and

b) any liability arising from any employment-related claim or any claim based on worker status (including reasonable fees and expenses of attorneys and other professionals and court costs) brought by Digital Content Creator (or any subcontractor) against Client arising out of or in connection with the provision of the Services.

5.6 Set-off. Client may, in its sole discretion, satisfy any of the indemnities set forth in Section 5.5 (in whole or in part) by way of deduction from any payments due to Digital Content Creator.

6. OWNERSHIP

6.1 Disclosure of Work Product. As a consequence of the Services that Digital Content Creator will render under this Terms and Conditions and/or pursuant to the specific instructions received in an Statement of Work, Digital Content Creator acknowledges that the Services may result in the development of works, visual and, audiovisual materials, videos, music, pictures, texts, products, designs, drawings, notes, documents, information, improvements, works of authorship and other intellectual creations of any kind that Digital Content Creator may make, create, conceive, develop or reduce to practice, alone or jointly with others, or learned, in whole or in part, during the term of the Agreement that relate to the subject matter of or arise out of or in connection with performing Services and that might be protected by Intellectual Property Rights (the “Digital Content Creator Work Product”). Digital Content Creator Work Product includes all Deliverables that Digital Content Creator has undertaken to provide Client in the course of performing the Services. 

6.2 Ownership of Digital Content Creator Work Product. Digital Content Creator agrees that all Digital Content Creator Work Product will be the sole and exclusive property of Client. By means of this Terms and Conditions, Digital Content Creator hereby irrevocably transfers and fully assigns to Client, and agrees to irrevocably transfer and assign to Client, to the greatest possible extent, on a worldwide and exclusive basis, for unrestricted exploitation in terms of time (i.e., for the entire period of protection established by the applicable law), content and territory and in all media, and through any means, modes, forms, procedures, channels and systems, in each case at the time they arise, all right, title and interest in and to (i) Digital Content Creator Work Product; and (ii) any and all Intellectual Property Rights therein (the IPR Assignment"). The Client hereby accepts the above-mentioned IPR Assignment. As a consequence of the foregoing, Digital Content Creator expressly (i) agrees and accepts that Client is (and will be) the sole, exclusive and rightful owner of all Digital Content Creator Work Product and any and all Intellectual Property Rights related thereto; and (ii) waives, to the maximum extent permitted by applicable law, any rights that Digital Content Creator may have over Digital Content Creator Work Product and the Intellectual Property Rights related thereto.

6.3 IPR License. In the event that the IPR Assignment as set out in the preceding Section 6.2 were deemed non-valid, unenforceable and/or inadmissible under applicable law, hereby Digital Content Creator grants Client, to the maximum extent permitted by applicable law, a perpetual, worldwide, exclusive, licensable and assignable licence of (i) any and all Intellectual Property Rights of the Digital Content Creator Work Product and (ii) any and all Intellectual Property Rights generated by Digital Content Creator in the course of the Services (or resulting from the Services) under the Agreement, for its unrestricted use and exploitation by Client in terms of time, territory, content, media (both analogical and digital), through any media, and through any means, modes, forms, procedures, channels and systems (the "License"). The License shall also include, in the above-mentioned terms, the right of communication and making available to the public, as well as the right of transformation and the right to adapt any Digital Content Creator Work Product. This shall also apply to so far unknown exploitation methods. Client hereby accepts the License granted by Digital Content Creator.

6.4 Image rights License. Digital Content Creator hereby grants Client, to the maximum extent permitted by applicable law, a perpetual, worldwide, non-exclusive, licensable and assignable licence of the Digital Content Creator's image rights (name, recognizable image and voice) existing in any Deliverable and/or the Digital Content Creator Work Product, for its unrestricted use and exploitation by Client in terms of time, territory, content, media (both analogical and digital), through any media, and through any means, modes, forms, procedures, channels and systems. Said image rights license shall also include, in the above-mentioned terms, the right of communication and making available to the public, as well as the right of transformation and the right to adapt any Digital Content Creator Work Product. Digital Content Creator acknowledges and accepts that fees set out in Section 4 of the Agreement are inclusive of the above-mentioned Digital Content Creator's image rights license and that they are an equitable remuneration in exchange of the granting of such license. 

6.5 Background IPR. Digital Content Creator and Client each agree that any existing Intellectual Property Rights prior to the Effective Date belonging to the respective Parties (the "Background IPR") shall remain owned by the respective Parties. No transfer of ownership of such IPR may take place under the Agreement. Subject to the limitations agreed herein, Client grants Digital Content Creator a royalty-free, non-exclusive, non-transferable, non-assignable and time-limited, i.e., for the term of the Agreement or until the relevant Digital Content Creator Work Product is successfully completed, a license to use the Client's trademark and tradenames only to the extend strictly necessary for the Digital Content Creator to fulfill his/her obligations under the Agreement.

6.6 Digital Content Creator acknowledges that, except as otherwise provided herein or by applicable law, (1) the above transfer and assignment of (i) the ownership of Digital Content Creator Work Product and (ii) the Intellectual Property Rights of Digital Content Creator Work Product to Client; and (2) the granting of the above-mentioned image rights license is free of any royalty, fee, compensation or any additional consideration other than the fees set out in Section 4 of the Agreement. Thus, no further fees or compensation other than those provided for in the Agreement are due or may become due to Digital Content Creator in respect of the performance of the obligations under this Section 6. Accordingly, Digital Content Creator hereby acknowledges and accepts that the fees agreed in Section 4 of the Agreement cover any payment corresponding to the IPR Assignment pursuant to Section 6.2 above and the image rights license set out in Section 6.4 above. Furthermore, it is acknowledged and agreed by Digital Content Creator that payment by Client of the fees due under Section 4 of the Agreement shall constitute an adequate compensation, should this be the case, in return for the granting of the License.

6.7  Nothing contained in the Agreement will be construed to preclude Client from exercising any and all of its rights and privileges as sole and exclusive owner of all of the Intellectual Property Rights owned by or assigned to Client under the Agreement. Client, in exercising such rights and privileges with respect to any particular item of intellectual property, may decide not to file any registration on such Intellectual Property Right, may decide to maintain such intellectual property as secret and confidential, or may decide to abandon such intellectual property, or dedicate it to the public. Digital Content Creator will have no authority to exercise any rights or privileges with respect to the Intellectual Property Rights owned by or assigned -or, as appropriate, licensed- to Client under the Agreement.

6.8 Client is entitled with respect to the IPR assigned under Section 6.2 above to grant, assign and/or license rights of use to third parties at any time, and such granting, assignment and/or licensing may be exclusive or non-exclusive, restricted or unrestricted, or partial.

6.9 The IPR Assignment (and, as appropriate, the License granted under Section 6.3 above) and the image rights license set out in Section 6.4 above shall not terminate on termination of the Agreement, irrespective of the reason for such termination and shall persist instead in perpetuity in the terms agreed herein. 

6.10 Digital Content Creator represents and warrants:

a) That he/she is (i) the creator of any Digital Content Creator Work Product and any and all IPR generated in the course of the Services during the term of the Agreement; and (ii) the author of any Digital Content Creator Work Product, which is not a copy of third-party works, Inventions and/or designs;

b) That the Digital Content Creator Work Product will be original and free from plagiarism and that all statements contained in any Digital Content Creator Work Product (i) are true, do not infringe upon the copyright, right of privacy, right of publicity, image rights, right to honor or any other proprietary right of a third-party and (ii) do not constitute slander, calumny, libel or defamation;

c) That in the Digital Content Creator Work Product no obscene, vulgar, hateful, fraudulent, defamatory, harassing, abusive or threatening language, images or materials shall be used;

d) That any Digital Content Creator Work Product does not include know-how and/or confidential information belonging to a third party;

e) The peaceful exercise of the IPR assigned (or licensed, as appropriate) to Client by virtue of the Agreement;

f) That the Intellectual Property Rights over any Digital Content Creator Work Product are (and/or will be, upon creation) free and clear of any liens and encumbrances and no royalties, honoraria or fees are (and/or will be) payable or owed to third parties by reason of the ownership (or use) of any Digital Content Creator Work Product and/or the IPR thereof; and

g) That Digital Content Creator Work Product does not, and will not infringe, misappropriate or violate the proprietary rights of any third party, including, without limitation, any IPR or any rights of privacy or rights of publicity, except to the extent any portion of Digital Content Creator Work Product is created, developed or supplied by Client or by a third party on behalf of Client.

6.11 Digital Content Creator hereby undertakes to hold Client indemnified and harmless in case of any out-of-court complaint, judicial/arbitration claim and/or legal actions brought by third parties against Client based (entirely or partly) on the allegation that any Digital Content Creator Work Product, the IPR of any Digital Content Creator Work Product and/or the rendering of the Services, as agreed herein, infringe any third-party IPR.

6.12  At Client’s request and expense, during and after termination of the Agreement for any reason, Digital Content Creator undertakes to (i) execute and subscribe any private or public documents and carry out any other necessary reasonable acts for the IPR Assignment (or the License, should this be the case, granted) to Client to take effect and for the registration of the IPR that Client wishes to register; and (ii) collaborate in good faith with Client for such purposes. Digital Content Creator hereby appoints the officers of Client as Digital Content Creator’s attorney-in-fact to execute documents on behalf of Digital Content Creator for this limited purpose, and agrees to execute a separate power of attorney for this purpose if instructed to do so by Client.

6.13 Moral Rights. To the fullest extent permitted by applicable law, Digital Content Creator also hereby irrevocably transfers and assigns to Client, and agrees to irrevocably transfer and assign to Client, and waives and agrees never to assert, any and all Moral Rights (as defined below) that Digital Content Creator may have in or with respect to any Digital Content Creator Work Product, during and after the term of the Agreement. “Moral Rights” mean any right to which Digital Content Creator is now or may be at any future time be entitled to claim authorship of a work, to object to or prevent the modification or destruction of a work, to withdraw from circulation or control the publication or distribution of a work, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a “moral right.”

 6.14 Nothing in the Agreement may be interpreted as being intended to reduce, restrict or waive any of the Digital Content Creator's rights established by mandatory applicable legal provisions.

 6.15. Related Rights. To the extent that Digital Content Creator owns or controls (in the present or in the future) any IPR and/or image rights that may block or interfere with, or may otherwise be required for, the exercise by Client of the rights assigned (or, as appropriate, licensed) to Client under this Section 6 (collectively, “Related Rights”), Digital Content Creator hereby grants or will cause to be granted to Client a non-exclusive, royalty-free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to make, have made, use, offer to sell, sell, import, export, copy, reproduce, transform, modify, create derivative works based upon, distribute, sublicense, display, perform and transmit any products, software, hardware, methods or materials of any kind that are covered by such Related Rights, to the extent necessary to enable Client to exercise all of the rights assigned (or, as appropriate, licensed) to Client under Section 6 of the Agreement.

6.16 Exploitation. If any part of the Services or IPR or information provided hereunder is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, communicated or made available to the public, distributed and otherwise exploited (collectively, “Exploited”) without using or violating technology, image rights or IPR owned by or licensed to Digital Content Creator (or any person involved in the Services) and not assigned hereunder, Digital Content Creator hereby grants Client and its successors a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicensable right and license to fully Exploit and exercise all such image rights and/or IPR through any media, and through any means, modes, forms, procedures, channels and systems in support Client’s exercise or exploitation of the Services, the IPR related thereto, other work or information performed or provided hereunder, or any assigned rights (including any modifications, improvements and derivatives of any of them).

6.17. For the purposes of this clause:

a)    "Intellectual Property Rights" or "IPR" means rights to Inventions, Copyright, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer programmes, software, interfaces, database rights, rights in confidential information (including know-how and trade, business and commercial secrets), right of priority, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.

b)    "Copyright" means copyright and related rights in respect of any original works such as, among others, articles, texts, plans, reports, presentations and any other forms of written (in any medium) works, pictures, drawings, research materials, diagrams, data, audio and video materials, music, software and computer programmes (including object and source code, user manuals and other preparatory materials), videogames, data base and any other original and/or creative works.

c)    "Invention/s" means inventions, patents, utility models, discoveries and improvements, whether or not patentable, and whether or not recorded in any medium.

7. CONFIDENTIAL INFORMATION

71. Definition of Confidential Information. For purposes of the Agreement, all information and data that Client provides to Digital Content Creator whether or not such information and/or data is marked “confidential”, all information pertaining to the Services performed by Digital Content Creator, any Deliverables, all Digital Content Creator Work Product, Client’s Intellectual Property, the execution and content of the Agreement, and all information regarding Client’s business, including, without limitation, the identity of Client, will be deemed and treated as strictly confidential, non-public information (“Confidential Information”) unless and until Client specifically authorizes Digital Content Creator in writing that any such information may be treated as public. Except as specifically required by law or competent authorities, Digital Content Creator may disclose Confidential Information only with Client’s prior written consent. Digital Content Creator will have no authority to disclose Confidential Information except in accordance with this section. Information (i) already or generally available to the public (other than as a result of Digital Content Creator’s breach of these provisions); and information that (ii) can be shown by Digital Content Creator to Client's reasonable satisfaction to have been known by Digital Content Creator before disclosure by Client to Digital Content Creator will not be considered Confidential Information.

 7.2 Economic Value of Confidential Information. Digital Content Creator acknowledges that Confidential Information has independent economic value, actual or potential, that is not generally known to the public or to others who could obtain economic value from its disclosure or use, and that the Confidential Information is subject to a reasonable effort by Client to maintain its secrecy and confidentiality. Except as essential to Digital Content Creator’s obligations under the Agreement, Digital Content Creator will not disclose any information pertaining to the Agreement, the terms of the Agreement, or any of the Confidential Information. Except as essential to Digital Content Creator's obligations pursuant to its relationship with Client, Digital Content Creator will not make any duplication, reproduction or other copy of Client’s Confidential Information. 

7.3 Non-Use and Non-Disclosure. Digital Content Creator will not, during or subsequent to the term of the Agreement, use Client’s Confidential Information for any purpose whatsoever other than the performance of the Services. Digital Content Creator will neither deliver, reveal, nor report any Confidential Information obtained or created pursuant to the Agreement, to any federal, state or local government body or agency, or to any other person or entity, public or private, without (i) express prior written permission of Client, or (ii) a court or administrative order requiring disclosure. In the event that Digital Content Creator forms the opinion that it is required by applicable law to disclose any of Client’s Confidential Information, or is served with a witness summons, subpoena, or court or administrative order requiring disclosure of any Confidential Information, Digital Content Creator will, prior to making such disclosure, if permitted by applicable law, immediately notify Client in writing, and will, in accordance with Client’s direction, respond, appeal or challenge such witness summons, subpoena, or court administrative order, prior to disclosure, and will cooperate fully with Client in responding to, appealing or challenging any such witness summons, subpoena, or court or administrative order; except that this Section 7.3 will not apply where Digital Content Creator is required by law to disclose Client’s Confidential Information without notice to Client. Digital Content Creator will not disclose any Confidential Information to any third party, nor will use or allow the use of any Confidential Information, to further any private interest other than as contemplated by the Agreement. Digital Content Creator will take appropriate measures to ensure the confidentiality and protection of all Confidential Information and to prevent its disclosure or its inappropriate use by Digital Content Creator or, as appropriate, its subcontractors. Digital Content Creator’s obligations under this Section shall survive the expiration or termination of the Agreement.

7.4 Former or Concurrent Client’s Confidential Information. Digital Content Creator agrees that Digital Content Creator will not, during the term of the Agreement, improperly use, disclose, or induce Client to use any confidential information of any third party including, but not limited to, any former or concurrent client of Digital Content Creator. Digital Content Creator will not bring onto the premises or devices of Client any confidential information belonging to any third party. Digital Content Creator will indemnify Client and hold it harmless from and against all claims, liabilities, damages and expenses (including reasonable legal fees, court costs, expenses and other costs) arising out of or in connection with any violation or claimed violation of a third party’s rights resulting in whole or in part from the Client’s use of such third party’s confidential information by Digital Content Creator in connection with Digital Content Creator’s fulfillment of its obligations under the Agreement.

7.5 Third Party Confidential Information. Digital Content Creator acknowledges that Client has received and may receive in the future, confidential information of third parties subject to a duty on the Client’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Digital Content Creator agrees:

 a) that Digital Content Creator owes Client and any such third party, during the term of the Agreement and thereafter, a duty to hold all such confidential or proprietary information in the strictest confidence;

b) to treat any such third-party confidential information as if it was Client’s Confidential Information; and

c) not to disclose it to any person, firm, corporation or other entity or to use it except as necessary in carrying out the Services for Client consistent with Client’s agreement with such third party. 

7.5 Return of Materials. All documents and other tangible objects containing or representing Confidential Information and all copies thereof that are in the possession of Digital Content Creator will be and remain the property of Client, and Digital Content Creator will promptly return such Confidential Information and all copies thereof (including digital copies) to Client upon termination or/and expiration of the Agreement or upon Client’s earlier request, whichever the earlier. Digital Content Creator shall not keep any copies of the above materials, and once returned to Client in full, Digital Content Creator shall delete or destroy any copies which have remained in its possession.

8. DATA PROTECTION

8.1 General. Both Parties will process all Personal Data -as defined below- in accordance with, where and as applicable, the General Data Protection Regulation 2016/679 under European Union law (“GDPR”) on data protection and privacy, the California Consumer Privacy Act (“CCPA”), data protection legislation of the United Kingdom, and all other applicable data protection laws (collectively, the “Data Protection Laws”). In particular, when the digital content and/or the post created by the Digital Content Creator contain Personal Data belonging to third parties, the Digital Content Creator guarantees that it will comply with the obligations imposed by the Data Protection Laws, including, among others, the need to obtain a correct legal basis for the processing and the compliance with the information duties. “Personal Data” will have the meaning set forth in Article 4 of the GDPR, or as such term is defined under the laws of any territory with jurisdiction over the Agreement related to the protection of Personal Data.

8.2 Role of the Parties. The Parties agree that they will act as independent data controllers and that the nature of the Services does not require the Digital Content Creator to process Personal Data on behalf of the Client. In the event that in the future the Services require the Digital Content Creator to process Personal Data on behalf of the Client, the Digital Content Creator will do it as data processor, being the Client the data controller. In this case, the Parties agree to enter into a data processing agreement before the processing of Personal Data actually takes place.

8.3 Processing of the Personal Data of the representatives of the Parties. The representatives of the Parties that intervene in the Agreement (the "Data Subjects") are informed that their Personal Data will be processed for the development and execution of the Agreement, as well as for the management and archiving of the documentation related to it, and to maintain historical records of previous business relationships. The legal basis for the processing of the Data Subjects' Personal Data is the legitimate interest of the Parties in satisfying these purposes. The Personal Data of the Data Subjects will be kept as long as the contractual relationship is maintained and, subsequently, during the legally established period in which responsibilities may arise for the Parties.

The Client may transfer the Personal Data of the Digital Content Creator's Data Subjects to third parties within the framework of actions and preparatory acts of review, prior to commercial operations of any nature that may affect the Client or its assets, by way of example and not limitation, merger, spin-off, global transfer of assets and liabilities, contribution or transfer of business or branch of business activity, or any corporate restructuring operation of a similar nature contemplated by commercial regulations, as well as the assignment within the framework of the aforementioned commercial operations. The legal basis of this transfer is the legitimate interest of the Client and the third party in the successful completion of the operation.

In addition, the Client may transfer the Personal Data of the Digital Content Creator's Data Subjects in those cases provided for by law and to other companies within its business group for internal administrative purposes.

The Data Subjects, in the terms established in the applicable Data Protection Laws, may exercise the rights of access, rectification, deletion, opposition, restriction of processing, portability and not to be subject to automated individual decisions. To do this, they may be addressed to Digital Content Creator in writing to the address indicated in the Order Form. In the case of the Client, to privacy@factorial.co.

The Data Subjects will also have the right to lodge a complaint with a supervisory authority.

The Digital Content Creator's Data Subjects may contact the data protection officer of the Client at legal@pridatect.com. The Client's Data Subjects may contact the data protection officer of Digital Content Creator at the email indicated in the Order Form.

It is the obligation of the Party that provides the Personal Data of its Data Subjects to facilitate to these Data Subjects the information provided for in the previous paragraphs before providing their personal data to the other Party.

9. WARRANTIES

9.1 No Pre-existing Obligations. Digital Content Creator represents and warrants that Digital Content Creator has no pre-existing obligations or commitments (and will not assume or otherwise undertake any obligations or commitments) that would be in conflict or inconsistent with or that would hinder Digital Content Creator’s performance of Digital Content Creator’s obligations under the Agreement.

9.2 Performance Standard and Compliance. Digital Content Creator covenants and accepts that Digital Content Creator will perform the Services, as agreed in Section 1.2, in a thorough and professional manner, consistent with high professional and industry standards by individuals with the requisite training, background, experience, technical knowledge and skills to perform Services. Any deviation in the quality of the Services will be remedied by Digital Content Creator upon notice to this effect by Client. Digital Content Creator will (and will ensure that any subcontractor will):

a) comply with all applicable laws, regulations, codes and sanctions relating to anti- bribery and anti-corruption;

b) promptly report to Client any request or demand for any undue financial or other advantage of any kind received by Digital Content Creator in connection with the performance of the Agreement;

c) not engage in any activity, practice or conduct which would constitute either a tax evasion facilitation offence or a foreign tax evasion facilitation offence;

d) promptly report to Client any request or demand from a third party to facilitate the evasion of tax or any suspected tax evasion offence or facilitation of tax evasion offences whether under local law or under the law of any foreign country, in connection with the performance of the Agreement;

e) comply with all applicable laws and any policies notified to Digital Content Creator regarding a prohibition against discrimination, harassment and bullying; and

f) as required, certify to Client in writing Digital Content Creator’s compliance with this clause.

9.3 Competitive Activities. Client acknowledges that Digital Content Creator provides services to other clients. Notwithstanding the foregoing, Digital Content Creator agrees that during the term of the Agreement, Digital Content Creator will not, directly or indirectly, engage or participate in or provide services to any business that is competitive with the types and kinds of Business and Software being conducted by Client without the prior written agreement of Client; except that this Section 9.3 will not apply where prohibited by applicable law.

9.4 Non-Solicitation of Personnel. During the term of the Agreement and for a period of one (1) year thereafter, Digital Content Creator will not directly or indirectly solicit the services of any of Client’s employees, workers or contractors for Digital Content Creator’s own benefit or for the benefit of any other person or entity.

10. TERM AND TERMINATION

10.1 Term. the Agreement will commence on the Effective Date and will remain in full force and effect for one (1) calendar year from the Effective Date and shall be automatically renewed for each subsequent calendar year, unless terminated earlier in accordance with the terms of the Agreement, or a Statement of Work, or this Section 10, or upon full completion of the Services object of a Statement of Work if such Services are successfully completed by Digital Content Creator. the Agreement may be renewed an unlimited number of times. 

10.2 Termination for Breach. Except as provided below, either Party may terminate the Agreement (including all Statements of Work) if the other Party breaches any material term of the Agreement and fails to cure such breach within ten (10) working days following a written notice thereof from the non-breaching Party. Client may terminate the Agreement (including all Statements of Work) with immediate notice and with no liability to make any further payments to Digital Content Creator (other than in respect of amounts accrued before the Termination Date) if at any time Digital Content Creator:

a) commits (or any of its subcontractors commits) any gross negligence, malicious (dolo) or intentional misconduct affecting the Business and/or the Software of Client, including but not limited to acts of fraud or dishonesty, material breaches of Client’s code of conduct-related rules and policies insofar as they are applicable to independent contractors (including relating to bribery, corruption, tax evasion, data protection, equality and diversity, and health and safety);

b) commits (or any of its subcontractors commits) any bribery offense;

c) commits (or any of its subcontractors commits) a local or foreign tax evasion facilitation offense; and/or

d) is wound-up or makes arrangements with or for the benefit of Digital Content Creator’s creditors or has a court administration order made against Digital Content Creator for the reimbursement of Digital Content Creator’s creditors.

10.3 Termination for Convenience. Client may terminate the Agreement (including any Statements of Work) at any time, without assigning any reason, upon at least thirty (30) days written notice to Digital Content Creator. Client may also terminate an individual Statement of Work at any time, without assigning any reason, upon at least thirty (30) days written notice to Digital Content Creator.

10.4 Effect of Termination. Upon the expiration or termination of the Agreement for any reason: (i) Digital Content Creator will promptly deliver to Client all Digital Content Creator Work Product, including all work in progress on any Digital Content Creator Work Product not previously delivered to Client, if any, including any digital copies thereof; (ii) Digital Content Creator will promptly deliver to Client all Confidential Information in Digital Content Creator’s possession or control, including any electronic copies thereof; and (iii) Client will pay Digital Content Creator any accrued but unpaid fees due and payable to Digital Content Creator pursuant to Section 4.

10.5 Survival. The rights and obligations of the Parties under Sections 4, 5, 6, 7, 8, 9.4, 10.5, 11, and 12 will survive the expiration, new Statements of Work or termination of the Agreement to the maximum period granted under the applicable law.

11. LIMITATION OF LIABILITY

11.1 Nothing in the Agreement will exclude or limit either Party’s liability for losses incurred by the other Party resulting from: death or personal injury due to the willful intent, dolo, gross negligence of the other Party (or that of their employees, affiliates or subcontractors); a Party’s fraud or fraudulent misrepresentation; a Digital Content Creator breach of the warranties set out in Sections 6.10, 9.3 and 9.4; or a Party’s breach of applicable law. 

11.2 Subject to the provisions above, neither Party will be liable in contract, tort (including, without limitation, negligence), pre-contract or other representations (other than fraudulent misrepresentation) or otherwise arising out of or in connection with the Agreement for:

a) any loss of goodwill or reputation; or

b) any special, indirect or consequential losses suffered or incurred by a Party arising out of or in connection with the provisions of, or any matter under the Agreement; whether or not such losses were within the contemplation of the Parties on the Effective Date.

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH the Agreement, EVEN IF THE PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 11, EACH PARTY’S MAXIMUM LIABILITY WILL NOT EXCEED AN AMOUNT EQUAL TO TWENTY (20) TIMES THE UNDISPUTED OUTSTANDING BALANCES OWED TO Digital Content Creator.

12. GENERAL

12.1 Assignment. Digital Content Creator may not assign, transfer or delegate the Agreement or any of the Services, in whole or in part, without Client’s express prior written consent. Any attempt by Digital Content Creator to assign or transfer the Agreement, without such consent, will be null and void.

12.2 No Election of Remedies. Except as expressly set forth in the Agreement, the exercise by Client of any of its remedies under the Agreement will not be deemed an election of remedies and will be without prejudice to its other remedies under the Agreement or available at law or in equity or otherwise.

12.3 Equitable Remedies. Client will have the right to enforce the Agreement and any of its provisions by injunction, specific performance or other equitable relief, to the extent permissible under applicable laws, without having to post a bond or other consideration, in addition to all other remedies that Client may have for a breach of the Agreement at law or otherwise.

12.4 Attorneys’ Fees. If any action is necessary to enforce the terms of the Agreement, the substantially prevailing Party will be entitled to reasonable attorneys’ fees, court costs and any costs and expenses in addition to any other relief to which such prevailing Party may be entitled.

12.5 GOVERNING LAW. The Agreement WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE COMMON LAWS OF SPAIN (NORMAS DE DERECHO COMÚN), EXCLUDING ITS BODY OF LAW CONTROLLING CONFLICT OF LAWS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER the Agreement WILL BE BROUGHT EXCLUSIVELY BEFORE THE COURTS OF THE CITY OF BARCELONA (SPAIN) AND THE PARTIES IRREVOCABLY CONSENT TO THE PERSONAL JURISDICTION AND VENUE THEREIN.

12.6 Severability. If any provision of the Agreement is held invalid or unenforceable by a court, an arbitration body and/or a public authority of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

12.7 Waiver. The failure by either Party to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision.

12.8 Notices. All notices required or permitted under the Agreement will be in writing, will reference the Agreement, and will be deemed given when delivered via courier or via e-mail. All such notices will be sent to the postal addresses and/or the e-mail addresses set forth above or to such other e-mail address as may be specified by either Party to the other Party in accordance with this Section 12.8.

12.9 Entire Agreement. the Agreement, together with all Statements of Work, constitutes the complete and exclusive understanding and agreement of the Parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Each Party acknowledges that in entering into the Agreement it does not rely on any statement, representation, assurance or warranty that is not set out in the Agreement (including any Statement of Work). No term of any Statement of Work will be deemed to amend the terms of the Agreement unless a Statement of Work references a specific provision in the Agreement and provides that the Statement of Work is amending only that specific provision of the Agreement and only with respect to Services performed pursuant to such Statement of Work. Any waiver, modification or amendment of any provision of the Agreement will be effective only if in writing and signed by the Parties hereto. Each Party agrees that it will have no claim for innocent or negligent misrepresentation based on any provision of the Agreement.

12.10 No Partnership. No employment relationship. the Agreement does not create a partnership or joint-venture relationship nor a labor and/or employment relationship.

12.11 Counterparts. the Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

12.12 Modifications. the Agreement may be modified only by a contract in writing executed by the Parties to the Agreement against whom enforcement of such modification is sought.

12.13 Third-Party Rights. The Parties do not intend that any term of the Agreement will be enforceable by any person who is not a party to the Agreement.

12.14 Electronic Signatures. Except where prohibited by law, the Parties consent to use electronic signature service to execute the Agreement and agree that such signatures are valid and binding on the Parties.