PARTNERS INTEGRATIONS MARKETPLACE - TERMS & CONDITIONS

Last Modified: April 7th, 2025 

EVERYDAY SOFTWARE, S.L., is a Spanish company with registered office at Street Álaba, 61, 5-2ª, 08005, Barcelona, ​​Spain, with Spanish tax number ES-B66854530, registered in the Commercial Registry of Barcelona ("Factorial”). Factorial is the exclusive owner and owns all rights, title and interest in the human resources and business management software that it markets under the trade name “Factorial” through an online platform and website (the “Software” ).

For the purposes of these Terms and Conditions, "Factorial" shall include EVERYDAY SOFTWARE, S.L., as well as its Subsidiaries. A Subsidiary of EVERYDAY SOFTWARE, S.L. means any company, partnership, corporation or other type of entity controlled or otherwise under the control of EVERYDAY SOFTWARE, S.L. or which, in accordance with article 42 of the Spanish Commercial Code, is part of the same business group. The terms "controlled" and "control" indicate the ability to direct the management of the relevant entity.

By way of example but not limitation, the following are Subsidiaries of EVERYDAY SOFTWARE, SL:

• FACTORIAL LTDA (Brasil) - CNPJ: 44.259.221/0001-54.
• FACTORIAL HR SA de CV (Mexico) -  RFC: FHR2206232G7
• FACTORIAL GmbH (Germany) - HRB  294374

PLEASE READ THIS DOCUMENT AND ITS ANNEXES CAREFULLY: These Marketplace Integration Terms and Conditions (the “Terms and Conditions”) are applicable between Factorial and You as an "Application Provider", who has an interest in integrating and offering the Application  to Factorial customers through the Marketplace in exchange for the Remuneration agreed in the corresponding order form signed by and between You and Factorial (the “Order Form”). 

THESE  TERMS AND CONDITIONS AND ITS ANNEXES (IF APPLICABLE; SERVICE LEVEL AGREEMENT AND DATA PROCESSING AGREEMENT FOR ADDITIONAL SERVICES) CONSTITUTES A VALID CONTRACT WITH LEGAL OBLIGATIONS AND RIGHTS FOR THE APPLICATION PROVIDER AND FOR FACTORIAL, TOGETHER WITH THE ORDER FORM AND OTHER COMPLEMENTARY DOCUMENTATION THAT MIGHT BE ADDED AS SUPPORT.

• DEFINITIONS

For the purposes of these Terms and Conditions, the following terms shall have the meanings set forth below:

“Application” “Integration” shall mean the tool, interface, connector, mechanism and/or software application, that either (i) interacts between the Software and/or Third-Party Systems, (ii) extends the functionality of the Software, or (iii) adapts the Software to specific requirements, as described in the Order Form to be made available and licensed in the Marketplace to Factorial customers . 

“Confidential Information” shall have the meaning assigned to it in Section 7.1.

“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.

“Critical Partner” shall mean an Application Provider that either: (i) provides a service essential to Customer's daily operations; (ii) provides a service that, if it fails, would result in material adverse consequences to Customer; or (iii) is specifically designated as a Critical Partner in the executed Order Form. For purposes of this definition, "material adverse consequences" include but are not limited to financial losses, regulatory non-compliance, or significant business disruption.

“Initial Term” shall  have the meaning assigned to it in section 10.1

"Intellectual Property Rights" 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.

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

"Marketplace" refers to the public or private online platform operated by Factorial, where the Application will be made available and offered to Factorial customers.

"Marketplace Page" refers to the specific page within the Marketplace operated by Factorial, where Users can access detailed information about the Application, including its description, features, application requirements, and any other relevant content provided by the Application Provider or Factorial.

“Migration Period”  shall have the meaning assigned to it in section 10.3.

“Order Form” shall have the meaning assigned to it the Recitals. 

“Partners” refers to authorized third-party individuals, companies, organizations or entities, agents or collaborators who distribute and/or resell the Factorial’s products under the terms agreed upon in a separate partnership agreement. These Partners may also directly bill customers and manage product implementations, providing a range of services from sales to post-sale support.

“Personal Information” shall have the meaning assigned to it in Section 8.1.

“Renewal Term” shall have the meaning assigned to it in section 10.1.

“Software” shall have the meaning assigned to it in the Recitals. 

“Term” shall have the meaning assigned to it in section 10.1. 

“Terms and Conditions” shall have the meaning assigned to it in the Recitals.

“Third-Party Systems” means external platforms that are not owned or operated directly by Factorial and that may be connected to Factorial through the Applications made available in the Marketplace.

"User(s)" refers to the customers of Factorial, or of its Partners, who install and use the Application through the Marketplace or any other available way.

“Customer” or “Client”: The individual or entity that has purchased and uses the Application, including its subsidiaries and affiliates worldwide

2. OBJECT

2.1 APPLICATION

2.1.1 Developments. If specified in the corresponding Order Form, the Application Provider shall develop the Application  to effectively interact and exchange data with the Software. In  addition, and if applicable, any specific characteristics of the Application shall be set forth in the Order Form. The Application Provider shall ensure that the Application along with the Marketplace, or third-party systems, remains  compatible and operates efficiently with the Software, including adapting the Application to new versions of the Software Application Programming Interface (API). 

Factorial reserves the right to review and approve the final version of the Application and any related materials before its publication on the Marketplace. The Application shall not be listed or made available without Factorial’s prior written consent.

2.1.2 Performance of Services. The Application Provider  will perform the developing services diligently and in good faith, in accordance with these Terms and Conditions. The Application Provider will at all times comply with applicable law and any compliance policies drawn to the Application Provider’s attention insofar as they are applicable to them.

2.1.3 Equipment and Facilities. The Application Provider has its own infrastructure and the necessary materials for the provision of the services and will develop the activities with its own organizational criteria, without prejudice to the technical indications that it may receive from Factorial.

2.1.4 Subcontractors. The Application Provider may appoint, with Factorial's previous written consent, a suitably skilled substitute in replacement of the initial personnel and shall be entitled to subcontract the development of the Application, provided that the Factorial is satisfied that the sub-contractor possesses the necessary skills, expertise and resources to perform those elements of the services and that the Application Provider ensures the substitute or subcontractor will abide by the same or substantially the same obligations the Application Provider is subject to under the terms of these Terms and Conditions, particularly regarding confidentiality, intellectual property, data protection, anti-bribery, anti-corruption, anti-tax avoidance. If so required, the Application Provider will ensure that the subcontractor or substitute enters into direct undertakings with Factorial regarding these obligations. The Application Provider will continue to be bound by all the obligations in these Terms and Conditions and will  be responsible for the remuneration of the substitute or subcontractor. The Application Provider will keep Factorial fully and effectively indemnified against any reasonable costs, claims or expenses that may be incurred by it as a result of the use of such subcontractors including the reasonable cost of all instruction (necessitated by the subcontracting) for the sub-contractor. If the Application Provider subcontracts the development of the Application to any subcontractor or substitute, it shall ensure that all intellectual property rights related to the Application are fully assigned to the Application Provider. The Application Provider shall obtain from the subcontractor a written agreement expressly stating that the subcontractor has no claim, ownership, or rights over the Application or any of its components. The Application Provider shall be solely responsible for securing such assignments and ensuring compliance with this obligation.

 2.2 LICENSE

2.2.1 Right to distribute, install, and use. The Application Provider hereby grants Factorial, worldwide, irrevocable, royalty-free license to distribute, promote, and/or make the Application available through the Marketplace, and to permit Users to install and use the Application in accordance with these Terms and Conditions. 

2.2.2 Right to sublicense. Factorial is hereby authorized to grant sublicenses to Users for the installation and use of the Application. In addition, the Application Provider grants Factorial the right to sublicense the distribution and installation rights of the Application to other Partners, which may distribute it to Users under terms consistent with these Terms and Conditions. Factorial shall ensure that such Partners adhere to the same or substantially the same terms and conditions of these Terms and Conditions, including but not limited to intellectual property rights, confidentiality, and user data protection. In the event of breach of any terms and conditions by a Partner, the Application Provider shall be entitled to directly claim compensation or seek remedies from the Partners for such breach in accordance with the terms of these Terms and Conditions. 

3. SUPPORT AND MAINTENANCE

3.1. Quality Assurance. The Application Provider  agrees to test and ensure at all times that the Application complies with the technical requirements, compatibility standards, and quality benchmarks established by Factorial. The Application Provider hereby acknowledges and agrees that it is essential for the Application to function effectively for the Users and to be scalable if needed.

3.2 Support and Maintenance: The Application Provider shall provide ongoing support and maintenance to ensure the Application functions reliably and efficiently. The Application Provider shall provide support to Users for simple inquiries, providing quick resolutions to common or easily addressable issues as well as for more complex technical issues that go beyond general inquiries. This includes diagnosing and resolving advanced technical problems, investigating system errors, and addressing issues related to the application’s functionality and performance. Additionally, the Application Provider shall also provide the necessary documentation and support to ensure that the Application is implemented correctly and operates efficiently. 3.2.1 The Application Provider agrees to comply with internationally recognized security standards, such as ISO 27001, SOC 2 or equivalent, and shall provide evidence of compliance upon request by Factorial.

3.2.2In the event of any security incident or personal data breach affecting the Application or its infrastructure, the Application Provider shall notify Factorial without undue delay and in any event within 24 hours of becoming aware of such incident, and shall provide all necessary cooperation and information to mitigate the effects and comply with any legal obligations.

3.3 Service Level Agreement (SLA). The Application Provider agrees to adhere to the following Service Level Agreements (“SLA”) to ensure the performance, maintenance, and compliance of the Application:

3.3.1 Uptime.

(i) Guaranteed Uptime: The Application Provider guarantees that the Application will be available over 99.5% of the time per calendar month, excluding scheduled maintenance.

(ii) Scheduled Maintenance. Maintenance windows will be communicated at least 48 hours in advance.

3.3.2.   Problem Resolution Times.

(i) Critical Issues (any complete loss of service or critical functionality (e.g., the Application is entirely unavailable or fails to process any job postings)):

• Response time: 1 hour
• Resolution time: 6 hours

(ii) Major Issues (Partial loss of service or functionality affecting a significant portion of the service (e.g., some job boards are not accessible, but others are functional):

• Response time: 3 hours
• Resolution time: 8 hours

(iii) Minor Issues (Issues that have a low impact on the service or are cosmetic (Non-critical bugs or delays):

• Response time: 24 hours
• Resolution time: 3 business days

3.3.3. Penalties and Compensation. If the Application Provider fails to meet the agreed SLAs, penalties will apply to the agreed Remuneration. If the uptime falls below 99.5% in a given month a 10% reduction will be applied to the Application Provider’s Remuneration for that month.

Legal Compliance Penalties: If the the Application Provider is considered a Critical Partner according the Order Form, in event that the Application Provider's failure to meet the SLA, the following penalties will apply:

• A fine of €1,000 per occurrence of legal non-compliance.
• An additional 15% reduction in the Application Provider's Remuneration for the affected month.
• The Application Provider shall also indemnify the Client for any regulatory fines, penalties, or damages directly resulting from such non-compliance, up to a maximum of three (3) times the monthly Remuneration.

3.3.4 Liability and Responsibility. The Application Provider shall be liable, both directly and indirectly, for any loss of customers that results from Application Provider’s failure to comply with the SLA set out above. Additionally, the Application Provider shall be directly responsible for any administrative fines, penalties, or sanctions imposed on Factorial's clients by regulatory authorities where such fines arise from the Application Provider's failure to provide the services correctly or in accordance with the specifications set forth in this clause.

3.3.5 Insurance. The Application Provider shall obtain and maintain, at its own cost and for the duration of the Term and for a period of at least twelve (12) months thereafter, professional liability and cyber liability insurance with reputable insurers and under terms reasonably acceptable to Factorial. Upon request, the Application Provider shall provide Factorial with a certificate of insurance and proof of ongoing coverage. Failure to maintain such insurance shall constitute a material breach of this Agreement.

3.4 Compliance. The Application Provider shall comply with all applicable laws, regulations, and the applicable Marketplace  policies in the development and maintenance of the Application. 

3.5 Updates in Response to Software Development. The Application Provider will regularly update the Application to align with the latest developments and features released by Factorial for the Software, its API or the Marketplace. 

4. PAYMENT

4.1 Remuneration. Factorial shall invoice and collect payments directly from Users for the use of the Application. Notwithstanding the foregoing, in cases where a Partner has an existing relationship with a User, the Partner may bill the User directly for the use of the Application, provided that such arrangements are documented and agreed upon in writing by Factorial, the Partner, and, where applicable, the Application Provider. Factorial shall pay the Application Provider for the use of the Application according to the fees included in the corresponding Order Form (the “Remuneration”).

4.2 Payment Terms. Payment of the Remuneration to the Application Provider shall be made on a quarterly basis. The Application Provider shall issue the corresponding invoice within twenty (20) days following the end of each calendar quarter, only upon receiving a Purchase Order (“PO”) from Factorial, which must be referenced on each invoice. The PO shall be issued no later than fifteen (15) days from the end of the corresponding period in which the Remuneration has been generated. Factorial shall pay within 30 days of the receipt of the invoice by the Application Provider, to the bank account of the Application Provider specified in the Order Form. The Application Provider shall send the invoices to the following email addresses of Factorial: procurement@factorial.co + noreply.invoices@factorial.co.

The payment is subject to compliance with the necessary tax and banking requirements for the payments to be carried out legally.

4.3 Pricing Discretion: The Application Provider grants Factorial the right to independently set and adjust the final pricing to the Users at Factorial's discretion. Factorial may increase the Users price above the fixed fee and shall retain any margin generated from such increase as compensation for distribution, marketing, and support of the Application.

4.4 Auto-billing: If permitted by applicable laws and included in the Order Form, Factorial is authorized by the Application Provider to auto-bill the Remuneration payable to the Application Provider. This implies that Factorial may generate and send invoices in the name and on behalf of the Application Provider for the fees due and deduct such commissions from any outstanding payments to be made to the Application Provider.

The Application Provider declares to be informed and agrees to Factorial's self-billing of commissions from the moment of signing this document. The Application Provider agrees to review and approve any invoice generated by Factorial under this agreement within three (3) business days of receipt thereof. If the Application Provider does not object to the invoice within such period, the invoice shall be deemed accepted and shall be due for payment.

If the Application Provider objects to any invoice generated by Factorial, the Parties agree to resolve any discrepancy in good faith and in a timely manner within 5 business days of the objection.

4.5 The Application Provider undertakes to send the Bank Certificate and comply with all tax and other requirements before the first payment is due, being this condition essential for the contract to be executed and payment to be made. If not, Factorial may automatically terminate the contract and no amount will be owed to the Application Provider.

5. INDEMNITY  

5.1 Liability. Nothing in these Terms and Conditions 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; or a Party’s breach of applicable law. Subject to the provision below, 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 these Terms and Conditions for:

• any loss of goodwill or reputation; or
• 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 Terms and Conditions; 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 THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 5, EACH PARTY’S MAXIMUM LIABILITY WILL NOT EXCEED AN AMOUNT EQUAL TO FIVE (5) TIMES THE UNDISPUTED OUTSTANDING BALANCES OWED TO THE APPLICATION PROVIDER.

5.2 Indemnification. The Application Provider agrees to indemnify and hold harmless Factorial its affiliates, and their respective officers, directors, employees, and agents from and against any claims, damages, liabilities, costs, and fees (including reasonable attorney fees) arising out of or in connection with (i) any breach by the Application Provider of its obligations under these Terms and Conditions; (ii)  any violation of intellectual property rights concerning the Application (iii) any negligence, gross negligence, or willful misconduct by the Application Provider in the performance of its obligations under this Terms and Conditions, (iv) any claims for refunds, indemnifications, or complaints by a User due to a failure in the Application that results in any direct or indirect damages, (v) any direct or indirect damages caused by the application of the Application to the Marketplace, or (vi) any claims related to data breaches, loss of data or similar incident caused by the Application Provider.

6. OWNERSHIP

6.1 The Application Provider hereby warrants that it has the Intellectual Property Rights necessary to grant Factorial the right to distribute and make the Application available to Users and to permit Users to use the Application in accordance with these Terms and Conditions. 

6.2. The Application Provider will be the sole owner of all the Intellectual Property Rights to the Application. Unless expressly agreed otherwise in writing by the Parties, Factorial shall not acquire any ownership rights to the Application, or any of its updates or improvements, which shall remain with the Application Provider. Notwithstanding the foregoing, any mechanism or enhancement developed by the Application Provider specifically for the integration of the Application into the Marketplace, or any modifications or improvements made to Factorial 's existing intellectual property shall be owned exclusively by Factorial. The Application Provider hereby assigns all rights, tittle, and interest in such application, mechanism, enhancement, modification, or improvement to Factorial upon creation, including all Intellectual Property Rights therein. The Application Provider further agrees to execute any documents necessary to effectuate such assignment.

6.3. For the avoidance of doubt, these Terms and Conditions do not grant the Application Provider any Intellectual Property Rights in the Software, or other Factorial products, or any related intellectual property. 

6.4. Each Party agrees to respect the Intellectual Property Rights of the other Party and to refrain from any action that would infringe upon those rights, including unauthorized use, reproduction, distribution, or modification of the Software, Marketplace, or any proprietary materials provided by the other Party.

6.5 Each Party agrees to promptly notify the other Party of any unauthorized use or infringement of their Intellectual Property Rights of which they become aware. Each Party shall cooperate in good faith to address any infringement issues, including ceasing any infringing activity, pursuing legal action if necessary, and assisting in the protection of the Intellectual Property Rights.

6.6 Use of Third-Party Components and Artificial Intelligence. In the event that the Application incorporates or utilizes components developed by third parties, including but not limited to artificial intelligence models, open-source libraries, or external APIs, the Application Provider shall be fully responsible for ensuring that: (i) it has obtained all necessary rights, licenses, and authorizations for their use, integration, and distribution; (ii) such use does not infringe any third-party intellectual property rights; and (iii) it complies with all applicable laws and regulations, including those related to privacy, data protection, and algorithmic transparency. The Application Provider shall indemnify and hold Factorial harmless from and against any claim, penalty, or damage arising from a breach of these obligations.

6.7 The Application Provider shall not, and shall ensure that its affiliates, employees, contractors, and agents do not, directly or indirectly: (i) copy, reproduce, replicate, imitate or create derivative works of the Factorial Software, its interface, features, functionalities, workflows, or user experience; (ii) attempt to decompile, disassemble, reverse engineer, or otherwise derive the source code, underlying structure, or ideas of the Factorial Software or any proprietary technology of Factorial; or (iii) develop or offer a competing product or service based on or derived from the confidential or proprietary aspects of the Software, the Marketplace, or Factorial’s documentation. Any such action shall constitute a material breach of this Agreement and shall entitle Factorial to seek injunctive relief in addition to any other remedies available under law.

7. CONFIDENTIAL INFORMATION

7.1 Definition of Confidential Information. For purposes of these Terms and Conditions, all information and data that Factorial provides to the Application Provider whether or not such information and/or data is marked “confidential”, all information pertaining to the services performed by the Application Provider, each Party’s Intellectual Property Rights, the execution and content of these Terms and Conditions, and all information regarding Factorial’s business, including, without limitation, the identity of Factorial, will be deemed and treated as strictly confidential, non-public information (“Confidential Information”) unless and until Factorial specifically authorizes the Application Provider in writing that any such information may be treated as public. Except as specifically required by law or competent authorities, the Application Provider may disclose Confidential Information only with Factorial’s prior written consent. The Application Provider 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 the Application Provider’s breach of these provisions); and information that (ii) can be shown by the Application Provider to Factorial’s reasonable satisfaction to have been known by the Application Provider before disclosure by Factorial to the Application Provider will not be considered Confidential Information.

7.2 Economic Value of Confidential Information. The Application Provider 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 Factorial to maintain its secrecy and confidentiality. Except as essential to the Application Provider’s obligations under the Terms and Conditions, the Application Provider will not disclose any information pertaining to these Terms and Conditions, the terms of the Order Form, or any of the Confidential Information. Except as essential to the Application Provider’s obligations pursuant to its relationship with Factorial, the Application Provider will not make any duplication, reproduction or other copy of the Factorial’s Confidential Information.

7.3 Non-Use and Non-Disclosure. The Application Provider and/or its employees and/or any third party affected by the Application Provider to the services will not, during or subsequent to the term of these Terms and Conditions, use the Factorial’s Confidential Information for any purpose whatsoever other than the performance of the services on behalf of Factorial. The Application Provider and/or its employees and/or any third party affected by the Application Provider to the services will neither deliver, reveal, nor report any Confidential Information obtained or created pursuant to these Terms and Conditions, 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 Factorial, or (ii) a court or administrative order requiring disclosure. In the event that the Application Provider forms the opinion that it is required by applicable law to disclose any of the Factorial’s Confidential Information, or is served with a witness summons, subpoena, or court or administrative order requiring disclosure of any Confidential Information, the Application Provider will, prior to making such disclosure, if permitted by applicable law, immediately notify Factorial in writing, and will, in accordance with Factorial’s direction, respond, appeal or challenge such witness summons, subpoena, or court administrative order, prior to disclosure, and will cooperate fully with Factorialin 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 the Application Provider is required by law to disclose Factorial’s Confidential Information without notice to Factorial. Neither the Application Provider nor the Application Provider’s related entities, or subcontractors, nor their respective employees will disclose any Confidential Information to any third party, nor will they use or allow the use of any Confidential Information, to further any private interest other than as contemplated by these Terms and Conditions. The Application Provider will take appropriate measures to ensure the confidentiality and protection of all Confidential Information and to prevent its disclosure or its inappropriate use by the Application Provider or its subcontractors, or by the Application Providers or its subcontractors’ respective employees or related entities. The Application Provider’s obligations under this Section shall survive the expiration or termination of these Terms and Conditions.

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

a) that  Application Provider and/or, as appropriate,  its  employees  and/or  any  third  party  affected  by the Application Provider to the services owes Factorial and any such third party, during the term of these Terms and Conditions 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 Factorial’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 Factorial consistent with Factorial’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 the Application Provider will be and remain the property of Factorial, and the Application Provider will promptly return such Confidential Information and all copies thereof (including digital copies) to Factorial upon termination or/and expiration of this Terms and Conditions or upon Factorial’s earlier request, whichever the earlier. The Application Provider shall not keep any copies of the above materials, and once returned to Factorial in full, the Application Provider shall delete or destroy any copies which have remained in its possession.

7.6 Prohibition on Use of Data for AI Training or Commercial or any nos authorised Purposes. The Application Provider shall not use, process, analyze, store, or otherwise exploit any data, metadata, or information—whether directly obtained from Factorial, Users, the Software, the Marketplace, or generated through the integration—for the purpose of training, developing, or improving machine learning models, artificial intelligence systems, or any data sets. Furthermore, such data shall not be used by the Application Provider for commercial enrichment, benchmarking, profiling, analytics, or any other purposes beyond what is strictly necessary to perform its contractual obligations under these Terms and Conditions. Any such use shall be considered a material breach of this Agreement, being the Application Provider liable for direct and indirect damages caused.

8. DATA PROTECTION

8.1 The Application Provider, as an independent data controller and/or data processor, shall comply with the General Data Protection Regulation (EU) 2016/679 (GDPR) and all applicable implementing legislation governing the processing of Users’ Personal Data. For the purposes of this provision, Personal Data refers to any information relating to an identified or identifiable natural person (data subject), including but not limited to identifiers such as name, contact details, identification documents, logs, or any other data or resource that, alone or in combination, could reasonably be used to identify the individual. Additionally, Personal Data includes any data provided or shared by the User with the Application Provider for processing on their behalf and in accordance with their instructions.

8.2. The Application Provider shall comply with the data protection principles set forth in the GDPR:

• Lawfulness, Fairness, and Transparency. Personal Data shall be processed lawfully, fairly, and in a transparent manner in relation to the data subject.
• Purpose Limitation. Personal Data shall be collected for specified, explicit, and legitimate purposes and not further processed in a manner incompatible with those purposes.
• Data Minimization. Personal Data collected shall be adequate, relevant, and limited to what is necessary in relation to the purposes for which they are processed.
• Accuracy. Personal Data shall be accurate and, where necessary, kept up to date; every reasonable step shall be taken to ensure that Personal Data that are inaccurate are erased or rectified without delay.
• Storage Limitation. Personal Data shall be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the Personal Data are processed.
• Integrity and Confidentiality. Personal Data shall be processed in a manner that ensures appropriate security, including protection against unauthorized or unlawful processing and against accidental loss, destruction, or damage, using appropriate technical or organizational measures.
• Accountability. The Provider shall be responsible for, and be able to demonstrate, compliance with the GDPR principles.

8.3. The Application Provider shall only process Personal Data if and to the extent that at least one of the lawful bases under Article 6 of the GDPR applies, particularly obtaining valid consent, performance of a contract, compliance with a legal obligation or legitimate interests of the Application Provider or a third party (provided such interests are not overridden by the interests or fundamental rights and freedoms of the data subject). Where consent is relied upon as the legal basis for processing, the Provider shall ensure that such consent meets the requirements under Articles 4(11) and 7 of the GDPR, is freely given, specific, informed, unambiguous, and is capable of being withdrawn at any time without detriment to the data subject.

The Application Provider commits to provide all necessary data protection details to Factorial in order to add it to the Marketplace Page, or provide it directly to the Users. By default and as a minimum, the Marketplace pages must provide access/include a link to Application Provider’s privacy policy, Terms of Use and/or Data processing agreements, the required shared or connected data between the Application and the Software, the features of the Application to which the Software is connected (if applicable) and any Standard, Certification or Code of Conduct related to Privacy and/or Security the Application Provider is adhered to. It will be the Application Provider’s obligation to inform Factorial about any new update or change in any of the previous items. Notwithstanding the foregoing, the Application Provider acknowledges that it is responsible for informing of their privacy policy (including by submitting that policy to us for display to User).

8.4. The collection or retrieval of the User’s Personal Data through Factorial’s Marketplace or directly from the User shall be strictly limited to providing the requested service or fulfilling a contract related to an application initiated by the User. The Application Provider shall not process, store, or share such data for any other purpose unless explicitly authorized by the User and in full compliance with the GDPR or any other applicable data protection law.

The Application Provider shall ensure that all individuals whose Personal Data are collected and processed are provided with clear, transparent, and easily accessible privacy notices or policies that meet the requirements under Articles 12 to 14 of the GDPR. The notice must include, at least, the Application Provider’s identity and contact details; the contact details of the Data Protection Officer, if designated; the purposes and legal bases for processing; how long the data will be stored or the criteria for determining the retention period; any recipients or categories of recipients and details of international data transfers, if applicable; and a summary of data subject rights and how to exercise them.

The Application Provider shall provide Factorial with all necessary data protection details required for its inclusion in the Marketplace pages or direct provision to Users. The Application Provider shall provide access to or include links to its (i) Privacy Policy; (ii) Terms of Use; (iii) Data Processing Agreement (if applicable); (iv) shared or connected data categories between the Application and the Factorial’s software; (v) features of the Application that interact with Factorial’s software (if applicable); and (vi) any standards, certifications, or codes of conduct related to privacy and/or security that the Application Provider adheres to.

The Application Provider is responsible for keeping Factorial informed of any updates or changes to the aforementioned items and ensuring that they are promptly referred to in the Marketplace.

Notwithstanding the above, the Application Provider acknowledges that it remains solely liable for informing Users of any aspect relating to the processing of their Personal Data by submitting to Factorial the most up-to-date and accurate privacy notice for display.

8.5. The Application Provider shall implement appropriate measures to facilitate the exercise of data subjects’ rights under the GDPR, including, without limitation and if applicable, the rights of access, rectification, erasure (“right to be forgotten”), restriction of processing, data portability, and objection.

8.6. The Application Provider shall implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including, as appropriate, pseudonymization and encryption of Personal Data; the ability to ensure the ongoing confidentiality, integrity, availability, and resilience of processing systems; the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and a process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring security of the processing.

8.7. Where the Application Provider transfers Personal Data outside the European Economic Area (EEA), it shall do so only in compliance with Chapter V of the GDPR, including by relying on an adequacy decision by the European Commission, Standard Contractual Clauses (SCCs) approved by the European Commission, Binding Corporate Rules, or any other lawful data transfer mechanisms. Where SCCs are used, the Provider shall implement and abide by any necessary supplementary measures required to ensure an equivalent level of protection for Personal Data as mandated by the GDPR.

8.8. The Application Provider must adhere to the application system provided by Factorial, including all requirements, parameters, and scopes defined by Factorial’s application program and authorized by Users. Factorial assumes no responsibility or liability for the processing of Users' Personal Data by the Application Provider or its Application. Any such processing is solely conducted by the Application Provider and is in no way performed on behalf of Factorial.

8.9. If the Application Provider acts as a Data Processor for the User, processing personal data on their behalf, it must do so strictly in accordance with the User’s documented instructions and in full compliance with applicable data protection laws. The Application Provider shall enter into a Data Processing Agreement (DPA) with the User, as required under Article 28 of the GDPR, specifying the scope, purpose, duration, and security measures for processing. Factorial assumes no responsibility or liability for the processing of personal data by Application Providers acting as data processors. The User and the Application Provider are solely responsible for guaranteeing that their processing relationship complies with GDPR and any other applicable data protection regulations.

8.10. Factorial reserves the right to request and review documentation demonstrating the Application Provider’s compliance with data protection obligations, including updates on security certifications or adherence to industry-recognized privacy and security standards. The Application Provider shall notify Factorial in writing of any significant changes to its data processing practices, privacy policies, or compliance mechanisms that may affect its obligations under this Clause.

8.11. Factorial reserves the right to conduct audits, with at least 15 calendar days' notice, to verify the Application Provider's compliance with the obligations set forth in this Agreement, including, but not limited to, those relating to security, confidentiality and data protection.

9. WARRANTIES

9.1 No Pre-existing Obligations. The Application Provider represents and warrants that it (and any of its subcontractors) 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 the Application Provider’s performance of the Application Provider’s obligations under these Terms and Conditions.

9.2 Performance Standard and Compliance. The Application Provider covenants and accepts that the Application Provider (and any subcontractor) will perform the services 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 the Application Provider upon notice to this effect by Factorial. The Application Provider 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 Factorial  any  request  or demand  for any  undue financial or other advantage of any kind received by the Application Provider in connection with the performance of these Terms and Conditions;

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 Factorial 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 these Terms and Conditions; 

e) comply with all applicable laws and any policies notified to the Application Provider regarding a prohibition against discrimination, harassment and bullying; and

f) as required, certify to Factorial in writing the Application Provider’s compliance with this clause.

g)  The Application Provider warrants that will not intentionally or by negligence include viruses, malware, spyware, backdoors, unauthorized access mechanisms or any other code that is malicious or designed to interrupt, damage or compromise the security, integrity or availability of Factorial's Software, the Application, Users' information or Factorial's systems. The Supplier shall be liable for any direct and indirect damages caused by the breach of this obligation.

9.3 Competitive Activities. Factorial acknowledges that the Application Provider provides services to other clients. Notwithstanding the foregoing, the Application Provider agrees that during the Term, the Application Provider 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 being conducted by Factorial without the prior written agreement of Factorial; except that this Section 9.3 will not apply where prohibited by applicable law.

9.4 Non-Solicitation of Personnel. During the Term and for a period of one (1) year thereafter, the Application Provider will not directly or indirectly solicit the services of any of the Factorial’s employees, workers or contractors for the Application Provider’s own benefit or for the benefit of any other person or entity. 

9.5  Non-Solicitation and Non-Circumvention of Clients. The Application Provider shall not, during the Term and for a period of twelve (12) months following its termination, directly or indirectly without Factorial written authorization: (i) solicit, contact, or approach any Client or User of Factorial with whom it has become aware through its collaboration with Factorial, with the intent of diverting such Client away from Factorial’s services; (ii) offer or market the Application or any competing product directly to Clients or Users of Factorial outside the Marketplace or without Factorial’s prior written consent; or (iii) circumvent Factorial in any commercial relationship that originates through the Marketplace or this Agreement.Any breach of this provision shall be considered a material breach and Factorial shall be entitled to seek equitable relief in addition to other available remedies.

10. TERM AND TERMINATION

10.1 Term. These Terms and Conditions shall commence on the Effective Date and shall continue for a term of one (1) year ("Initial Term"). Upon the expiration of the Initial Term, these Terms and Conditions shall automatically renew for successive one (1) year terms ("Renewal Term"), unless Factorial gives the Application Provider written notice of its intention not to renew at least one (1) month prior to the end of the Initial Term or any Renewal Term. The Initial Term together with any Renewal Terms shall be referred to as the “Term”.

10.2 Termination for Breach. Except as provided below, either Party may terminate this Terms and Conditions if the other Party breaches any material term of this Terms and Conditions and  fails to cure such breach within ten (10) working days following a written notice thereof from the non-breaching Party. The company may terminate this Terms and Conditions with immediate notice and with no liability to make any further payments to the Application Provider(other than in respect of amounts accrued before the Termination Date) if at any time the Application Provider:

a) commits (or any of its subcontractors commits) any gross negligence, malicious (dolo) or intentional misconduct affecting the business of Factorial, including but not limited to acts of fraud or dishonesty, material breaches of Factorial’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;

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

10.3 Effect of Termination. Upon the expiration or termination of this Terms and Conditions for any reason: (i) the Application Provider will promptly deliver to Factorial all Confidential Information in the Application Provider’s possession or control, including any electronic copies thereof; (iii) Factorial will pay the Application Provider any accrued but unpaid fees due and payable to the Application Provider pursuant to Section 4; and (iii) the Application Provider agrees to continue to provide service and support for the application to such Users who have installed the Application through the Marketplace prior to termination for a period of twelve (12) months following the effective date of termination (“Migration Period”). During this Migration Period, the Application Provider shall cooperate with Factorial in good faith to facilitate an orderly migration to an alternative solution, ensuring the continuity of services and avoiding any disruption. All obligations under this Terms and Conditions related to service provision, support, and maintenance shall remain in full force and effect during the Migration Period. During the Migration Period the Application Provider must:

(i) Provide Continuity of Access: Maintain uninterrupted access to the Application for all existing Users who installed it prior to termination, unless Factorial explicitly instructs otherwise.

(ii) Export and Data Transfer Support: Cooperate in good faith to facilitate the export, migration, or transfer of any relevant data, configuration settings, or integration logic necessary to transition to a replacement solution, in a secure and structured format agreed with Factorial.

(iii) Documentation and Technical Handover: Deliver to Factorial updated technical documentation, deployment guides, and any configuration or operational materials needed to support the migration. The Application Provider shall also assign technical personnel to assist in knowledge transfer sessions if reasonably requested.

(iv) Ongoing Communication: Designate a technical and operational point of contact for the duration of the Migration Period, and respond to Factorial’s migration-related inquiries within commercially reasonable timeframes.

(v) No Additional Fees: The above assistance shall be provided at no additional cost beyond the fees already accrued and payable under the Agreement, unless otherwise agreed in writing by the Parties

10.4 Survival. The rights and obligations of the Parties under Sections 5, 6, 7, 8, 9.4, 10.3, 10.4 and 11.5. will survive the expiration or termination of these Terms and Conditions to the maximum period granted under the applicable law.

11. GENERAL

11.1 Assignment. The Application Provider may not assign, transfer or delegate these Terms and Conditions or any of the services, in whole or in part, without Factorial’s express prior written consent. Any attempt by the Application Provider to assign or transfer these Terms and Conditions, without such consent, will be null and void. Subject to the foregoing, these Terms and Conditions will bind and benefit the Parties and their respective successors.

11.2 Documentation Availability. The Application Provider shall make available the following information to be publicized in the Marketplace: Terms and Conditions of the Application (Application Provider - Customer); Data Processing agreement (Application Provider - Customer) (if applicable); Privacy policy; Installation instructions;  Instructions of use; Support Contact; and any other relevant or useful resource

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

11.4 Equitable Remedies. Factorial will have the right to enforce these Terms and Conditions 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 Factorial may have for a breach of these Terms and Conditions at law or otherwise.

11.5 Attorneys’ Fees. If any action is necessary to enforce the terms of these Terms and Conditions, 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.

11.6 GOVERNING LAW. THESE TERMS AND CONDITIONS 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 THESE TERMS AND CONDITIONS  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.

11.7 Severability. If any provision of these Terms and Conditions is held invalid or unenforceable by a court, an arbitration body and/or a public authority of competent jurisdiction, the remaining provisions of these Terms and Conditions 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.

11.8 Waiver. The failure by either Party to enforce any provision of this Terms and Conditions will not constitute a waiver of future enforcement of that or any other provision.

11.9 Notices. All notices required or permitted under these Terms and Conditions will be in writing, will reference these Terms and Conditions, 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 addresses as may be specified by either Party to the other Party in accordance with this Section 11.8.

11.10 Entire Agreement. These Terms and Conditions, together with the corresponding Order Form, all Exhibits and/or annexes, 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 these Terms and Conditions it does not rely on any statement, representation, assurance or warranty that is not set out in these Terms and Conditions (including any Exhibit, Annex or Order Form). No term of any Exhibit, Annex or Order Form will be deemed to amend the terms of these Terms and Conditions unless a Exhibit, Annex or Order Form references a specific provision in these Terms and Conditions and provides that the Exhibit, Annex or Order Form is amending only that specific provision of these Terms and Conditions and only with respect to services performed pursuant to such Exhibit, Annex or Order Form. Any waiver, modification or amendment of any provision of these Terms and Conditions or an Order Form 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 these Terms and Conditions.

11.11 Counterparts. These Terms and Conditions 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.

11.12 Modifications. These Terms and Conditions may be modified only by a contract in writing executed by the Parties to these Terms and Conditions against whom enforcement of such modification is sought.

11.13 Third-Party Rights. The Parties do not intend that any term of these Terms and Conditions will be enforceable by any person who is not a party to these Terms and Conditions.