Terms & Conditions
These terms and conditions set out the contractual relationship between BANZZU S.L., (hereinafter referred to as “BANZZU“) and on the other hand the CLIENT.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICES. BY CLICKING THE “CONTINUE” BUTTON TO COMPLETE THE REGISTRATION PROCESS OR TO ACCESS OR USE ANY OF THE SERVICES, YOU EXPRESSLY CONSENT AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, ARE OF LEGAL AGE TO ENTER INTO A BINDING CONTRACT WITH BANZZU, AND HAVE THE CAPACITY TO ENTER INTO THE AGREEMENT ON BEHALF OF THE CUSTOMER. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
HEREBY EXPRESS
- That BANZZU is a company whose corporate purpose is, among others, the development of software, solutions and computer applications, the provision of computer services and the marketing and implementation of computer applications, offering within its scope of action access to its technological platform of computer solutions (SaaS) and Professional Outsourcing Services (Outsourcing), hereinafter generally referred to as the “Services”.
- That the CLIENT wishes to contract part of the professional digital services offered by BANZZU, specifically: Customised Parameterisation of a specific application for restaurants, creation of a website with a digital menu, ordering system in a web version, maintenance and support.
- That the Parties freely and voluntarily enter into this SERVICE PROVISION AGREEMENT (hereinafter, the Agreement), which shall be governed by the following,
CLAUSES
FIRST – DEFINITIONS
For the purposes of this Contract, the following definitions shall apply:
1.1 “CLIENT Content” refers to all material, information, photographs, writings and all creative material provided by the CLIENT to be used in the preparation of and/or incorporation into the software to be developed by BANZZU.
1.2 “Final Art” refers to all creative content developed or commissioned by BANZZU, for the Project, including, but not limited to, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments, modifications to the CLIENT’s content, layout and coordination of these elements in conjunction with the CLIENT’s content and/or third party material.
1.3 “Deliverables” refers to the services and work product performed as a result of mutual agreement between the CLIENT and BANZZU to be delivered by the service provider to the client.
1.4 “Final Deliverables” refers to the final versions of the Deliverables provided by BANZZU approved and accepted by the CLIENT.
SECOND – SUBJECT MATTER OF THE CONTRACT.
The purpose of this contract is, in the Premium plan, the parameterisation and use of the software in App and Web version, as well as its maintenance and support service provided by BANZZU in accordance with the content (logos, corporate image elements and functionalities) provided by the CLIENT, together with the final artwork provided by BANZZU that will give rise to the Final Deliverable.
In the case of the Advanced plan, the object of the contract will consist of the use of the software in Web version, as well as its maintenance and support service provided by BANZZU in accordance with the content provided by the CLIENT together with the final artwork provided by BANZZU that will give rise to the Final Deliverable.
From this moment on, the CLIENT subscribes to the software maintenance service provided by BANZZU, which consists of hosting and hosting of all the information packages included in the same, resolution of incidents without involving the modification of the functionality or functionalities in question, as well as consultations and contacts for the resolution of the same or other issues.
The provision of services under this contract will be carried out by BANZZU, which will provide the service with complete autonomy and independence from the CLIENT and in accordance with the degree of specialisation and diligence that characterises it, in accordance with the uses and customs of its sector of activity.
THIRD – AMENDMENTS AND ADDITIONS TO THE SUBJECT MATTER.
BANZZU may modify the Agreement due to changes in the Services, to take into account developments in the law or for any other reason. When material modifications are made, BANZZU may (and where required by law, will) email you at the last address you provided to us in accordance with the Agreement to provide you with an updated copy of the Agreement. BANZZU may ask you to consent to the updated Agreement in an express manner before allowing further use of the Services. If you do not agree to any change(s) after receiving notice of such change(s), you must stop using the Services, in which case you will be refunded the pro rata amount of the unused subscription. Otherwise, your continued use of the Services constitutes acceptance of such changes. PLEASE CHECK THE BANZZU WEB SITE REGULARLY FOR THE THEN CURRENT TERMS.
FOURTH – SOFTWARE FEES.
In the case of the Premium Plan, the application parameterisation fee must be paid according to the options selected by the CUSTOMER. This fee shall be paid in instalments, the first payment being made before starting the service and the second at the time of delivery. In addition, the CUSTOMER shall pay the subscription established in the website tariffs to obtain the use of the software as well as maintenance and support services.
In the case of the Advanced Plan, no initial fee shall be incurred and the CUSTOMER shall pay the subscription established in the tariffs of the website to obtain the use of the software as well as maintenance and support services.
The accrual of the first subscription fee, if any, will occur when the software is made available.
If the CUSTOMER is in arrears with the payment of the aforementioned fees, the service will be temporarily suspended by BANZZU and will not be resumed until payment is made. The termination of the service for this reason will not be reclaimable by the CLIENT.
The foregoing stipulation is without prejudice to the accrual of interest for late payment referred to in Law 3/2004. In the event that said law is not applicable, the interest for late payment shall be 4 basis points above the legal interest rate published by the Bank of Spain and calculated on the unpaid amounts from the date of non-payment until the date of full payment.
Payment of the contract prices will be made by bank card through the Stripe payment gateway integrated into the control panel provided to the CLIENT after registration, BANZZU will make the requirement of the initial and monthly amounts, if any, by said platform and generating the corresponding invoice.
The amount agreed upon as the price has been set without taking into consideration, i.e. not including Value Added Tax or any other tax that, if applicable, would replace it.
The reference to Value Added Tax shall be understood to be made to the Canary Islands General Indirect Tax and/or the Tax on Production, Services and Imports in the cities of Ceuta and Melilla, in those territories where these taxes are in force, or any other taxes that may replace the aforementioned.
The price established in this clause is fixed for the purposes of providing the service that is the object of this Contract. If the services are modified or extended, the CLIENT and BANZZU agree to negotiate the new price for the services.
FIFTH. – DURATION OF THE SOFTWARE CONTINUITY SERVICE.
The software maintenance and support service is included in the payment of the subscription offered by BANZZU described in clause two, the minimum duration will be 1 month, corresponding to the payment of the first monthly subscription, being renewable for equal periods as long as payments continue to be made. The CUSTOMER may withdraw from the contract whenever he/she deems it appropriate. In the event of non-payment 5 days after the due date by the CLIENT, BANZZU reserves the right to cancel the CLIENT’s subscription.
SIXTH – BANZZU’S OBLIGATIONS
BANZZU undertakes to provide the services for which it is contracted in a diligent manner and in accordance with the professional customs and practices of its sector of activity.
BANZZU also undertakes to provide the services within the dates and/or deadlines agreed with the CLIENT.
BANZZU undertakes to process data in accordance with current legislation and maintain confidentiality of CLIENT information such as business strategy and in the terms defined in this contract.
BANZZU undertakes to introduce a text on the CLIENT’s website and/or app regarding data protection that will govern the processing of the information that the restaurant user provides to the CLIENT. Notwithstanding the foregoing, BANZZU is not obliged to update the text in the future nor will it incur any responsibility for how the CLIENT makes use of the information collected through the software, given that, in relation to data protection in the relationship between the CLIENT and the restaurant users, the responsibility will be exclusively that of the CLIENT.
Similarly, BANZZU undertakes to receive information from the CUSTOMER via phone calls, e-mails or instant messaging and to verify the consistency of the information.
BANZZU also undertakes to ensure that the personnel assigned to provide the contracted services are aware of the particular needs of the CLIENT.
In particular, BANZZU undertakes to ensure that the people who may be assigned to the development of the contracted services have the appropriate qualifications and experience to carry out the agreed work. They are also aware of the content of the clauses relating to intellectual property, confidentiality and the processing of personal data established in the Contract, as well as their personal obligation to respect them.
SEVENTH – OBLIGATIONS OF THE CLIENT
The CLIENT undertakes to pay the price in due time and amount.
The CUSTOMER undertakes to inform or provide all useful and/or relevant and truthful information for the correct execution of the provision of the services. In particular, those data or information relating to their particular needs and that would contribute to an optimal provision of services by BANZZU.
Likewise, the CLIENT agrees to cooperate with BANZZU during the provision of services, not hindering the provision of such services. The CLIENT acknowledges having been informed, prior to signing this Agreement, of the essential characteristics of the provision of the services covered by this Agreement and/or all information on how and/or under what conditions they are provided or performed, in addition to any other pre-contractual information that may be necessary.
EIGHTH – RESOURCES AND/OR EQUIPMENT FOR THE PROVISION OF SERVICES
BANZZU will use, for the performance or provision of the services agreed herein, the appropriate material resources and, where appropriate, personnel linked to BANZZU, who will perform their duties using the most appropriate materials, and following the instructions issued by BANZZU in accordance with the obligations it assumes under this Agreement vis-à-vis the CLIENT.
NINTH – COMMERCIAL RELATIONSHIP
The relationship between the parties to this contract is exclusively of a commercial nature, and there is no employment relationship between BANZZU and the CLIENT or, where appropriate, its employees.
The CLIENT, likewise, expressly renounces hiring, directly or through third parties, any employee or collaborator of BANZZU until it is terminated and within a period of not less than one year after the termination of this contract.
The parties reiterate that BANZZU is an independent contractor, not an employee of the CLIENT or any company affiliated with the CLIENT. BANZZU shall perform the Services at the direction of the CLIENT, but BANZZU shall determine the means and manner of performance of the Services. This Agreement does not create any form of partnership, and neither Party is authorized to act as agent or liaison for the other Party.
TENTH. – LIABILITY AND INDEMNIFICATION.
Any Party shall incur liability if it acts negligently, culpably or wilfully in the performance of its obligations under this Agreement and thereby causes damage or injury to the other Party. The Party that has to face any kind of damage or loss as a result of the other Party’s actions may claim compensation for the damage caused.
BANZZU will perform the services covered by this Agreement with due diligence and quality, and undertakes to assume liability for errors, defects or delays in performance, improper performance or failure to perform. However, BANZZU will not be liable for errors, defects or delays in the execution, or incorrect execution or non-execution of the Contract, when this arises from the omission or falsification of any information, document or data provided by the CLIENT; BANZZU will act duly validating the consistency of the information, not being obliged to verify the authenticity of such data or information.
Neither party may be held liable for any delay, defect or error in the performance of its contractual obligations when these are due to or caused by force majeure. However, the Parties are obliged to notify the other Party when they become aware that a cause of this nature has occurred and will affect the proper performance of their obligations.
Force majeure” shall mean: flood, fire, explosion, breakdown of the service provider’s facilities, lockout, strike, civil disturbance, blockade, embargo, mandate, law, order, regulation, theft, ordinance, demand or request of any government or any subdivision or representative thereof, or any other cause, which is beyond the control of the Party involved, without the lack of funds constituting force majeure.
ELEVENTH. – DUTY OF SECRECY AND CONFIDENTIALITY
The Parties undertake that the development of this Contract shall be governed by the most absolute confidentiality, respecting the duty of diligence and professional secrecy. Thus, both Parties undertake not to disclose any information relating to this Agreement, whether relating to negotiations, transactions or any other matter of the parties, nor the content or existence of the Agreement entered into hereunder, nor the activities or services to be performed.
In particular, BANZZU undertakes that any information or documentation that the CLIENT gives it or to which it has access for any reason, directly or indirectly, will be used only to serve the performance of the services covered by this Agreement and, in any case, to perform its services respecting the principles of good faith, diligence and the duty of secrecy in compliance with current regulations such as Regulation (EU) 2016/679 and the LO 3/2018 of 5 December in relation to Data Protection. Consequently, it may not provide to third parties or use for its own benefit the information it obtains in the exercise of the provision of services, provided that it may favour them or when such disclosure may harm the CLIENT in any way.
Consequently, BANZZU expressly undertakes not to make copies, record, reproduce, manipulate, disclose to third parties, or make available to third parties the information or documentation that it may receive directly or indirectly from the CLIENT, also taking into account any other limitation that is reflected in the regulations in force at the time of acceptance of this Agreement.
Notwithstanding the foregoing, confidential information does not include that which is in the public domain or which, being private at the time of delivery, subsequently enters the public domain. At such time, it shall lose its confidential nature.
TWELFTH. – DATA PROTECTION
The Parties to this Contract are aware of and undertake to comply with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and the free movement of such data (RGPD), as well as Organic Law 3/2018 on the Protection of Personal Data and the guarantee of digital rights and its implementing regulations, and/or those that may replace or update them in the future.
In this way, the Parties are aware that by signing this Contract they consent that their personal data collected in this Contract, as well as those that may be collected in the future in order to comply with or correctly execute this Contract, may be incorporated by the other Party into its own automated or non-automated data collection file in order to correctly execute the contractual relationship and, eventually, for administrative and/or commercial management.
In any case, the Parties undertake that this personal data will not be communicated under any circumstances to third parties, although, if any type of communication of personal data were to take place, they undertake to always and previously request the express, informed and unequivocal consent of the Party that is the owner of said personal data, indicating the specific purpose for which the communication of the data will take place.
This clause does not result in any limitation or restriction for the Parties with regard to the exercise of the rights of access, rectification, deletion, limitation of processing, portability or opposition that they may have.
The personal data to which BANZZU has access as a result of providing the service covered by this Agreement are the exclusive property of the CLIENT and will be understood to have been provided voluntarily by the CLIENT, and will only be used for the purpose of providing the services required in the Agreement, and BANZZU undertakes not to apply them or use them for purposes other than those agreed and not to disclose them to other persons, BANZZU also undertakes to fully return to the CLIENT the files, automated or otherwise, containing personal data to which it has had access, when required to do so by the CLIENT, and/or to destroy the media and/or documents containing such data at the end of this Agreement and, in any event, upon expiration of this Agreement.
It is reiterated that in any case, BANZZU undertakes to ensure that the processing of personal data to which it has access due to the provision of the services covered by this Agreement, and of any information in general provided by the CLIENT, is carried out maintaining the strictest professional secrecy and absolute confidentiality regarding the data, as well as to diligently comply with the duty of care and custody imposed on them by the RGPD and the LOPD.
These duties will be enforceable on BANZZU during the term of this Agreement and even after termination for any reason, being liable to the CLIENT for breach of the obligations assumed herein.
BANZZU also undertakes to adopt the necessary technical and/or organisational measures to protect the personal data to which it has access and to prevent its alteration, loss, processing and unauthorised access, in accordance with the RGPD, the LOPD and its complementary implementing regulations.
THIRTEENTH – OWNERSHIP OF THE PROJECT
Once the services have been performed and all fees have been paid, BANZZU does not assign to the CLIENT the right of ownership or copyright over any work or design comprising the work performed by BANZZU, i.e., the CLIENT expressly acknowledges and accepts that the Project is the exclusive property of BANZZU.
The CLIENT authorizes BANZZU to mention him/her, including corporate image, as a user of the software in the portfolio and websites for the sole purpose of recognition of creative quality or commercial advancement.
All CLIENT Content, including any pre-existing trademarks and copyrighted material, shall remain the property of the CLIENT. The CLIENT hereby permits BANZZU to manage such data on a non-transferable basis to use, reproduce and modify the CLIENT Content for the purpose of supporting the development of the services and deliverables generated by BANZZU for the benefit of the contracted service and for the benefit of the CLIENT.
All third party material is the exclusive property of their respective owners. BANZZU will make available to the Client, upon request, all information regarding Third Party Material that may be required to perform the Service or integrated into the Final Project. However, BANZZU shall not be liable for any incidents that may arise from third party material.
FOURTEENTH – WARRANTIES.
The CLIENT warrants and represents to BANZZU that it either owns all right, title and interest in and to the CLIENT Content or has full right and ability to permit use of the CLIENT Content. It further warrants that neither the CLIENT Content, nor any marks in connection with the Project infringe or will infringe the rights of any third party.
Furthermore, BANZZU warrants and represents to the CLIENT that the entity will provide the Development Services and produce the Deliverables mentioned in the Agreement in a professional manner and in accordance with all professional standards for such services.
Furthermore, it warrants that the Final Deliverables will be original work of BANZZU and that the Final Artwork does not infringe the rights of third parties, and the use of these, the maintenance and support service in connection with the Project does not violate the rights of third parties.
FIFTEENTH. – ASSIGNMENT OF THE CONTRACT.
The Parties may not assign their position in the present Contract, nor the rights or obligations arising from it in their favour or at their expense, without the prior, express and written consent of the other Party.
In the event of a transfer, takeover, sale or any other similar circumstance with respect to the CLIENT’s company, which is the basis for the provision of services under this contract, the CLIENT undertakes to compel the acquirer of the company to take over the CLIENT’s position, thereby creating a succession of contracts for both the CLIENT and BANZZU.
SIXTEENTH – GROUNDS FOR TERMINATION
The Parties undertake to comply with the obligations arising from this Agreement for each of them under the terms and conditions set forth herein.
In the event that either party breaches any of the obligations of the Contract, or fulfills them in a defective manner, the opposing party may consider that there has been a breach of the same in the terms established by Article 1.124 of the Civil Code, if within 10 working days it does not repair such breach, it is then entitled to choose between terminating the Contract or demanding its performance, claiming, in both cases, the corresponding compensation for damages.
SEVENTEENTH – NON-EXCLUSIVITY AND ADDRESS FOR SERVICE.
The Parties acknowledge that this Agreement does not create an exclusive relationship between the Parties. The CLIENT is free to require others to perform services of the same or similar nature to those offered by BANZZU, and the service provider is free to offer and provide its services to others, seek new customers and advertise the services offered by BANZZU.
Any notifications must be made by a reliable means that provides a record of the sending and the address of the same. In the case of e-mails to BANZZU will be sent to the address support@banzzu.com and to the CLIENT to the address used in the registration. In the case of physical notifications, the address for BANZZU will be Paseo de las Delicias 1 41001 Seville and for the CUSTOMER the address included in the registration, if any.
EIGHTEENTH – CONTRACT INTEGRITY AND VOIDABILITY
This Agreement supersedes any agreement, understanding, commitment and/or negotiation that may have been previously developed between the Parties. Likewise, the Parties acknowledge that, in the event of the existence of documents annexed and/or attached to the present Contract, these form part of or integrate the same, for all legal purposes.
Furthermore, should one or more clauses become ineffective, voidable or null and void, they shall be deemed not to be included, with the rest of the Contract maintaining its full binding force between the Parties. In this case, the Parties undertake, if necessary, to negotiate amicably and/or in good faith a new text for those clauses or parts of the Contract affected.
NINETEEN – LEGAL ACTIONS, APPLICABLE LAW AND JURISDICTION
The Parties acknowledge that they are bound by this Agreement and its Annexes, if any, and its legal effects and undertake to perform them in good faith.
Any litigation relating, especially, but not only, to the formation, validity, interpretation, signature, existence, execution or termination of this Contract and, in general, to the relationship established between the Parties, shall be subject to Spanish law.
For any litigious matter or, in general, any discrepancy that may arise in relation to the obligations of each party derived from this contract or in the interpretation, fulfilment, non-fulfilment and execution of any stipulations of the same, if not resolved by mutual agreement, the parties submit, with express exclusion of jurisdiction, to the Courts and Tribunals of Seville.
TWENTY SEVENTH. – FINAL CLAUSE
By their execution, the parties have agreed to all the terms and conditions of this Contract effective as of the last date of signature, and each signatory declares that it has full authority to enter into this Contract and to bind its counterpart in all the terms and conditions hereof.
TWENTY-FIRST – MISCELLANEOUS
21.1 Marketing. The CLIENT agrees that BANZZU may refer to the CLIENT by its name and trademark in BANZZU’s marketing materials and website. CLIENT acknowledges and agrees that BANZZU does not certify or endorse, and is under no obligation to certify or endorse, any of CLIENT’s products, services or content.
21.3 Export. The CUSTOMER agrees not to export, re-export or transfer, directly or indirectly, any technical data acquired from BANZZU, or any products using such data, in violation of export laws or regulations.
21.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on any one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.
21.5 Remedies. CUSTOMER acknowledges that the Services contain valuable trade secrets and proprietary information of BANZZU, and that any actual or threatened breach by CUSTOMER of its obligations with respect to BANZZU’s Intellectual Property Rights will constitute immediate and irreparable harm to BANZZU for which monetary damages would be an inadequate remedy. In such a case, BANZZU shall be entitled to seek immediate injunctive relief without the necessity of posting a bond.
21.6 No assignment. Customer may not assign its rights or delegate any of its obligations hereunder without the express prior written consent of BANZZU. Any assignment by Customer without the prior written consent of BANZZU shall be null and void. BANZZU may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s successors and permitted assigns.
21.7 Notices. In cases where BANZZU requires you to provide an e-mail address, the CUSTOMER is responsible for providing BANZZU with your most recent e-mail address. In the event that the last email address you have provided to BANZZU is invalid, or for any reason is not capable of delivering to you the notices required/permitted by the Agreement, BANZZU’s dispatch of the email containing such notice shall nonetheless constitute effective notice. You may give notice to BANZZU at the following email address: support@banzzu.com. Notice shall be deemed to have been duly given on the first business day following the successful transmission of the e-mail to BANZZU.
21.8 Entire Agreement. This Agreement, any applicable Service Order, our Acceptable Use Policy, Privacy Policy, Data Protection Addendum and, if applicable, our API Terms of Use constitute the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersede and merge all prior discussions between the parties with respect to such subject matter. No modification or amendment to this Agreement, or any waiver of any right under this Agreement, shall be effective unless made in writing and signed by an authorized signatory of the CLIENT and BANZZU.
21.9 Questions, Complaints and Claims. If you have any questions, complaints or claims regarding the Services, please contact us at support@banzzu.com. We will do our best to address your concerns.
Version updated as of: 27 July 2021
