These General Conditions regulate the access and use of the ELZANET service, accessible via the www.elzaburu.es and www.elzaburu.com websites that ELZABURU, S.L.P. (CIF B80181662), hereinafter "ELZABURU", makes available to its Clients.
The request to access the Services and the use thereof implies acceptance of these General Conditions by each Client and its authorised Users.
The use of the ELZANET ® Services is subject to specific conditions (hereinafter, the "Special Conditions") which take precedence over, complete and/or amend these General Conditions. As a result, prior to using these Services, the Client must accept the corresponding Special Conditions.
1.1 SUBJECT MATTER
The subject matter of this agreement is provision by ELZABURU, via the ELZANET ® website, of various electronic Services involving querying and manipulating the Client’s files, including the possibility of requesting professional services, and accessing additional content in the field of intellectual and industrial property (hereinafter the “Services”)
Client: Natural or legal person who undertakes vis-à-vis ELZABURU to allow one or various Users to access the Services of ELZANET ® by accepting the corresponding Special Conditions. The Client may assign one or more Users.
User: Natural or legal person who, under the agreement accepted by the Client, is allowed to access the electronic Services of ELZANET ® through the assignation of a User login and Password.
File: Combination of data, documents and information relating to a matter of intellectual or industrial property. A single file may be associated with various addressees (prosecution, maintenance and watching services).
Access levels: Set of privileges assigned to each user for the purpose of accessing the Services.
Services: As defined in section 1.1 relating to the subject matter of the agreement.
Confidential information: Any scientific, technical, commercial, business or financial information relating to the subject matter of this Agreement, disclosed at any time by or on behalf of the parties in writing, orally, graphically or in machine readable form, including, but not limited to any standalone data, summary, compilation, extract, product, identifying sign, sample, working part, defective part or prototype, except where: (i) it is in the public domain at the time of disclosure or thereafter, without it being due to a breach of this Agreement; (ii) it is demonstrably in possession of the Receiving Party prior to its disclosure on the basis of its written records and without it being due to an earlier disclosure by, or on behalf of, the Disclosing Party; (iii) it is acquired by the Receiving Party lawfully and in good faith from a third party without obligation of confidentiality vis-à-vis the Disclosing Party with respect to this information; (iv) it is, in a demonstrable manner based on documentary evidence, created by the Receiving Party independently and without reference to the Confidential Information received from the Disclosing Party; (v) it is the subject of a court or administrative disclosure order, provided that the Receiving Party gives the Disclosing Party sufficient advance notice to allow it to request the appropriate protective measures before the court or administrative body; or (vi) the Disclosing Party expressly authorizes its disclosure to the Receiving Party. The burden of proof with respect to any of the six exceptions set out above rests on the Receiving Party.
Receiving Party: The party to which the Confidential Information is communicated.
Disclosing Party: The party that communicates the Confidential Information.
Intellectual and Industrial Property right: All (i) registered patents, designs and trademarks, utility models, intellectual property rights, know-how, and database rights; (ii) all other industrial and intellectual property rights and similar or equivalent rights anywhere in the world that currently exist or will be recognised in the future; (iii) registration applications, extensions, and renewals in relation to any of the above rights; and (iv) the expression of any original work or creation in any form, tangible or intangible, including, without limitation, computer programs, source code, object code, technical documentation, user manuals, training materials, technical specifications, codes or technical references and/or parts thereof, data formats, drawings, graphics, logos, as well as the results of processing, modification, updating, adaptation, new versions or changes to the said works or creations.
1.3 DURATION AND COST OF THE SERVICE
1.3.1 This agreement shall be valid until 31 December of the year of execution. After this period the agreement will be automatically extended for annual periods unless expressly terminated by either party at least one month prior to the date of expiry.
1.3.2 Access to the Services is free of charge. However, the Services rendered through ELZANET ® shall be billed in accordance with the schedule of fees in force at the time, which ELZABURU shall provide to the Client. Any change to the schedule of fees shall be communicated to the Client at least thirty days before entry into force.
1.3.3 The Services shall be billed after they have been effectively rendered.
2 ACCESS AND SECURITY
2.1 REGISTERING FOR THE SERVICES
2.1.1 All requests for access to the Services shall be made on acceptance of the economic and service conditions communicated annually to the Client by ELZABURU.
2.1.2 Any variation or change in contact details must be notified to ELZABURU by the Client or by the Users by registered post, by fax or by e-mail. The notification must expressly mention that the changes refer to ELZANET ®.
Any variation or change in the details of ELZABURU included in the Special Conditions shall be duly notified to the Client.
2.1.3 ELZABURU may, at any time, request the information it considers necessary in order to ensure that the Client or User is authorized to access the Files. ELZABURU may request the corresponding signed authorization from the Client in that regard.
2.2 USER LOGINS
2.2.1 Upon acceptance of the Special Conditions ELZABURU shall assign a User login for each Password issued.
2.2.2 The Client may request a Login for each designated User but must set the corresponding access level and scope in each case. ELZABURU reserves the right to refuse to grant a new Login for duly justified reasons.
2.2.3 The Client expressly agrees to convey to its authorized Users, and to ensure that they comply with, the content of the General Conditions and Special Conditions, as well as all the details relating to access and proper use of the Services. The Client shall be jointly liable for misuse of the Services by Users for which it has requested the corresponding access.
2.3 MAINTENANCE OF THE USER LOGIN
2.3.1 Users may ask ELZABURU to change their Password whenever they consider it appropriate, this circumstance being expressly communicated to the Client.
2.3.2 The Client shall immediately notify ELZABURU of Users that are no longer authorized to access the Services, with a view to ensuring that the technical measures required to maintain the confidentiality and security of the system are duly adopted. The consequences of the Client’s failure to communicate this fact to ELZABURU shall be solely attributable to the Client.
2.4 PASSWORDS AND SECURITY
2.4.1 The Client expressly recognizes that whoever becomes aware of the Logins and Passwords of its Users may obtain unauthorised access to the Services.
2.4.2 The Client expressly undertakes:
o To keep its User logins and Passwords secret;
o Not to allow third parties to access the Services via its User logins; and
o To take responsibility for any access to the Services via its User logins.
2.4.3 In the event that either party suspects that the security of its Users has been breached or infringed, it shall immediately notify the other party so that the corresponding Password can be changed.
2.4.4 For reasons of security ELZABURU may block access to the Services from a suspicious IP address, informing the Client immediately of this development.
2.4.5 ELZABURU is to be notified immediately in the event any User forgets their Login or password. ELZABURU shall inform the Client of its User login or password after checking the legitimacy of the request. The User login shall be notified exclusively through the secure communication method that ELZABURU considers appropriate in the circumstances, even if it results in a delay in reactivating the User login.
3 AVAILABILITY OF THE SERVICES
3.1 GENERAL AVAILABILITY
3.1.1 The Services shall be available 24 hours a day, every day of the year.
3.1.2 Nevertheless, ELZABURU may interrupt the Services for reasons of maintenance and improvement.
3.1.3 ELZABURU shall notify Clients of regular scheduled periods during which the Services shall not be available.
3.1.4 The Services may not be available at any other time due to circumstances that are unforeseeable or beyond the control of ELZABURU.
3.2 INTERNET CONNECTION
3.2.1 The Services are accessed via a secure internet connection.
3.2.2 The Client will manage its own internet connection via an Internet Service Provider (ISP). The quality of the internet connection and the service provided by any ISP, including internet connection problems, frequent disconnections and slow connection speeds, are not under the control of ELZABURU.
3.2.3 Connection to the internet Services depends on the internet connection to ELZABURU supplied by third parties and may be affected by issues not under the control of ELZABURU.
3.2.4 ELZABURU shall not be liable for any interruption or break in the Services caused by transmission or internet access problems.
3.3 INTERNET BROWSERS
3.3.1 Access to the Services requires that the User install one or more of the internet browsers listed in the Special Conditions. The installation of the browser required for the correct functioning of the Services shall be the responsibility of the User.
3.3.2 ELZABURU may make periodic improvements to the Services that require use of an updated version of the browser or a different browser. ELZABURU shall provide sufficient advance notice of planned changes, although any change in browser shall be the User’s responsibility.
3.3.3 ELZABURU will not retain an earlier version of the Services to support an older compatible browser. If the User does not install the updated version of the browser or the new browser before ELZABURU introduces its updates, the User will not be able to continue accessing the Services.
3.3.4 The use of any browser other than those notified by ELZABURU shall be at the risk of the Client. Even though the Services may seem compatible with the alternative browser, it will not have been tested by ELZABURU and, as such, may contain hidden or unforeseen incompatibilities with the Services.
3.5 CANCELLATION OF SERVICES
3.5.1 ELZABURU reserves the right to terminate the Client’s access to the Services, temporarily or permanently, for breach of the Special Conditions and General Conditions that make up this agreement, including non-payment of the professional services entrusted to ELZABURU.
3.5.2 ELZABURU reserves the right to cancel the Services at any time, temporarily or permanently, with one month’s prior notice.
3.5.3 The Client shall immediately notify ELZABURU in the event it ceases to use the Services. The Client shall remain responsible for all access to the Services under its User logins until notified by ELZABURU that access has finalised. In such a case, the Client undertakes to pay for the professional services already contracted until the agreement is terminated.
4 ACCESS PROTOCOL
4.1 ACCESS LOG
4.1.1 ELZABURU keeps an access log containing the following data and information:
o The User Login that enabled access to the Services, together with the date and time of connection;
o The date and time of disconnection, provided it takes place in accordance with the provisions of clause 4.2;
o Instructions sent via the Services, together with the date and time of issue, as well as the Login of the User who has issued them or who makes the inquiry;
o All messages sent to the Client via the Services, with User ID, together with the date and time the message was created and sent;
o Any other information on the Services that is considered beneficial.
4.2.1 As soon as a User ceases to use the Services during a session, they shall proceed to terminate the connection by clicking on the “Disconnect” button and waiting for the corresponding message confirming disconnection.
4.2.2 If a User remains idle beyond a reasonable amount of time, ELZABURU reserves the right to automatically end the session. The User should connect again and start a new session to continue using the Services.
4.3 OPEN SESSIONS
4.3.1 In the event that a User does not close a session by clicking the “Disconnect” button, it will be impossible to detect that it has concluded (even if the User closes the web browser). Consequently, the session will remain open until closed automatically due to inactivity.
4.3.2 ELZABURU shall not be liable for any unauthorised access or for any consequence arising therefrom, directly or indirectly, in cases in which the User has not ensured that the session is properly closed by clicking on the “Disconnect” button and receiving confirmation of the disconnection.
5 CHARACTERISTICS OF PROVISION OF THE SERVICES
5.1 PRELIMINARY QUESTIONS
5.1.1 ELZABURU may at any time change the information that is displayed for each File.
5.1.2 The information displayed by ELZABURU is the information contained in its own system and databases.
5.1.3 Entry of new information or data into ELZABURU’s system and the Client’s access thereto may be subject to natural delays caused by the time required by the internal processing and data recording system. For these reasons, the information displayed by ELZABURU may not be up to date.
5.2 SENDING AND HANDLING OF INSTRUCTIONS
5.2.1 By clicking on the “Save” button, the User may save the instructions he or she wishes to submit to ELZABURU, although the corresponding instructions will not be considered validated until they are sent to ELZABURU by clicking on the “Send” button and accepting the subsequent confirmation messages that the system displays on screen.
5.2.2 Validation and/or implementation of the instructions given to ELZABURU may be subject to prior provision of funds or settlement of other pending invoices by the Client.
5.2.3 With a view to guaranteeing the correct processing by ELZABURU of the instructions saved by the User, ELZABURU may require that the instructions be provided sufficiently in advance of the deadline for taking action, duly entered in the system. In the event that a deadline has passed, instructions will have to be sent by fax, e-mail or other valid system.
5.2.4 In the event a specific instruction provided by a User cannot be processed by the system, the User shall be notified in a corresponding window message displayed on screen by the system itself. This notification, which shall be duly saved in the access log, shall exempt ELZABURU from any liability in relation with the said instructions. The User’s failure to read the message, or to adopt measures in that regard, shall exempt ELZABURU from all liability.
5.3 CHANGES TO INSTRUCTIONS ISSUED
In the event that the Client issues an order to ELZABURU that contradicts an earlier order previously issued via the Services, the Client must clearly indicate in the communication that the new order is a change to a previously issued instruction. If the Client does not provide the corresponding clarification ELZABURU shall proceed to effect the last of the instructions received.
5.4 CONTRADICTORY INSTRUCTIONS
In the event that ELZABURU receives instructions relating to the same File by different means, it may not always be able to detect possible contradictions between the two. Therefore, without prejudice to the fact that ELZABURU will seek to clarify instructions that are clearly contradictory, the ultimate responsibility for any errors that may occur will rest with the Client.
5.5 INVOICING OF ACTIONS
Actions taken by ELZABURU in compliance with the instructions issued via the Services shall be invoiced to the Addressee whose File is affected by the said action. In any case, the Client shall be jointly responsible for payment of actions ensuing from the instructions given by any of the Users it has designated.
5.6 NOTES MADE BY THE CLIENT FOR ITS OWN USE
5.6.1 The system allows the Client to make notes associated with each File for their own use. These notes shall under no circumstances be considered instructions or orders directing ELZABURU to take action or refrain from taking action.
5.6.2 Any instruction that the Client wishes to issue to ELZABURU shall be in accordance with the provisions of clause 5.2 of these General Conditions.
Should any discrepancies arise in the receipt by ELZABURU of instructions sent by the Client via the Services, the parties agree that the access log referred to in clause 4.1 of the General Conditions shall, unless otherwise proven, serve to accredit the instructions effectively provided via the Services, as well as the absence thereof.
6 GROUNDS FOR TERMINATION OF THE AGREEMENT
6.1 GROUNDS FOR TERMINATION
Without prejudice to the content of other clauses, this agreement may be terminated on the following grounds:
o Expiry thereof, in the event that either party has notified the other of its intention not to proceed with renewal.
o Breach by either party of the agreed terms and obligations; on the understanding that non-compliance or delays due to force majeure or administrative restrictions or other causes reasonably beyond the control of the parties shall not entail breach of the agreement, nor shall the breaching party be deemed responsible therefor.
o Dissolution or closure of either party.
o Mutual agreement.
7.1 AUTHENTIC TEXT
These General Conditions have been drawn up in Spanish. In the event of a discrepancy between the Spanish text and its translation into any other language, the Spanish text shall prevail.
7.2 INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
7.2.1 All pre-existing industrial and intellectual property rights, or any other rights, held by either of the parties, taken individually, are and shall at all times remain the exclusive property of the owner, irrespective of whether or not they are protected under the industrial and/or intellectual property laws applicable in Spain or any other country at any given time. The parties acknowledge and accept this circumstance.
As a consequence, in accordance with the provisions of these General Conditions neither party shall acquire any right, title or interest in pre-existing intellectual and industrial property in the name of the other party, except where specifically required in order to comply with the provisions the General Conditions.
7.2.2 ELZABURU shall refrain from seeking to protect as its own, and from challenging, any intellectual and industrial property assets and rights belonging to the Client, both inside and outside the Territory, irrespective of whether or not they are protected under the industrial and/or intellectual property laws applicable in Spain or any other country at any given time, and shall also refrain from using them in a manner different from that set out herein.
7.2.3 All the information, data and content included in the Services are the property of ELZABURU and are protected by industrial and intellectual property legislation. None of the Services may be publicly reproduced or communicated, directly or indirectly, by any medium or support for use different from that strictly covered under this agreement without the express, advance, written consent of ELZABURU. Commercial use, distribution, as well as modification, alteration or decompilation thereof is likewise prohibited.
7.2.4 The Client may print the data, information and content of the Services for strictly personal, non-commercial use. Similarly, the Client expressly agrees not to sell, disclose, distribute or furnish the features and structure of the Services to third parties.
7.3.1 The content of this agreement and any information related thereto disclosed by either party shall be considered Confidential Information and shall be preserved as Confidential Information by the Receiving Party.
7.3.2 ELZABURU, the Client and the User undertake to keep the Confidential Information secret and, above all, undertake not to communicate to third parties the information relating to their strategic plans, fees, functions and activities in general received from the other party during the negotiation, execution, or implementation of this agreement.
7.3.3 ELZABURU, the Client and the User shall not disclose any of the Confidential Information during the duration of the agreement or for five (5) years following expiry.
7.3.4 ELZABURU, the Client and the User shall ensure that all their staff treat the information relating to this agreement as confidential and shall have their employees or consultants who access the said information sign a confidentiality agreement.
ELZABURU, the Client and the User shall be jointly liable together with their employees, agents and third parties under their responsibility for all damages that may arise as a result of the breach of this confidentiality obligation, without prejudice to the injured party's bringing actions to which it is entitled against the other party or against third parties on the basis of the law applicable at any given time.
7.3.5 The Confidential Information may be communicated under the obligation of confidentiality, upon prior notification to the owner thereof of the intention to disclose the said information and receipt from the said owner of the corresponding written consent.
ELZABURU has adopted and developed various technical measures with a view to ensuring that its system and the Services are free from any computer virus or the like and to preventing infection of the User’s computers or equipment, although it can offer no guarantees, and thus cannot be held liable for any loss or damage that may arise as a consequence thereof. It behooves the User to ensure that their computer equipment and system are not infected by any type of virus or similar.
7.5 NOTIFICATIONS BETWEEN THE PARTIES
7.5.1 For the purpose of communications, the parties hereby indicate that their addresses for service are as follows:
C/ Miguel Angel, 21
28010 MADRID (Spain)
Tel. (34) 91 700 94 00
Fax: (34) 91 319 38 10
o The Client: as set out in the Special Conditions.
7.5.2 Notifications may be sent by any of the following means:
o Fax, when the source and destination can be duly accredited.
o Registered post.
o Any other written form that allows the parties to reasonably prove that the communication was sent and duly received.
7.5.3 Any change or variation that may occur in the addresses and particulars of the parties shall be notified in the terms set out in the preceding clause at least seven days prior to becoming effective.
8 LEGAL NOTICE
8.1 APPLICABLE LEGISLATION AND COMPETENT JURISDICTION
This agreement shall be construed and governed in accordance with the laws of Spain. Both parties agree that any dispute, discrepancy, issue or claim resulting from implementation or interpretation of this agreement or the relationships derived therefrom, directly or indirectly, shall be resolved in the courts of the city of Madrid (Spain), expressly waiving any other jurisdiction to which they may be entitled under the law. However, ELZABURU and the Client undertake to amicably settle any disagreement that may arise during implementation of this agreement prior to taking the matter to court.
If any clause of these General Conditions is held to be invalid or unenforceable by judgment or decision of a court of the competent jurisdiction or by an authority whose decisions are binding on the parties, the said clause shall not apply. In such a case, the remaining terms of the agreement shall not be considered affected or altered by the said decision and shall remain valid and enforceable to the extent permitted by Law.
9 AMENDMENT OF THE GENERAL CONDITIONS
9.1 RESERVATION OF RIGHTS
ELZABURU reserves the right to amend these General Conditions at any time. In such case, the Client may, within a maximum term of fifteen (15) days from notification of the changes made by ELZABURU, proceed to terminate this agreement.
9.2 REGULATORY CHANGES
If the terms of the agreement become invalid or unlawful due to regulatory changes, the parties agree to introduce the required amendments with a view to adjusting the contractual relationship to the legislation in force, provided that the result of amendment does not contravene significant conditions of the agreement. In the event that the amendments are in contravention of the said conditions, the agreement may be terminated in accordance with the provisions of the preceding paragraph.