Terms of Service
1. Mygocu
1.1 This digital platform (the "Platform") is the property of MYGOCU S.L. ("Mygocu" or "we"), a company legally constituted under Spanish law, having the corporate address at Juan Hurtado de Mendoza Street, 17, Chamartin 28036, Madrid, Spain, Spanish tax identification number (N.I.F.) B19906858 and registered in the Madrid Mercantile Register (Registro Mercantil) under Folio IRUS:1000426088170, Page M-828366 and 1 Inscription.
2. The Services
2.1 Through the Platform we provide Planners -as defined below- with different services offered as Software as a Services such as customer relationship management (CRM), sales network through the "share experience" function, real-time control of bookings, control of payments, commercial email sending function, use of the Platform as an organizational tool, and/or any other service available from time to time in the Platform related to travel group bookings (the "Services"). The Services may vary depending on your subscription plan.
2.2 We provide the Services to our registered paid subscribers, which are called "Planners". We may also offer certain limited Services to registered unpaid Planners. Both paid Planners and free Planners will be jointly referred to in these Terms of Service as "Planners" or "you".
2.3 Planners shall be of legal age (+18 years old in Spain).
3. Acceptance
3.1 The access, registration and/or any other use of the Platform by Planners might be subject to authorization as it might not accessible to the general public.
3.2 Planners acknowledge and agree that they have read and understood these Terms of Service, whose content is the whole agreement between Planners and Mygocu.
3.3 By using the Platform, Planners expressly acknowledge and agree to be bound by these Terms of Service as well as to other applicable legal terms and policies of the Platform (all together, the "Platform Policies"). Furthermore, Planners acknowledge and agree that the Platform does not breach and will not be used to breach any applicable law and/or regulation.
4. Modification
4.1 Mygocu reserves the right to modify these Terms of Service without prior notice to Planners. In such a case, these modifications will not apply retroactively except if they are in favor of Planners.
5. Account registration
5.1 The use of the Platform requires prior account registration by Planners (the "Planner Account").
5.2 Therefore, Planners shall:
5.2.1 provide the requested registration information that is current and accurate;
5.2.2 choose a password and maintain its confidentiality, selecting one that is not easily decipherable, and preventing its distribution to third parties; and
5.2.3 keep all data provided to the Platform updated and notify Mygocu of any changes.
5.3 Each Planner Account is only to be used by an individual Planner and, therefore, they are not transferable. Notwithstanding this, the relevant subscription plan may allow Planners to designate further authorized users to use the Platform in addition to the Planner (the "Authorized Users"). Generally, Authorized Users will be employees or collaborators of the Planner.
5.4 Authorized Users are compelled to accept these Terms of Service that shall apply mutatis mutandis to Authorized Users. Therefore, Planners expressly acknowledge and agree to be bound by these Terms of Service as well as to other applicable Platform Policies.
5.5 Planners may delete their Planner Account at any moment by sending us a written request. In such a case, we may delete all the information related to the Planner Account. We will not bear any liability for that deletion and/or loss of information.
6. Use of the Platform
6.1 Planners agree to use the Platform in accordance with the law, morality, generally accepted good customs, public order, and the existing provisions of these Terms of Service. In particular, but without limitation, Planners agree not to use it for illegal purposes, those contrary to the provisions of these Terms of Service, to harm the rights and interests of Mygocu or third-party purposes and/or in any way damage, disable, overburden, or impair the Platform or prevent normal use. In particular, Planners agree not to exploit, directly or indirectly, the Platform, except if it expressly agreed on the Terms of Service.
6.2 At any moment, and without previous notice, Mygocu reserves the right to disable identification codes or Planners data access, including access to Planners' Account, if, in our view, Planners have, or in case of reasonable doubt, breached any provision of these Terms of Service.
7. Planners
7.1 Planners may use the Platform to offer their own products/services (usually related to group travel) to third parties such as other agencies, companies, associations, other entities, their employees, or end users.
7.2 Planners may also use the Platform as an organizational tool without necessarily acquiring travel products and/or services.
7.3 Mygocu reserves the right to require Planners to provide all documentation that certifies they have all the licenses, permissions, authorizations, insurance coverages, and other requirements demanded by the applicable regulations to carry out their activity.
8. License
8.1 Mygocu grants Planners a non-exclusive, non-transferable, limited license to access and use the Platform for the term and conditions set out in these Terms of Service.
8.2 Planners shall only use the Platform for the purposes of their ordinary business. These Terms of Service shall not be deemed a distribution or reselling license. The Platform is licensed to Planners and not sold to Planners.
9. Versions
9.1 These Terms of Service permit Planners to use the version of the Platform provided by Mygocu at the time it is made available and those versions available from time to time to the rest of Planners. Former or alternate versions of the Platform are not included and only can be used upon prior written agreement between the parties.
10. Restrictions
10.1 Unauthorized copying of the Platform or any part thereof, is expressly prohibited.
10.2 These Terms of Service only gives Planners some rights to use the Platform and Mygocu reserves all other rights. Planners do not acquire any rights, express or implied, other than those expressly granted in these Terms of Service. Unless applicable law gives Planners more rights despite this limitation, Planners may use the Platform only as expressly permitted in this Terms of Service. In doing so, Planners agree that they shall comply with any technical limitations in the Platform that only allow Planners to use the Platform in certain ways. Planners agree that it shall not, nor shall Planners permit others to:
10.2.1 access to or use of the source code of the Platform;
10.2.2 reverse engineer, decompile, disassemble, modify, adapt or translate the Platform or any component thereof, or create derivative works based on the Platform, except and only to the extent that applicable law expressly permits, despite this limitation or except and only to the extent that Mygocu gives it prior written consent;
10.2.3 remove, obliterate, destroy, minimize, block or modify any logos, trademarks, intellectual property rights, digital watermarks, or other notices of Mygocu that are included in the Services/Platform;
10.2.4 work around any technical limitations in the Platform;
10.2.5 make more copies of the Platform than as allowed in these Terms of Service or allowed by applicable law, despite this limitation;
10.2.6 publish the Platform, including any application programming interfaces included in the Platform, for others to copy; or,
10.2.7 transfer, sublicense, rent, lease, sell, lend or assign the Platform or any part thereof, or any rights or duties under these Terms of Service, to any other person or entity without the prior written consent of Mygocu and such consent may be withheld in the sole discretion of Mygocu.
10.3 Only the Planner/s, including Authorized Users, shall have the right to use the Platform.
11. Verification
11.1 Mygocu may monitor the use of the Platform, for example but not limited to, tracking IP or other device identification numbers. Additionally, Mygocu may request, and Planners are obliged to provide, any documentation to evidence that the use of the Platform is performed according to these Terms of Service. Mygocu may remotely suspend or terminate the use of the Services/Platform if it detects any suspicious use of the Platform until the Planner evidences its correct use.
12. Support
12.1 Mygocu will provide the Support Services to the Planners during the term (the "Support Services"). For the sake of clarity, the definition of Services, unless otherwise set out in these Terms of Service, shall include the Support Services.
12.2 Mygocu may suspend the provision of the Support Services if any amount due to Mygocu but unpaid by Planners is not received by Mygocu within FIFTEEN (15) days following Mygocu demand.
12.3 The parties may agree on additional support and maintenance services related to the Services/Platform provided that such agreement is executed in writing.
12.4 The setup services are not included in the Support Services and must be subscribed in writing to separately.
13. Fees
13.1 These payment terms and conditions shall apply in default of any particular terms agreed in written by and between Mygocu and the Planner (the "Particular Terms").
13.2 Planners shall pay Mygocu the fees set out in the relevant subscription plan or as otherwise agreed in the Particular Terms (the "Fees"). Further payment conditions, including those applicable to payment gateways, are also set out in the relevant subscription plan or in the Particular Terms.
13.3 The document or subscription plan outlining the Fees provided to the Planner shall be valid for fifteen (15) days from the date of delivery to the Planner.
13.4 The Fees will start accruing from the date of formalization of the contract. Payments are non-refundable.
13.5 Generally, Planners shall pay the Fees on a monthly or annual basis by the payment method available and accepted on the Platform.
13.6 Monthly Fees for future billing periods will be charged on the same day as the initial contracting date, while annual Fees shall be paid in advance.
13.7 Planners shall bear all reasonable interests, attorney, bank, collection and any other fees, expenses ,and costs arising from unpaid invoices. Fees of the subscription plans do not include taxes. In the relevant invoices we will include the relevant applicable taxes. Planners shall pay the additional Fees if they exceed the limit of their subscription plan (for example, if they exceed the number of contracted Services and/or Authorized Users).
13.8 In case of non-payment, we will have the right to cancel the subscription plan and/or suspend temporarily the Services/Platform until the outstaning invoice is paid.
13.9 Mygocu may change the Fees due to market conditions, update to the CPI, change of Services and/or to any other circumstance that Mygocu may consider appropriate. Planners, in case of an increase of the Fees, may opt to cancel the subscription plan before the end of the month in course. In any event, Mygocu will inform Planners of such change regarding the Fees.
14. Intellectual and industrial property rights
14.1 Planners acknowledge and agree that the whole rights, tittles and interests of and related to the Platform, its contents and software applications, including any modification, updating and new versions as well as any distinctive sign (registered or not), know-how, intellectual property right, trade secrets, domain name and any other intellectual or industrial property right ("IPR") related to the Platform and/or its related materials are exclusive property of Mygocu or are used by Mygocu under license and with due authorization of the holders of such rights, titles or interests.
14.2 In this sense, Planners acknowledge and agree that they do not acquire any IPR with the mere use of our Platform and of any of its functionalities and, therefore, in no event can this use be deemed as an authorization or license to use them with different purposes to those set forth in these Terms of Service.
14.3 As a result of the above, it is forbidden to reproduce, in whole or in part, modify, transform, copy, distribute, communicate publicly, make available to the public, or perform any other exploitation of the Platform, its contents, applications, materials, designs and look and feel, as well as the source/object code and all those elements configuring its structure and appearance.
14.4 Furthermore, Planners acknowledge and agree that it is forbidden to decompose, reverse engineer, or create derivative works of the software by replicating the functionality and access of Platform.
14.5 The non-compliance of any of these provisions will mean that Mygocu may exercise against the offender or offenders any suitable legal action for the defense of its rights, titles, or interests, including the possibility of claiming damages.
14.6 Mygocu shall be the owner of any, direct or indirect, improvement, benchmarking, know-how or trade secret arising from the execution of these Terms of Service related to the Platform. In particular, Mygocu shall be the owner of any usage information, metrics and/or any other anonymized data obtained in connection with the usage of the Platform.
14.7 Planners may have access to reports or similar information downloaded or obtained through any functionalities available on the Platform from time to time for internal research, analytics and development purposes excluding any commercial use or exploitation rights (the "Report/s"). Mygocu grants the Planners a unique, perpetual, worldwide, non-transferable, royalty-free (without prejudice to the Fees) license to use any Report or similar information downloaded or obtained through any functionalities or download options available on the Platform from time to time for the above-mentioned purposes.
15. Planners' content
15.1 Planners are the only responsible for all content, materials and any other information that they upload into the Platform and otherwise deliver to us and/or make available to the public (the "Planners Content").
15.2 Planners grant Mygocu a non-exclusive, worldwide, perpetual, irrevocable, sublicenciable and royalty-free license to use the Planners Content only in relation to and within the framework of the Services/Platform.
15.3 Mygocu has the right, but not the obligation, to monitor the Planners Content. In this sense, Mygocu may withdraw, remove or temporarily disable Planners Content from the Platform if Mygocu considers that such content infringes or may infringe these Terms of Service and/or third parties rights.
15.4 Planners represent and warrant to Mygocu that their respective Planners Content does not infringe third parties' rights and will hold Mygocu harmless of any sanction and/or claim in relation to the above.
16. Third-party software
16.1 The Platform may incorporate, embed or be bundled with software or components that are owned by third parties, and/or open software and/or free software. Planners commit to comply with any applicable license terms and conditions of such third-party software.
17. Confidentiality
17.1 The Platform and any other information is confidential and proprietary information of Mygocu ("Confidential Information").
17.2 Planners shall hold the Confidential Information in strict confidence during the term and after its termination provided that the Confidential Information is still deemed confidential by Mygocu and/or the Confidential Information has become lawfully of public domain.
17.3 Planners shall take reasonable steps to ensure that its employees, collaborators, and agents, including Authorized Users, also comply with the confidentiality obligations of this clause.
17.4 Planners acknowledge that confidential aspects of the Platform (including but not limited to any source code) are trade secrets of Mygocu, the disclosure of which would cause substantial harm to Mygocu that could not be remedied by the payment of damages alone. Accordingly, Mygocu shall be entitled to preliminary and permanent injunctive and other equitable relief for any breach of this clause.
17.5 Mygocu shall apply mutatis mutandis the same obligations as set out above regarding Planners' confidential information that Mygocu may access during this Agreement.
18. Personal data
18.1 Planners may find information about how we process their personal data on the Privacy Policy of the Platform. Planners are informed that the Platform has adopted security measures to protect their personal information in accordance with the highest security standards.
18.2 If the Services involve Mygocu processing personal data on behalf of Planners, the data protection agreement set out in Annex A shall apply ("DPA").
19. Promotion
19.1 Planners grant Mygocu a right to use Planner's name, trademarks, logos and refer to the Planner as a reference client in customer listings and other marketing documentation and activities relating to Mygocu ("Promotional Materials"), provided that such use is in accordance with good business practice. Planners may revoke this authorization at any moment and Mygocu shall be obliged to withdraw in a reasonable period all the Promotional Materials which publication or availability to the public are under Mygocu's control.
20. Liability
20.1 Due to the unpredictable situations that characterize the Internet and technical environments, Mygocu reserves the right to temporarily suspend the Platform for technical, security, maintenance, or any other justified reason under Mygocu criteria.
20.2 The suspension of the Services/Platform does not give Planners any compensation or indemnification right. However, Mygocu will do its best efforts to limit, when possible, any suspension or interruption of the Services/Platform.
20.3 Furthermore, Mygocu reserves the right to implement and make changes and/or updates within the Services/Platform at any time, with or without prior notification.
20.4 In any event, Planners acknowledge and agree that Mygocu will be able to take certain actions to forbid Planners to access and use the Platform during limited periods of time.
20.5 In this sense, Planners accept that Mygocu will not be responsible, as a result of the above-mentioned actions, for any deletion or availability failure of the Services or functionalities of the Platform.
20.6 Mygocu neither represents nor guarantees that Planners obtain certain results after the utilization of the Platform. Therefore, in no event will Mygocu, its partners, representatives, directors, or employees be responsible for any incidental, fortuitous, particular or consequential damage, including but not limited to any loss of profits, dismissal, admonition, data, business opportunities or software errors, having or not predictable character, and whose result is, directly or indirectly, related to use of the Platform.
20.7 In no event shall Mygocu be responsible for the contents, activities, products and/or services available through electronic links (including deep links), directly or indirectly, related to our Platform. The links included in our Platform, or that can be included in our Platform, cannot be deemed as holding any kind of relationship between Mygocu and the natural person or legal entity holding or managing the linked website/content, and therefore cannot be deemed as any suggestion, invitation or recommendation by Mygocu regarding these websites or their content.
20.8 Mygocu shall not be responsible for any loss or damage that Planners can suffer as a result of the inappropriate use of the Platform or as a result of Planners not complying with these Terms of Service or with the instructions provided by Mygocu through any means of communication.
21. Limitation of liability
21.1 Planners agree that the liability of Mygocu arising out of any claim in any way connected with the Services/Platform will not exceed the total amount Planner has paid for the Platform pursuant to the relevant subscriber plan within the THREE (3) MONTH period before the date the claim arose.
21.2 Planners further agree that Mygocu is not and will not be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including without limitation, attorney fees) relating to these Terms of Service. These disclaimers apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, whether those damages are foreseeable and whether Mygocu has been advised of the possibility of those damages. These disclaimers are not applicable to the indemnification obligation set forth in section below.
22. Warranties
22.1 In no event shall the Services be deemed as a financial, revenue maker, marketing, conversion maker, economic, business, or technical advice, or as a proof of the above. Final decision in such matters, and in any other matter related to the business of the Planner or to the Planner's compliance with law shall, in all cases, solely rely on the Planner and, if applicable on its advisors on these matters.
22.2 Mygocu warranties in these Terms of Service are exclusive and are in lieu of all other warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose.
22.3 Mygocu does not warrant: (i) that the Platform will meet other than as standard requirements or those specified by Mygocu in writing; (ii) that the Platform will operate in combination with software not standard or not specified by Mygocu from time to time; and (iii) other than as stated above, that the operation of the Platform will be uninterrupted or error-free or that the Platform will protect against all possible security threats, internet threats or other threats or interruptions.
22.4 No oral or written information or advice given by Mygocu, its dealers, distributors or agents, or employees shall create a warranty or in any way increase the scope of the warranties given in this clause, and Planners may not rely on any such information or advice.
22.5 Mygocu shall not be liable for the violation of intellectual/industrial property rights, or any other third-party rights is the result of a change Planners made to the Platform without Mygocu prior express consent. Mygocu shall not be liable when Planners have not used the Platform in accordance with the technical documentation delivered or the instructions given by Mygocu. Mygocu shall not be liable of Planners use or attempts to use the Platform in a computer operating environment other than as specified by Mygocu, which is incompatible with the Platform, or due to using programs or applications other than those used by Planners and specified by Mygocu. Mygocu shall not be liable when the Platform's non-compliance with the technical specifications and functionalities is due to improper or negligent use by any person not linked to either party.
22.6 Whether a Planner is an Agency Planner, for all intents and purposes, the Agency Planner represents and warrants to Mygocu that it is and will be empowered to carry out its activity and use the Platform for such purposes and, in any case, releases Mygocu from any liability arising from a breach of the foregoing. Should the Agency Planner, for any reason, fail to comply with the necessary requirements to carry out its activity, whether initially or subsequently, it must refrain from acquiring using the Platform as an Agency Planner.
23. Indemnity
23.1 Mygocu shall defend, indemnify and hold harmless Planners from and against any damage or costs (including reasonable attorneys' fees) in connection with claims, demands, suits, or proceedings arising out of or relating to (i) any actual or alleged infringement of any intellectual/industrial property rights of a third-party by the Platform; (c) the failure of Mygocu to protect Planners confidential information or personal data as required under these Terms of Service; (d) any breach of Mygocu representations or warranties in these Terms of Service; or (e) any fraud or willful misconduct by Mygocu in connection with the performance of these Terms of Service.
23.2 Planners shall defend, indemnify and hold harmless Mygocu from and against any damage or costs (including reasonable attorneys' fees) in connection with claims, demands, suits, or proceedings arising out of or relating to (i) any breach of Planner representations or warranties in these Terms of Service; (ii) any Planner action or omission performed through the Platform; (iii) any advertising campaign, including email campaigns, carried out through or using the Platform; (iv) any Planner Content; or (e) any fraud or willful misconduct by Planner in connection with the performance of these Terms of Service.
24. Term
24.1 The term of the Services is indefinite as long as Planners pay the corresponding Fees from time to time and/or the free Planners access or use the Platform.
24.2 In any event, the term and renewals of the subscription plan will be set out in the relevant subscription plan. Unless otherwise agreed in writing, the subscription plans shall automatically be renewed for the same period (i.e., generally monthly or annual renewals).
24.3 Each party may terminate the Services, the relevant subscription plan, or any collaborative agreement at any time upon delivery of thirty (30) days prior written notice to the other party by email.
24.4 Except as otherwise set forth in the subscription plan, cancellation does not give Planners a refund of any prepaid or unused Fees.
25. Termination
25.1 These Terms of Service, the Services, the subscription plan and any other service hereunder automatically terminate if Planner breaches any provision of these Terms of Service, including but not limited to the failure to pay in full the Fees when due or infringing the licensing conditions.
25.2 All rights and obligations in these Terms of Service will cease to apply and be extinguished on termination on any grounds, except those rights and obligations that, according to the nature or terms of these Terms of Service, shall survive the termination such as, for illustrative purposes only and not limited to, outstanding payments, intellectual property, or confidentiality.
25.3 Upon termination, Planners shall cease using the Platform and delete the Platform from its devices, if applicable. Termination shall not limit Mygocu from pursuing other remedies available to it, including injunctive relief. Besides, Mygocu reserves the right to monitor and suspend the Services/Platform as set out in other sections of these Terms of Service.
26. Force Majeure
26.1 Any possible delay or failure to execute these Terms of Service by Mygocu shall not be considered as a breach thereof and will be excused to the extent that it has been caused by any factors outside of reasonable control of Mygocu, including, acts of God, power outages, natural disasters, airspace closures and restrictions of the public authority, bad weather, pandemic, strikes, public disturbances or threats thereof and war or threat of war.
27. Assignment
27.1 No party will have the right to assign the rights and obligations arising under these Terms of Service without the other party's express, prior and written consent. Notwithstanding this, Mygocu may assign these Terms of Service to any third-party dedicated in the future to the commercialization of the Platform and/or provision of the Services.
28. Independence
28.1 Nothing in these Terms of Service shall be deemed to create an agency relationship or the relationship of employer and employee, master and servant, franchisor and franchisee or sponsorship between them. It is understood that the relationship between the parties shall be that of independent contractors.
29. Notices
29.1 For any question related with the Services/Platform and of these Terms of Service, Planners may contact directly with us by email at infoⓐmygocu.com and/or by written request addressed to our offices located in: Calle de Juan Hurtado de Mendoza, 17, Chamartin, 28036 Madrid. Besides, any notice to be given to Planners shall be deemed valid if it is carried out to the addresses and emails specified in the relevant Planner Account.
30. Interpretation rules
30.1 The headings used in these Terms of Service are for reference purposes only and shall not be deemed to affect its interpretation.
30.2 If conflict arises between the clauses in these Terms of Service and the content of its Annexes or a complementary document, the terms, spirit and object of the clauses of these Terms of Service shall prevail, unless the contrary is expressly set out.
30.3 The illegality, invalidity or nullity of any of the clauses of these Terms of Service shall not affect the validity of its other provisions, provided, always, the parties' rights and obligations deriving from these Terms of Service are not affected in an essential manner. "Essential" is understood as any situation that seriously prejudices the interests of any of the parties, or which affects the scope of these Terms of Service. Such clauses are to be replaced or integrated into others that, in accordance with law, correspond to the objectives of the substituted clauses.
30.4 These Terms of Service constitutes the entire agreement of the parties on the date it is entered into, regarding the matters set out in these Terms of Service, and substitute and derogate all other previous agreements in relation to its object. All annexes form an integral part of these Terms of Service and, without prejudice to that provided above, shall have the same validity and effect as if they were incorporated into the text of these Terms of Service.
30.5 No waiver by the parties of any of the rights under these Terms of Service or derived from its breach shall be deemed to exist unless the waiver is made expressly and in writing.
30.6 If any party waives any of their rights under these Terms of Service or any breach by the other party pursuant to the previous paragraph, this waiver shall not be understood as a waiver of any other right under these Terms of Service or any other breach by the other party, even where it may be similar to the waived event.
31. Governing law
31.1 The interpretation and/or enforceability of these Terms of Service shall be governed by the Laws of Spain.
32. Jurisdiction
32.1 The parties irrevocably agree that the courts of Madrid (Spain) shall have exclusive jurisdiction to settle any claim, dispute or issue (including non-contractual claims) which may arise out of or in connection with these Terms of Service, the Platform and/or the Services.
32.2 However, before initiating any legal action, the parties will try to solve the dispute amicably.
Data Processing Agreement ("DPA")
Annex A
Data Processing Agreement ("DPA")
1. Definitions
1.1 The terms used in this DPA, such as "personal data", "controller", "processor" and "data subjects", have the same meaning as in the 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 on the free movement of such data, and repealing Directive 95/46/EC ("GDPR").
1.2 "Controller" means Planner.
1.3 "Processor" means Mygocu.
1.4 "Subprocessor" means any other processor designated and used by Processor to process personal data on behalf of the Controller in relation to the Services.
1.5 Whether Planner acts as processor of a third party controller, this DPA shall apply mutatis mutandis.
1.6 Any other defined term shall have the meaning set out in the Terms of Service.
2. Object.
2.1 This DPA sets out the terms and conditions of such personal data processing according to article 28 GDPR. In particular, the nature and purposes of the processing, the type of personal data and the categories of data subjects are as follows:
2.1.1 Nature and purposes of the processing: The processing of personal data is necessary for the provision of the Services.
2.1.2 Type of personal data: The personal data processed may include, among others: name and surname, ID number, postal address, email address, telephone number, bank details and any other personal data that may be necessary for the provision of the Services.
2.1.3 Categories of data subjects: The personal data processed may refer to the following categories of data subjects: customers, potential customers, employees, collaborators and any other data subjects whose personal data may be necessary for the provision of the Services.
3. Duration.
3.1 This DPA shall remain in force for as long as the Processor processes personal data on behalf of the Controller.
4. Obligations of the Processor.
4.1 The Processor shall process personal data only on documented instructions from the Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Union or Member State law to which the Processor is subject; in such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
4.2 The Processor undertakes to:
4.2.1 process personal data only on documented instructions from the Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by Union or Member State law to which the Processor is subject;
4.2.2 ensure that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
4.2.3 if applicable, keep, where appropriate, a documented record of all categories of processing activities carried out on behalf of the Controller within the framework of this DPA;
4.2.4 not to disclose personal data to third parties, except with the express and written authorization of the Controller in legally permissible instances;
4.2.5 guarantee that the persons authorized to process personal data have undertaken to respect confidentiality in terms equivalent to those established in this DPA;
4.2.6 adopt all appropriate technical and organisational measures in order to ensure a level of security appropriate to the risks to which personal data may be subjected, in accordance with the provisions of Article 32 GDPR;
4.2.7 respect the conditions indicated below in relation to subcontracting;
4.2.8 assist the Controller by appropriate technical and organisational measures –considering the nature of the processing– insofar as this is possible, so that it can fulfil its obligation to respond to requests for exercising the data subject's rights laid down in Chapter III of the GDPR;
4.2.9 collaborate, cooperate and actively help the Controller in fulfilling the obligations established in Article 32 (Security of processing), Article 33 (Notification of a personal data breach to the supervisory authority), Article 34 (Communication of a personal data breach to the data subject), Article 35 (Data protection impact assessment) and Article 36 (Prior consultation) of the GDPR, considering the nature of the processing and the information available to the Processor;
4.2.10 at the choice of the Controller, delete or return all personal data after the end of the provision of Services and delete existing copies, unless Union or Member State law requires the storage of the personal data;
4.2.11 make available to the Controller all the information necessary to demonstrate compliance with the obligations laid down in this DPA, as well as to allow for and contribute to audits, including inspections, conducted by the Controller, this all being subject to the signing of the corresponding confidentiality agreement. The Processor will also immediately inform the Controller if, in its opinion, an instruction regarding the right to audit violates the provisions of the GDPR, or any applicable Spanish regulations;
4.2.12 guarantee the necessary training in the protection of personal data of persons authorised to process personal data; and
4.2.13 designate, when appropriate, a data protection officer.
5. Transfers.
5.1 Processor shall not transfer personal data outside the European Economic Area ("EEA"), without the written and express consent of the Controller, unless the exceptions provided in the GDPR apply. In such exceptional case, Processor shall immediately inform the Controller of that legal requirement before making such transfer, unless this is not allowed for important reasons of public interest.
5.2 Notwithstanding the above, Processor may use global IT standardized providers located outside the EEA for the normal operation of the Processor. Furthermore, Controller acknowledges and agrees the transfers to those additional subcontractors set out below.
6. Anonymization.
6.1 If the Processor sees fit, it may anonymize the personal data (i.e., edit the data in such a manner that the data subject is no longer directly or indirectly identifiable). Anonymous data will not qualify as personal data falling under the scope of this DPA. The parties agree that the Processor may further process such anonymous data without limitations for its internal business, services improvement and benchmarking.
7. Subcontracting.
7.1 The subcontracting is prohibited unless the Controller has granted its prior and written authorisation, without prejudice to the subcontracting of auxiliary and standardised services for the normal operation of the Processor, such as global IT standardized providers and those subcontractors needed for performing the Services.
7.2 If a subcontracting is performed under the authorization of the Controller, the subcontractor shall also be deemed processor under the same terms as the Processor in this DPA. In this sense, the Processor undertakes to execute a confidentiality agreement and a data processing agreement with the subcontracted third-party, by which the subcontractor is obliged to comply with the obligations of this DPA, as processor, as well as to follow the Controller's instructions regarding the processing of personal data.
7.3 In any case, the Processor shall be liable against the Controller for the actions and omissions of the subcontractor regarding data protection regulations compliance, except regarding global IT standardized providers since their performance exceeds Processor's reasonable control. Once said agreement has been executed with the subcontractor, the Processor is obliged to provide the Controller, at the request of the latter, a copy of it in order to prove compliance with the provisions herein.
8. Representations and warranties.
8.1 The Controller represents and warrants that the Processor has adopted the necessary mechanisms provided in the GDPR to preserve the confidentiality, security and integrity of personal data, considering the state of the art and the cost of its application in respect of the related risks and the nature of the personal data.
8.2 The Processor represents and warrants to the Controller that it possesses the requisite specialised knowledge, reliable character and resources to implement technical and organisational measures that meet the requirements of the GDPR, including the security of processing, all being necessary to comply with the obligations of this DPA in relation to personal data.
9. Liability.
9.1 Each of the parties empowers the other party to pass on any costs –including all kinds of compensation, sanctions and expenses, derived from the claims of the persons concerned– whether due to negligence and/or lack of confidentiality, improper use and/or processing of the personal data and expressly including any amounts derived from the sanctions the corresponding competent authority (for example, the Spanish Data Protection Agency), may eventually impose for a breach or lack of compliance with the applicable regulations, provided that such costs are a consequence of a breach attributable to the other party.
9.2 Furthermore, each of the parties shall communicate to the other party any claims that it receives in this regard, so that the latter may obtain legal representation at its own expense. The party to which the non-compliance is attributable is required to act at all times in coordination with the other party and to preserve the image of the latter.