For the purposes of these general terms and conditions, "we" and "iF lastmile" shall mean the company DAMIAN VALLEY PARTNERS, S.L.U., and "you" (singular and plural), the "customer" or "customers" shall mean the entrepreneur/s (natural person or legal entity) contracting the services of iF lastmile.
iF lastmile is the trade name of the company. The URL of the iF lastmile website is www.iflastmile.com.
These general terms and conditions govern the general aspects of your legal relationship with iF lastmile (hereinafter, the "General Terms and Conditions"). In the event an agreement is entered into between You and iF lastmile, specific terms and conditions must also be signed in order to regulate the more specific aspects of your legal relationship.
In the event of any discrepancy between the provisions of such specific terms and conditions and these General Terms and Conditions, the provisions of the specific terms and conditions shall apply.
ONE. NATURE AND OBJECT
These General Terms and Conditions do not govern the relationship between iF lastmile and consumers and users, but with commercial companies and/or individual entrepreneurs
The provision of services by iF lastmile to its customers shall consist of services related to the preparation, dispatch, collection, storage and replenishment of products of its customers (i.e., the end customers or consumers of iF lastmile's customers), through the provision of such services by iF lastmile to you or through the appropriate licence for the provision of such services through iF lastmile's software as a service (hereinafter, the "Services"). The detail and level of the Services actually contracted by you from iF lastmile shall be reflected in the specific terms and conditions of the Agreement.
The legal relationship between iF lastmile and its customers is of a commercial nature, in no case may it be considered as an employment relationship and, unless expressly agreed between the parties, it shall not give rise to an agency, partnership or any other relationship similar to the foregoing.
The Agreement between iF lastmile and its customers does not imply exclusivity for either party. Therefore, customers may contract with third parties for the same services that they have contracted with iF lastmile, and iF lastmile may offer such services to any third party with absolute freedom, in relation to all types of goods, whether similar or related in any way to the Services or the products included in the Agreement, including without limitation any goods or products that might be in direct competition with iF lastmile's customers.
TWO. OUTSOURCING BY IF LASTMILE
iF lastmile will use, at its own risk, the material and human resources necessary at all times to guarantee the correct and complete performance of its Services.
iF lastmile may outsource the provision of the Services contracted by you to third parties, but it shall in such case remain liable for all obligations to its customers in relation to the quality of its Services and the performance of the Agreement with you, without prejudice to the provisions of Stipulation Six relating to the limitation of liability.
If a company subcontracted by iF lastmile fails to comply with the agreed delivery time, the compensation that may correspond to the customer shall not exceed the price paid by the latter to said courier company or to iF lastmile, or the coverage that said company has for such events. The delay in any delivery caused by absence (unknown addressee or address), the addressee's unnotified change of address, or the non-payment of postage, substitutes or reimbursements will not be considered as non-compliance.
iF lastmile shall not be liable for late deliveries caused by carrier delays by air, sea or rail.
Any compensation for loss of a parcel shall be borne by the courier company concerned, unless the parcel was undoubtedly lost for reasons attributable to iF lastmile. In such event, the limitation of liability set out in Stipulation Six below shall apply.
THREE. INTELLECTUAL PROPERTY
The provision of the Services that are the subject of the Agreement with you will be carried out, to a large extent, through iF lastmile's proprietary software, Software as a Service.
iF lastmile is the sole owner of this software. The parties acknowledge iF lastmile's intellectual property rights over the entire software development, both the final object and all the documents, diagrams, sketches and other preliminary elements that make up the software.
iF lastmile grants its customers a licence to use the software through which the Services will be provided.
This licence is only a non-exclusive transfer of use, which enables the use of the tool for the mere purposes of the Agreement, which has a duration subject to the term of this Agreement (set out in its specific terms and conditions), as long as neither of the parties decides to terminate it, and which only allows the use and execution of the iF lastmile software online and exclusively through a mobile application and websites, by way of illustration only, www.iflastmile.com and app.ilflastmile.com (the "Websites").
At no time does iF lastmile grant ownership rights over its software, but rather grants the right to use it under the conditions described in this licence, in the understanding that in no case is it authorised for reproduction and public dissemination, transfer, sale, rental or loan, and the customer undertakes not to transfer its partial or total use in any manner, nor to disclose, publish or make it available to other parties in any other way.
Each party shall retain all rights to their respective names, logos, trademarks, databases and any other assets and rights.
The customer authorises iF lastmile, without the right to any compensation whatsoever, to use their logo and the service provided solely and exclusively for the promotion of iF lastmile, and to this end expressly consents to their project being displayed in various media such as its websites, corporate dossiers and printed advertising.
FOUR. IFLASTMILE SOFTWARE AND SERVICE WARRANTY
iF lastmile warrants that the licensed software conforms to the functionalities detailed in the specific terms and conditions of the Agreement. Notwithstanding the foregoing, iF lastmile's Services are provided "as is" and without any guarantee of uninterrupted, error-free operation. iF lastmile does not warrant that the results obtained from the use of the Services or its software will be as expected by you or that they will meet all of your expectations.
Notwithstanding the foregoing, any error or failure of the software, understanding as such the inadequacy of its operation (as previously announced by iF lastmile) caused by material programming errors or by the lack of correspondence between the operation of the software with respect to the functionalities foreseen in the specific terms and conditions of the Agreement, must be communicated by the customer to iF lastmile, including all available information on the failure or error detected. iF lastmile will analyse the error or faults reported by the customer and will take the appropriate action to ensure that the software functions normally. If the errors or faults detected in the software make it definitively impossible for the customer to use the software, iF lastmile undertakes to return to the customer the amounts received as the price of the licence, but no other type of compensation or indemnity for damages will be applicable or demandable by the customer. This refund will only take place if the parties have specified in the specific terms and conditions the isolated price for the licence for temporary use of the iF lastmile software in relation to the price for the rest of the Services.
Likewise, in the event that professional services have been contracted from iF lastmile, iF lastmile warrants that its services will be performed with due care and diligence. iF lastmile assumes the obligation to repeat any work that is not performed in accordance with this warranty, provided that it is brought to its attention within 10 days from the date of acceptance of such work or service.
These are the sole warranties granted by iF lastmile in respect of its Services.
FIVE. TAX, LABOUR AND SOCIAL SECURITY OBLIGATIONS. ANTI-CORRUPTION OBLIGATIONS
The employees of iF lastmile who carry out the provision of the Services shall at all times and in all cases be under the control, direction and disciplinary power of iF lastmile and shall have the professional qualifications and experience necessary to provide the Services.
The parties shall comply with all their tax, labour, social security, administrative and any other obligations that may be required for the development of the activity and, in particular, for the provision of the Services, holding iF lastmile harmless from any claim that may be formulated, demanded or imposed upon it in relation to such compliance.
The Customer represents that it complies with any state, regional or local laws, regulations and principles applicable to the design, manufacture, testing, labelling, sale and transportation of products or services. The customer and its employees shall at all times comply with all regulations in the countries in which they operate including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Anti Bribery Act and other anti-corruption regulations.
SIX. LIMITATION OF LIABILITY
The Customer shall hold harmless iF lastmile, its officers, employees and suppliers, against any claim, including reasonable attorneys' fees, brought by any third party in connection with the Customer's breach of the Agreement and/or any breach of any applicable law. The Customer shall also be liable for any breach of the Agreement by its employees, agents, suppliers or subcontractors, and shall bear the consequences of such breach as its own.
For its part, except in the case of wilful misconduct or gross negligence, iF lastmile shall not be liable for any direct, indirect, incidental, special, consequential or punitive damages, including, without limitation, damages for loss of profits and loss of reputation, use, data or other intangible losses resulting from the use of or inability to use the iF lastmile software. Notwithstanding the foregoing, iF lastmile shall be liable for any damages that its Customers may suffer and for any claims that may be made against them that are caused exclusively by acts or omissions of iF lastmile in the provision of the Services that are the object of the Agreement, and, in any case, up to a maximum of €100,000, and the liabilities arising from the different Services may not be accumulated.
iF lastmile has an insurance policy that covers the risks derived from its activities and operations.
iF lastmile accepts no liability whatsoever for the alleged loss of shipments regarding which delivery to iF lastmile has not been documented by the respective courier company. In other words, in order for iF lastmile to be held liable for the loss of a shipment, there must be proof that such shipment was actually received by iF lastmile.
iF lastmile shall not be liable for any facts or acts deriving from negligent actions of its customers and/or of the end recipients of its products. Neither will iF lastmile be liable for any damage that the nature of the product itself may cause, for hidden defects of the product, nor for any events or situations beyond its control, beyond the causes of force majeure ex Article 1105 of the Civil Code, arising from acts of God, war and/or terrorism, insurrection or popular uprising, such as general or sectoral strikes, labour disputes or any other cause that iF lastmile could not have avoided through the application of reasonable diligence.
When the liability is derived from events or acts occurring during the execution of the collection of the product and its return, if iF lastmile is subrogated in this, in no case may its liability exceed that which must be assumed by the carriers, in any of their categories (land, air or sea), in accordance with the limitations established by regulations and/or by applicable international conventions in force.
The provisions of the Regulations of the Land Transport Act (RLOTT), contained in Royal Decree 1211/1990, of 28 September, will be applicable to auxiliary and complementary transport activities, in everything that does not oppose the provisions of Act 15/2009, of 11 November, on the Agreement of Land Transport of Goods, which establishes, in its Article 57, that compensation for loss or damage shall not exceed, unless different amounts or conditions are agreed, one third of the Public Multiple Income Indicator/day for each kilogram of gross weight of lost or damaged goods. This limitation of liability shall apply to all claims against iF lastmile, irrespective of whether the claim is grounded on contractual or non-contractual liability.
SEVEN. EVENTS OF TERMINATION
The parties may terminate the Agreement immediately, in addition to non-performance not remedied within a maximum period of fifteen (15) business days, for the following reasons:
1. Upon expiry of the term agreed in the specific terms and conditions or of any extensions thereto.
2. Due to the loss/revocation or failure to obtain the licences and/or administrative authorisations that are necessary for the Customer's activity.
3. Because of winding-up and/or declaration of bankruptcy of either of the parties.
Likewise, the parties may terminate the Agreement at any time, without just cause, by giving the other party at least sixty (60) days' written notice prior to the desired date of termination. This notice shall not be mandatory for the Customer in the event that the Customer wishes to terminate the Agreement because it does not agree with a modification of these General Terms and Conditions, in which case it shall notify iF lastmile of its termination for this reason with a notice of at least two (2) business days, expressly stating the modification with which it does not agree.
In any event, the Customer shall pay iF lastmile any amounts owed to iF lastmile up until the date of termination of this Agreement.
Regardless of the cause of termination of the Agreement, the obligations relating to Intellectual Property, Limited Liability and Confidentiality shall remain in force indefinitely.
By reason of the Agreement, each party may become aware of certain information of the other party, defined as confidential information, including but not limited to technical knowledge, methodologies, work plans, products, systems, processes, know-how, products, designs and trade secrets.
Each of the parties undertakes to protect all information received from the other party, of which it becomes aware as a consequence of the Agreement, which refers to technical knowledge, know-how, methodologies, work plans, products or commercial activities and, in general, any data or information, in written, audio-visual or audio format, provided and identified by the other party as "Confidential Information" and, therefore, to keep it secret, regardless of its nature, using the means of protection established in this Agreement and to keep it secret, using the means of protection established in this Agreement and the same means it normally uses to protect and safeguard its own confidential information.
Both parties shall bring to the attention of the other party any suspicion, information or warning that the security of the other party's Confidential Information is or may be compromised in any way. In addition, the parties expressly undertake:
• To keep secret all the Confidential Information disclosed by the other party, belonging to or relating to it and not to disclose it or allow it to be made available to any person, firm or company (except to the extent authorised and permitted under the terms of this Agreement), without the prior written consent of the other party.
• To use the Confidential Information disclosed by the other party, belonging to it or about it, only for the purposes expressly permitted in this Agreement.
• Upon written request of the other party, to return to the other party the Confidential Information disclosed by, belonging to or about the other party (and any copies) or confirm to the other party in writing that it has been destroyed.
However, this duty of confidentiality shall not apply in respect of information which:
• Is in the public domain.
• Was known by either party prior to the date of this Agreement or was obtained by lawful means.
• Was developed independently by either of the parties.
• Was requested by an administrative or judicial authority. In the latter case, iF lastmile must immediately inform its customers of the request received.
Each party shall ensure that all persons associated with it, whether as directors, employees or advisors, comply with the provisions of this clause.
NINE. DATA PROTECTION
The parties acknowledge and agree that the personal data of their employees and contract staff may be processed by the other party for the performance of the contract. Based on the foregoing, they declare that they have the prior assignment of the rights thereto for the indicated processing.
Likewise, the party processing the data undertakes to comply with all the requirements set out in EU Regulation 216/679 on Data Protection, as well as in Organic Law 3/2018 regarding the use and custody of data considered personal, respecting the rights of access, rectification, limitation, erasure, etc. recognised in the applicable laws.
Each party undertakes to process only such personal data as are absolutely necessary for the performance of the tasks entrusted to it. Once the contractual service has been fulfilled, the personal data must be destroyed or returned to the data controller, as well as any medium or documents containing any personal data subject to processing.
Each party undertakes not to disclose, transfer or communicate directly or indirectly any data, information or knowledge to which it may have had access during the contractual relationship. They also undertake to take the necessary measures, both with respect to their employees and to third parties who may have any connection with this agreement, to ensure compliance with the provisions of this clause. In the event that the other party uses the data for another purpose, communicates them or uses them in breach of the stipulations of this agreement, it will also be considered as the Data Controller, and shall be liable for any infringements it may have committed.
For the fulfilment or modification of the provisions of this condition, the parties may exercise their respective rights over the data, by communicating to the postal or electronic addresses known of the other party.
Without prejudice to what is established in the General Terms and Conditions regarding the protection of personal data, given that iF lastmile will act as the Data Controller of its Customers' own customers, the parties shall enter into a Data Controller Agreement, which shall be inseparable from the Service Agreement.
The Customer shall not assign the rights and obligations arising from the Agreement without the prior written consent of iF lastmile. A change of control of the customer shall not be deemed to be an assignment (the term "control" being understood as established in Article 42 of the Code of Commerce).
ELEVEN. MODIFICATION OF THESE GENERAL TERMS AND CONDITIONS
iF lastmile reserves the right, for business reasons, to modify or remove any part of these General Terms and Conditions at any time. In addition, iF lastmile may, at any time, make changes that affect your use of the Services, for legal or regulatory reasons, to prevent fraud and misuse, for security reasons, or to prevent criminal, inappropriate or offensive behaviour.
By continuing to use our Services after we have notified you of such changes or after we have posted the new version of the updated General Terms and Conditions, we will understand that you accept such changes. If you do not agree to such changes, you may terminate the Agreement by giving us the notice set out in Stipulation Seven above.
Any changes to these General Terms and Conditions shall enter into force immediately after the publication of the updated version.
TWELVE. GOVERNING LAW AND JURISDICTION
These General Terms and Conditions and, consequently, the Agreement, shall be subject to the stipulations, terms and conditions contained herein under the principle of contractual autonomy established in Article 1255 of the Civil Code and, where not provided for therein, in the provisions set forth in Articles 1544 et seq. of the Civil Code.
The Agreement shall be interpreted and fulfilled in its own terms and, where not provided for, shall be governed by Spanish laws on the matter, and the obligations and responsibilities of the Parties shall be in accordance therewith.
The parties do hereby submit to the jurisdiction of the Courts and Tribunals of the city of Madrid for any matter relating to the interpretation, fulfilment or execution of the Agreement, expressly waiving any other jurisdiction to which they may be entitled.