Service Terms and conditions
General conditions governing the provision of the services by Spotlite
The purpose of this document is to set out the general conditions that shall apply to each and every service carried out by AETHRA, S.A. (hereinafter, the “Spotlite” or “Supplier” ). Consequently, these general conditions (hereinafter, the “General Conditions” ) shall govern each and every contractual relationship that may be entered into at any given time by and between Spotlite and the Customer, whether this relationship is established through an order form, proposal, or any other format.
These General Conditions, together with the specific conditions set out in the corresponding order form shall be considered jointly as a single services contract. Those additional or contradictory clauses and conditions of the Customer which may appear on any of its documents shall not be applicable, and by accepting these General Conditions the Customer waives application of any other additional or contradictory clause or condition, which under no circumstances can be considered as an integral part of the contract relationship, even when the Spotlite has not expressly rejected them. No treatment or previous practice in the sector shall serve to amend, supplement or explain any of the terms used in these General Conditions, the order form or the contract.
The parties hereby agree that these General Conditions shall be understood as incorporated and, therefore, shall be fully applicable to each and every one of the corresponding order forms or contracts that may be formalized by and between the Customer and Spotlite. Consequently, it shall suffice for the Customer to accept these General Conditions once for said conditions to be applicable to all legal-contractual relationship which, at any given time and specifically, are formalized by and between the Customer and Spotlite. In the event of any opposition or discrepancy between the General Conditions and what is set out in the remaining documentation of a contractual nature (whether the order form, contract or any other), the provisions set out in these General Conditions shall take priority. The foregoing shall be understood unless said contractual documentation makes express reference to the prevalence of the provisions of the remaining contractual documentation (order form, contract or any others) or to the amendment, repeal or non-application to the contractual relationship in particular of any point set out in these General Conditions.
In the context of the services provided by Spotlite, including the deliverables or work products generated, it is explicitly acknowledged that the acceptance of these services by the Customer need not be explicitly expressed to be understood as accepted. This is due to the inherent nature of these services, which not only depend on the Provider's efforts but also on the capabilities of the platform and the accuracy of the information provided by the Customer.
The services provided, such as the soil and structure movement analysis are influenced by a multitude of factors, including but not limited to satellite data accuracy, environmental conditions, and the quality of information input by the Customer. Given the complexity of these factors, Spotlite and the Customer recognize that the determination of satisfactory service performance cannot rely on explicit acceptance. Both parties understand that the effectiveness of the services relies on a collaborative approach. The Provider will diligently employ its expertise to deliver accurate analyses and insights based on the available data. However, the Customer's active involvement in providing accurate and comprehensive information is equally critical for ensuring the reliability and relevance of the results.
Spotlite platform enables continuous monitoring and early risk detection. This early warning system empowers the Customer with valuable insights to implement timely preventive and mitigative measures. As such, it is recognized that the value of the services is enhanced by the ongoing partnership between Spotlite and the Customer in actively addressing infrastructure risks. By engaging in the services provided by Spotlite and utilizing the Spotlite platform, both parties signify their understanding and agreement to the collaborative nature of service acceptance as described above.
Payment for the services provided by the Supplier shall be carried out in accordance with the specific system established on each order form or proposal with regard to prices, payment method and expenses occasioned. In the absence of any express consideration shown on the order sheet or contract, payment shall be made by bank transfer within a deadline of thirty (30) days from the date of receiving the invoice.
Payment of the price shall be made to the bank account designated by the Supplier. Payments shall be made in the currency of the country where the paying the Supplier is based.
Once payment for the services has been made by the Customer to the Supplier, all amounts paid are non-refundable. The Customer acknowledges and agrees that no refunds shall be provided for any payments made, regardless of the circumstances, unless otherwise expressly agreed upon in writing by both parties. This no refund policy applies to all services rendered by the Supplier, regardless of the outcome or result of said services.
The overall term or period for performance of the service shall be established on the corresponding order form or contract, taking into consideration the nature of the services to be provided in another concurrent circumstance, and pursuant to any partial deadlines that may be established. In any case, and unless specified otherwise on the corresponding order form or contract, the term of the service shall not exceed one (1) year.
Furthermore, the Supplier may modify the deadline for performance of the service, as well as instruct the stoppage of this, and in this event, it shall notify the Customer of the estimated time of said stoppage. In these cases, the Customer and the Supplier shall jointly arrange a new performance deadline and shall mutually agree the consequences arising from the stoppage.
Once the service has terminated, the contractual relationship shall be lawfully concluded, and the Supplier shall cease to provide the service.
The termination of the service through fulfillment of the agreed period shall not create the right to receive any amount of compensation whatsoever for the Customer, and to which the Customer hereby waive, irrespective of the right it may have.
The Supplier shall employ the material and human resources with the appropriate and necessary qualifications for the provision of the service. Furthermore, the Supplier hereby undertakes to perform and to provide the services in accordance with the level of quality concordant with the standards of the sector in force at the time of providing the service.
The Supplier shall obtain all permits, licenses and authorizations required to perform the activity at its own cost, and in particular all those required for the proper performance of the services.
The Supplier is obliged to inform the Customer of any circumstances that could affect the provision of the service as soon as the former becomes aware of this.
The Supplier is hereby obliged to comply with all applicable labor and Social Security requirements. The contractual relationship between the Supplier and the Client shall be one of a strictly mercantile nature. Consequently, under no circumstances shall the Supplier's personnel (and, where appropriate, of the subcontractor) that are materially responsible for carrying out the contracted services be considered as having any kind of employment relationship with the Client.
The Supplier shall not assume any responsibility for errors, inaccuracies, failures, or interruptions of the system that may arise as a direct or indirect result of the hosting services (“Hosting Services” ) or maintenance services (“Maintenance Services” ) provided under this contract.
Hosting Services: The Hosting Services refer to the storage and access of information contained on the Supplier's servers. These services involve allocating space within the Supplier's servers, located within the European Union or in countries with adequate levels of data protection, to safeguard the Customer's data. The Supplier commits to ensuring the availability and continuous access to the stored information during the contract's duration.
Maintenance Services: The Maintenance Services pertain to maintenance activities, both preventive and corrective, necessary to ensure the optimal functioning of the Hosting Services and to adapt them to changing circumstances or legal requirements. These services encompass tasks such as maintaining performance and updating tools used in the systems, particularly those related to the same operating system.
Under this clause, the Supplier shall not be liable for any loss, damage, inconvenience, harm, or expenses incurred by the Customer as a result of errors, inaccuracies, failures, or interruptions of the system that may arise from the Hosting Services or Maintenance Services provided by the Supplier. The Customer acknowledges and agrees that any impact on their system or data resulting from these services shall not be attributed to the Supplier, and the use of the services is at the Customer's own risk.
The Customer understands and agrees that the services mentioned herein, including the Hosting Services and Maintenance Services, are essential components of the operation and functioning of the digital platform. Therefore, the Customer accepts that the limitations of liability established in this clause are reasonable and necessary for the proper development and provision of the services.
While it is our intention to make the service available whenever possible, there will be occasions when the service may be interrupted due to maintenance or scheduled updates, emergency repairs, unplanned outages, telecommunications or equipment failures. We will always make the necessary efforts to secure the content; however, we encourage you to maintain backups of your content. In other words, we do not offer a backup service, and the client agrees not to rely on our service for storage or backup of their content. We have an external verification that assesses the security of the platform to prevent it from being hacked; nevertheless, we cannot be held responsible for any damages if it occurs. We will not be liable for any modification, suspension, or discontinuation of services or any loss of data or content. The client also acknowledges that the Internet is subject to security breaches, and the presentation of content or information may not be secure.
Given the types of services we offer, which are limited to data provision, we are not responsible for any on-site maintenance actions. Likewise, we are not liable for any accidents or damages resulting from any critical failure in any case or analyzed area.
Customer commits to indemnify, defend, and hold Spotlite harmless from any and all costs, expenses, damages, liabilities, losses, and judgments, including attorneys’ fees and legal expenses (collectively “Losses“) and threatened Losses arising from, in connection with, or based on allegations of, any of the following: (i) Customer’s breach of its obligations under these General Conditions; (ii) claims, fines, or penalties arising out of Customer's failure to comply with any laws or regulations; (iii) claims of infringement of any patent, trade secret, copyright, or other intellectual property or proprietary rights related to Spotlite; and (iv) any damage, cost, expense, or loss suffered by Spotlite as a result of the deliberate misuse, negligence, or carelessness on the part of the Customer in utilizing the Spotlite’s platform.
Spotlite commits to indemnify, defend, and hold Customer harmless from any and all costs, expenses, damages, liabilities, losses, and judgments, arising from, in connection with, or based on allegations of, any of the following: (i) Spotlite’s breach of its obligations under these General Conditions; (ii) claims, fines, or penalties arising out of Spotlite's failure to comply with any laws or regulations; and (iii) claims of infringement of any patent, trade secret, copyright, or other intellectual property or proprietary rights, alleged to have occurred in connection with the services or any deliverables and arising out of gross negligence or willful misconduct of Spotlite;
Except for the indemnification obligations above, the liability for Spotlite under this Agreement shall be limited to the total amount of fees paid by CUSTOMER to Spotlite, and in no event shall Spotlite be liable to Customer for any indirect, special, incidental, punitive, and/or consequential damages. Notwithstanding any other provision in this General Conditions, nothing in this document will operate to exclude or restrict Spotlite’s liability to Customer: (1) For its fraud or fraudulent misrepresentation, (2) For willful misconduct or gross negligence. Parties acknowledge that the limitation or exclusion of liability shall not apply to any matter with respect to liability that can't be limited or excluded under the applicable law, as described below. The provisions of this Section shall survive the expiration or earlier termination of the General Conditions.
Neither party shall be liable for any breach of their obligations as a consequence of force majeure. “Case of force-majeure” shall refer to any causes that cannot be foreseen, or even if they could be foreseen are inevitable, and the result of which is breach of any of their obligations.
Both parties hereby undertake to immediately notify the other party, as soon as they become aware of the existence of a case of force majeure. Said communication shall contain the details of the circumstances that gave rise to said case.
If the breach due to the case of force majeure continues for more than one (1) month the party not in breach shall be entitled to terminate the contractual relationship In advance.
The parties hereby agree to treat the existence, object and content of the contractual relationship as confidential, along with the information that each party may reveal through any means to the other party as a consequence of the contractual relationship. The parties are hereby obliged not to disclose this information to third parties and to use it exclusively for the purposes of said relationship, except to the extent to which disclosure is necessary for the purpose of complying with legal, accounting or regulatory requirements or judicial or administrative decisions.
The obligations of each party under this General Conditions shall not apply to any information that:
- a) Is already known to the receiving party or is in the public domain when disclosed;
- b) Becomes public knowledge after disclosure by the disclosing party without any action by either party;
- c) Is made available to the receiving party by third parties without any disclosure or usage limitations;
- d) Is disclosed with the prior written consent of the disclosing party;
- e) Is independently developed by the receiving party;
- f) Is disclosed by legal requirement, provided that the disclosing party is immediately notified of such action by the receiving party, allowing the disclosing party the opportunity to seek legal remedies to maintain the confidentiality of such information.
The nondisclosure obligation set out in this clause shall remain in force even after termination, on whatsoever grounds, of the contractual relationship, for a period of three (3) years from said termination.
Each party shall be responsible for ensuring that personnel at its service comply with the nondisclosure obligations involved in performance of the contractual relationship and the object of this.
Any disclosure, communication, announcement or dissemination to the communication media with regard to the existence of the contractual relationship, the object of this or the provisions set out therein, must be coordinated and approved beforehand and in writing by both parties. Furthermore, and in the event that the Supplier wishes to refer to the existence of the contractual relationship, the object of this or the provisions set out therein for commercial purposes in its relations with third parties, it must first get express consent from the Client.
Confidential information will not be copied, except to fulfill the obligations of this agreement. Any tangible item containing or related to the confidential information of one party that is in the possession of the other party shall remain the property of the original party and will be promptly returned upon request. Nothing in this contract shall be construed as granting rights, by license or otherwise, to any confidentiality agreement other than as specified in this contract.
The parties record that each party has prior to this General Conditions created, acquired or otherwise obtained rights to its own information of a proprietary nature in relation to the technology, business, products, processes, services or operations of a Party, including any patent, trademark, logo or design, which has been registered or is capable of being registered in any national intellectual property office or association, as well as any copyrightable works, trade secrets and know-how (hereinafter, the “Intellectual Property”). Each party shall for the duration of this General Conditions and thereafter retain the ownership of its own Intellectual Property. Except where a license is expressly granted or where ownership is expressly transferred in writing, a Party shall acquire no right or interest in the Intellectual Property of the other party. Any developments, modifications, improvements or enhancements to a party’s Intellectual Property arising from this General Conditions nor any of the orders or proposal will remain the property of that party. In the event of either party requesting the use of the other party’s Intellectual Property outside the scope of the General Conditions, this will be the subject of a separate agreement.
The Customer agrees not to engage in, allow, or participate directly or indirectly in any reverse engineering activities concerning the products, services, tools, applications, software, or any other components provided by Spotlite under this General Conditions nor under any of its orders or proposals.
Reverse engineering includes, but is not limited to, decompiling, disassembling, modifying, replicating, or attempting to derive the source code, underlying logic, design, or structure of Spotlite's products and services, whether in whole or in part.
Any violation of this clause shall constitute a material breach of the General Conditions and will result in the immediate termination of services by Spotlite, without prejudice to its rights to claim damages as permitted by law.
This prohibition of reverse engineering shall remain in effect during the term of the General Conditions and after its termination.
10.1. SOLE AGREEMENT
These General Conditions and, where appropriate, the corresponding order form or contract represent the sole agreement that exists between the parties with regard to the corresponding services and shall replace any previous verbal or written agreement that may exist between the parties. These General Conditions shall likewise apply to the contractual relationships that exist between the parties prior to acceptance of these by the Customer.
Any covenant or clause set out in these general procurement conditions or on the corresponding order form or contract that is or becomes illegal, invalid or unenforceable shall be excluded from the same and shall be considered as inapplicable with regard to the scope of said illegality, invalidity or unenforceability, but shall not affect or be detrimental to the remaining provisions, which shall remain in full force and effect. The parties hereby agree to negotiate in good faith the replacement of the clause or clauses affected with another (or other) valid clause(s) as close as possible in terms of effect, within the shortest delays and, at any rate, within one month of the date when either party contacts the other to impress the need for such replacement.
10.3. APPLICABLE LAW, INTERPRETATION OF THE CONTRACTUAL RELATIONSHIP AND RULING ON CONFLICTS:
These General Conditions, as well as the relationship that arises from the corresponding contractual documentation, shall be subject to application of the content of the Portuguese Legal System, which shall be the only system applicable to the interpretation of these.
In the case of any discrepancies concerning the enforcement and interpretation of the documentation that shapes the contractual relationship, both parties hereby agree that they shall attempt to solve these discrepancies amicably before submitting them to legal channels. For these purposes, each party shall designate a representative with sufficient powers who shall meet with a representative of the other party for the purpose of solving any differences that have arisen.
For ruling on any controversy that may arise with regard to the contractual relationship and the corresponding services, the parties irrevocably submit to the Courts and TribunaIs of Coimbra, Portugal, with express waiver to any other jurisdictional privilege to which they may be entitled.