Terms and Conditions of Service
[A] General Terms and Conditions
A1.1. The company or individual (“Client”) which signs a purchase order is subject to a binding agreement with Lexatel Technologies S.L. (“Lexatel”), with company number B-63456289, with registered address at Calle Aribau, number 177, 1st floor, 1st door, Barcelona, Spain, main office at Rambla de Catalunya 124, ático, 08008, Barcelona, Spain and duly registered in Barcelona Register of Companies, Volume 36407, Page 18, Sheet B-288.065, 1st Inscription. Please read these Terms and Conditions carefully as by using the products, Services or signing a Purchase Order Client will be deemed to have accepted these Terms and Conditions (“Agreement”).
A1.2. This Agreement is applicable to Client in respect to Lexatel’s services provided to it. In case that Client or any other party has any other kind of commercial relationship with Lexatel, that relationship shall be governed by its relevant conditions. Lexatel reserves the right to update its tariffs and the Agreement. Any amendments and the latest version of the General Terms and Conditions or any of the Services conditions will be available in the Client Resource Center of Lexatel’s website at www.lexatel.com under “Terms and Conditions”.
“General Terms and Conditions”: All terms and conditions which establish the legal framework of the provision of the Services.
“Specific Terms and Conditions”: Those conditions which establish the legal framework of the provision of a specific Service or delivery of a specific product. They complete the General Terms and Conditions and do not constitute a stand-alone contract.
“Agreement”: Terms and conditions included in the General Terms and Conditions, the Purchase Order and the Specific Terms and Conditions which may apply to specific Services agreed with the Client.
“Service(s)”: Services provided by Lexatel as a consequence of the Agreement with the Client.
“Equipment”: Physical IT equipment and components such as routers, switches, servers, telephones, network cables, etc.
“Installation”: The aggregation of equipment and components, installed, configured, deployed and delivered to Client as a working system.
“Client Resource Center (“CRC”)”: A password protected area of Lexatel’s website, where information related to Client’s use of Lexatel’s services is displayed in real-time. This information may include usage data, payment and invoice data, or services delivered on-line.
“Client account”: Elements and resources in Lexatel’s domain which contain, among others, the cumulative history of all transactions of the commercial relationship between Lexatel and Client such as service charges, invoices, payments, discounts, all the services and features made available to the Client, etc.
“Positive balance”: The balance of a Client account is positive when the sum of all payments exceeds the sum of all charges. Corrective entries such as reversals of charges, discounts, refunds, etc. affect the balance of an account.
”Purchase Order”: Document which states the Services and/or products contracted by the Client. The Purchase Order shall be issued pursuant and subject to the General Terms and Conditions and to the Specific Terms and Conditions.
“Client Premise Equipment (“CPE”)”: All equipment installed at Client’s premises which is needed for the provisioning of Lexatel’s services.
“Incidence”: An occurrence where an Equipment or Service malfunctions and as a result its performance is out of line with its agreed functionality.
“Maintenance”: Any work related with maintaining equipment in working order and neutralizing and preventing the negative effects of natural wear and tear.
“Configuration updates”: Any work related with change of configuration of existing Equipment after it has been deployed in production in order to bring its operation in line with the evolving needs of Client.
“Support”: Any work done in response to an incidence report in order to correct the functioning of Equipment or Service.
“Price list”: List of prices for Lexatel products and services, which is available upon request from Lexatel authorized commercial representative.
“Software”: Computer program or programs developed by Lexatel which help to provide service or form part of a service. Such program or programs may be installed locally at Client’s premises or on a remote server.
[A3] Term of the Agreement
A3.1. Initial Duration - This Agreement will come into effect and commence on the date of the signature by Client of the Purchase Order or at the moment Client starts using Lexatel’s products and Services. Certain Services may have a minimum duration period, which will be specified in their Specific Terms and Conditions.
A3.2. Extension of the Agreement – For services with minimum duration specified in the preceding paragraph, the Agreement will be extended automatically for successive periods of 1 year, provided that (i) Client has satisfied all payments to Lexatel, and (ii) no party informs the other of its intention not to renew the Agreement at least 45 days prior the completion of the initial duration or the corresponding extensions of 1 year.
A3.3. Suspensive condition - The validity of the Agreement is subject to the verification by Lexatel of data and documents provided by the Client, the adequacy and compliance of the technical connections, as well as feasibility studies and/or questionnaires necessary for each of the Services.
[A4] Ordering and Delivery
A4.1. Client may order products and services by signing a purchase order or making an order online, where the unit price, quantity and frequency (one-time or recurring) of all charges will be indicated clearly.
A4.2. Sometimes the provision of products and/or services will be conditional on a partial or full prepayment by Client. Late prepayments might affect agreed delivery dates. Lexatel reserves the right to cancel a purchase order if the requested prepayment is not received 45 days after its sign-off. Delivery dates, delivery conditions and availability may be subject to third parties such as Lexatel providers. Lexatel accepts no liability for any delay or unavailability due to a third party involved in the provision of Lexatel’s services if such delay or failure can not be under Lexatel’s control.
A4.3. Products become billable when they have been duly delivered or when Client starts using them.
A4.4. Services become billable when they have been duly activated or when Client starts using them.
[A5] Invoicing and Payments
A5.1. In consideration for the Services, Client shall pay Lexatel the relevant amounts agreed in the Purchases Orders.
A5.2. All services (one-time products and services, flat-fee recurring services and pay-per-use services) are provided on a prepaid basis. At Lexatel’s discretion and under special circumstances Lexatel may offer post-paid billing model to Clients who satisfy the internal risk-management criteria and/or provide security deposits. These criteria may vary and be defined exclusively by Lexatel from time to time.
A5.3. The Services provided by Lexatel are subject to VAT, at the applicable rate according to current tax regulations, and is charged to Client, indicated clearly as a separate concept, in the corresponding invoice.
A5.4. Payments via bank transfer must be net of bank and any third party costs. If Lexatel is charged any fees to receive a bank transfer, these fees will be applied against (and thus decrease the amount of) the transfer received. Final net amount shall be available for the provision of Services and will be appropriately displayed in the Client account.
A5.5. Lexatel accepts payments via bank transfer, on-line credit card payment via the Client Resource Center on Lexatel’s website. If Client wishes to pay in cash, Client may deposit the sum at any bank office (or ATM) indicating Lexatel as beneficiary and giving Lexatel’s bank account number. Under certain circumstances Lexatel may require direct debit as condition for provision of Service.
A5.6. Client will have real-time information on the balance of Client’s account via the Client Resource Center on Lexatel’s website. Client may choose to receive automatic notifications when its account balance approaches a certain level.
A5.7. Bank transfers will be reflected in Client’s account within up to 4 business hours after funds have arrived in Lexatel’s bank account. On-line credit card payments will be reflected immediately after successful on-line transaction.
A5.8. Client is expected to make a prepayment before the actual Service charges. This prepayment will give rise to balance in favor of Client and will be reflected in Client’s account.
A5.9. Charges will be applied on a daily basis against the available prepaid balance in Client’s account. All charges for one-time products and/or services will be applied at the moment these products or services become billable.
A5.10. In case prepaid balance was insufficient for the full payment of the charges at time of their application, service will be suspended, until all charges are paid in full. Next payment will go to cancel partially or fully the outstanding amounts until charges are fully paid.
A5.11. All charges for all services (one-time products and services, flat-fee recurring services and pay-per-use services) will be invoiced on the first day of the next month.
A5.12. Clients using post-paid billing model may dispute charges within 7 days from invoice issue date. The invoice will be considered received once it has been sent to the e-mail provided by Client. It is Client’s responsibility to maintain its email account in good standing and check it regularly.
A5.13. In some cases Client may be asked as a condition for provision of services to pay a security deposit as a guarantee for payment of post-paid services. Lexatel does not owe interest on deposits or prepayments from Clients.
A5.14. In case of post-paid billing, if on the 15th day after the invoice issue date (or if it falls on a bank holiday, the first working day afterwards) the outstanding invoices are not paid in full, Lexatel reserves the right to restrict, bar, discontinue or suspend, totally or partially ALL Services. Lexatel will resume the Services the day after all outstanding invoiced amounts have been paid in full. For reactivation of services Client may be asked to pay a reactivation fee.
A5.15. In case of post-paid billing, if on the 45th day after the bill date (or if it falls on a bank holiday, the first working day afterwards) the outstanding invoices are not paid partly on in full, Lexatel reserves the right to hand over Client’s account information and company details to the debt recovery agencies.
A5.16. Lexatel will return the deposit and/or any positive balance within 45 days of termination of this Agreement, given that all outstanding invoices and fees have been paid in full and once all the amounts due or non-paid by Client have been notified to Lexatel. If after closing its account with Lexatel Client wishes to reopen it, and there is evidence that the account was closed with the intention of temporary recovery of the balance and/or deposits, Lexatel may charge an administrative handling fee related with reopening the account.
A6.1. Client may cancel the Service in writing by sending communication by email, fax or mail in accordance with the relevant procedures described in this Agreement.
A6.2. Certain services may be subject to minimum service duration and their cancellation may give rise to a “cancellation fee”. These fees are stated in the Specific Terms and Conditions for each product or service.
A6.3. Cancellation of recurring services will come into effect 30 days after the date of the communication of the cancellation order.
[A7] Charges and Pricing
A7.1. Client will be responsible for all charges incurred for usage of the Service under Client’s account. If CPE in possession of Client is stolen, damaged or destroyed the Client will be responsible for any charges incurred until Lexatel has been effectively informed about such circumstance. Client shall pay all relevant charges and penalties, if any, for advance cancellation in case of services subject to a minimum term commitment (as described in each case and specific conditions).
A7.2. Lexatel reserves the right to request payment of charges discovered later. Failure to identify and request timely payment of such charges does not constitute a waiver of those charges on part of Lexatel.
A8.1. Lexatel will provide support to Client for incidences which affect the normal performance of Lexatel installed Equipment and Services.
A8.2. Official channels for communication of incidences will be the Client Resource Center located on Lexatel’s website as well as email. Occasionally, Lexatel may manage incidence reports via telephone calls or SMS. In these cases, the information will be introduced in writing in the incidence tracking databases. Client shall receive a notification with incidence identification number via email.
A8.3. Client must appoint an authorized representative, who at the beginning of the commercial relationship will receive access credentials to the Client Resource Center and will be able to report incidences.
A8.4. Lexatel will process incidence reports only:
A8.4.1. from authorized representatives of Client
A8.4.2. via official support channels
A8.4.3. if Client does not have outstanding debt with Lexatel
A8.5. Lexatel will provide support services from Monday to Friday from 9:00 am to 18:00 pm.
A8.6. Lexatel will start processing any incidence report within 4 business hours since its reception.
A8.7. Lexatel will use best effort to resolve incidences as soon as possible, but cannot promise resolution until the causes of the incidence are known and has evaluated the different factors which affect resolution times, namely needed level of effort, needed materials and response times of 3rd party (if necessary).
A8.8. Support services (and in the case of equipment, its partial or full replacement) are free of charge when warranty conditions were fulfilled. Warranty conditions are defined for each product and service in their Specific Terms and Conditions.
A8.9. Support services in cases when warranty conditions were not fulfilled are subject to charges to be borne by Client.
A8.10. In case equipment needs to be shipped for repair and/or replacement and Client chooses so, shipment costs for sending this equipment both from and back to Client’s premises will be borne by Client regardless of whether warranty conditions were fulfilled.
A8.11. In case a Lexatel engineer needs to make an on-site visit to address an incidence and warranty conditions are not fulfilled Client will cover all transportation costs such as air fare, bus fare, road toll, rental of vehicles, gasoline or other travel expenses related with such visit as well as one-time per-visit fee defined in Lexatel’s Price list. If warranty conditions were fulfilled costs for the visit are borne by Lexatel.
A8.12. No incidence reports will entitle Client to refuse payment of any invoice without prejudice to the subsequent resolution of the incidence.
A8.13. Successful resolution of incidences is conditional on Client cooperation with Lexatel’s support teams to the maximum degree possible in order to provide detailed account of the incidence, allow remote access and assist locally. Successful resolution of incidences is conditional on Client’s cooperation and provision of detailed information. The type of information needed depends on the product or service and is described in its Specific Terms and Conditions.
[A9] Modification, Assignment and Suspension of Services
A9.1. Lexatel reserves the right to modify the conditions applicable to any of its particular services as well as prices with a prior notice to the Client 30 days before such amended conditions shall apply. In such case, the Client will be entitled to terminate the Agreement by sending a written notice to Lexatel. In case that the Client does not notify its intention to terminate the Agreement in such term and the Client continues using the Services the amended conditions shall apply.
A9.2. Client acknowledges and agrees that Lexatel reserves the right to discontinue, in a cautionary manner, the provision of Services in its sole discretion without giving rise to compensation to the Client in the event of any breach on part of the Client of this Agreement.
A9.3. The Agreement will be terminated by the general causes of termination of contracts as regulated in the Spanish applicable law and by the provisions of this Agreement.
A9.4. Client accepts that this Agreement and therefore the provision of Services can be terminated totally or partially, by notice in writing in the following cases:
A9.4.1. cessation of activity, loss of authorization for the provision of services due to any cause and/or declaration of bankruptcy by Lexatel which prevents the normal execution of this Agreement.
A9.4.2. illegal activities or activities contrary to good faith and/or public order on part of the Client, as well as use of the Services in conflict with existing legislation or the provisions of this Agreement.
A9.4.3. use of Service for fraudulent purposes.
A9.4.4. force majeure and/or fortuitous event.
A9.4.5. serious breach of any provision of this Agreement.
A9.4.6. mutual agreement of the parties.
A9.4.7. Client’s will, according to the conditions stipulated in section A6.
A9.4.8. any legal and/or technical modification that makes impossible the provision of Services as initially contracted.
A9.5. In the case of dissolution of this Agreement, Lexatel will be entitled to claim from the Client (i) the amount of unpaid invoices, (ii) the unbilled charges for Services provided until the moment of suspension and/or interruption, (iii) any other charge or amount pending of payment by the Client and (iv) all damages caused as a result of Client’s actions.
A9.6. Client may not totally or partially assign, transfer, pledge or otherwise dispose his/her rights or obligations in favour of third parties without the prior written consent of Lexatel.
A10.1. Each party represents, warrants and undertakes to treat as confidential any and all information obtained from the other party which may come into its possession or into the possession of any of its employees, agents or contractors, as a result of or in connection with this Agreement, which in the case of the Client shall be deemed to include his/her information and in the case of Lexatel shall be deemed to include any information of Lexatel’s Service. No implicit licence or authorization is granted over Lexatel’s information by the provision of Services.
A10.2. This confidentiality obligation does not apply to any information which the receiving party proves is in or enters the public domain other than by breach the confidentiality duties set out in this Agreement; or is obtained from a third party who is lawfully authorised to disclose such information; or is required to be disclosed by law or by order of a court of competent jurisdiction or pursuant to a formal request of a tax authority or to its legal advisers for the purpose of obtaining legal advice, but in each case only to the extent and for the purpose of such disclosure.
[A11] Representations and undertakings
A11.1. In addition to any other obligations and responsibilities under this Agreement, the Client agrees and accepts expressly the following:
A11.1.1. Client is obliged to use the Services properly and in a correct way, in accordance with their intended purpose and according to General Terms and Conditions, Specific Terms and Conditions and any applicable regulations.
A11.1.2. Client will not use or permit any other person to use the Service fraudulently, in connection with a criminal offence or to cause breach of any law.
A11.1.3. Client declares that all factual information provided to Lexatel is complete, true, correct and updated.
A11.1.4. Client is obliged to have all the permissions and authorizations to install CPE (such as antennas, cabling, network equipment or any other equipment) on Client’s premises.
A11.1.5. Client will not sell, rent, distribute, transfer, assign or otherwise deal with the Services provided by Lexatel without the prior consent of Lexatel.
A11.1. Lexatel reserve the right to deny service if we become aware of fraudulent or illegal use of services and to report such use to the appropriate authorities.
A12.1. Lexatel hereby excludes to the maximum extent permitted by law all liability in the following cases:
A12.1.1. Incorrect or inappropriate use of the equipment by the Client.
A12.1.2. The Client does not fulfil his/her responsibilities.
A12.1.3. Damage in the network as a consequence of the use of non-homologated or non-compatible equipment.
A12.1.4. By judicial or administrative decision.
A12.1.5. Force majeure or fortuitous cases independent outside Lexatel’s control. In these cases, Lexatel will reimburse the Client the amount of fees and other amounts independent from traffic, prorated for the time that has lasted the interruption.
A12.1.6. Suspension of Services as a consequence of insufficient account balance.
A12.2. In addition, Lexatel will not be responsible of the proper working of Client’s equipment without prejudice to the warranties and conditions established by law or in the Specific Terms and Conditions. Lexatel will not be responsible for the content or information sent or received by the Client when using the Services.
[A13] Intellectual Property
A13.1. This Agreement does not imply any licence, transfer of rights or change of ownership regarding moral rights and intellectual or industrial property exploitation related to Lexatel, Client or any third party.
A13.2. Client will be sole responsible for infractions committed by him/her or their dependants which affect intellectual and industrial rights of Lexatel or a third party.
[A14] Software License
A14.1. This license shall be applicable to Lexatel software and/or equipment (jointly the “Software”) provided within Lexatel Services. Subject to the Client’s compliance with the terms of the Agreement, Lexatel grants a non-exclusive, non-transferable limited license to use the Software for the purpose of being provided with Lexatel Services.
A14.2. Except as expressly authorized by Lexatel in writing, it is forbidden to: (i) decompile, reverse engineer, disassemble or decode the Software or any copy, adaptation, transcription or merged portion of the Software; (ii) attempt to ascertain the source code of the Software or any of its components by any means, nor modify, adapt, translate or create derivative works based on the Software; (iii) tamper or interfere with the functionality, delivery or operation of the Software while using it; (iv) sell, resell, rent, lease, distribute, transfer, assign, sublicense or otherwise deal with the Software, its components, the documentation or any of the rights granted under this Agreement; (v) duplicate, reproduce or copy the Software or the documentation; or (vi) export or re-export the Software, directly or indirectly, into any country prohibited by law; (vii) use the Software in connection with other services that may replace or compete with Lexatel Services.
A14.3. It is prohibited to modify, remove, suppress, or in any other way make inconspicuous the copyright, digital fingerprints, watermarks, identification labels, legal notices contained within the Software or other technical protection devices or data identifying Lexatel’s or its licensors rights in the Software, its files or its components. No right is granted herein to the Client to resell or otherwise permit to any third party to use the Software. The Client is not authorized to utilize the Software for any purpose whatsoever other than using Lexatel Services.
A14.4. Save for the right to use the Software and the documentation expressly provided for in this Agreement, the Client agrees and acknowledges that all title to and rights in the Software, its components, structure, databases, source code or design, and in the documentation, including without limitation all copyright, trademarks, trade secrets, patents, and all other intellectual or industrial property rights and other confidential or proprietary information contained therein remain the property of Lexatel or its licensors.
A14.5. Lexatel assumes no warranty for the Software, to the extent permitted by applicable law. Except when otherwise stated in writing Lexatel provides the program "as is" without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
[A15] Data Protection
A15.1. In accordance with the rules of data protection, and especially Ley Orgánica 15/1999, de 13 de diciembre, de Protección de Datos, the data collected under this contract, as well as those collected during the commercial relationship between Lexatel and Client will be incorporated into a file called "Clients", duly registered before the Agencia Española de Protección de Datos, whose responsible will be Lexatel and whose purpose is to manage the commercial relationship between both parties as well as transmit bids, promotions or commercial communications by any means that Lexatel considers that may be of interest. Such data may be transferred only to any other group company of Lexatel or to any other third party necessary for the provision of Services and referrals for commercial offers that may be of interest or to those entities as a consequence of a legal obligation. Notwithstanding the foregoing, Lexatel shall transfer Client’s data to debt recovery agencies in case the Client is not diligent with the payments. Lexatel respects Client’s privacy and fulfils all the requirements established by legislation and in particular the security measures applicable to personal data files.
A15.2. Client can exercise his/her rights of access, modification and cancellation by sending request in writing to Lexatel’s address specified in the headings to the attention of the “Accounts Department”. To this effect, by signing this contract, Client gives its consent to the treatment of data described above.
A15.3. In the case that Lexatel transmits client data over own radio-access networks, the information will be encoded with strong-encryption algorithms.
A15.4. In accordance with the Data Retention Law (“Ley 25/2007, de Conservación de Datos relativos a las comunicaciones electrónicas y a las redes públicas de comunicaciones”), Lexatel hereby informs the Client of its obligation to retain data generated or processed in connection with the provision of Services, as well as the duty of transfer such data to public authorities when they are requested for research, detection and prosecution of a crime under the Criminal Code or criminal special laws.
A15.5. Lexatel will not work with Client’s credit card information. It is Client’s responsibility to maintain this information well protected.
A15.6. It is Client’s responsibility to maintain safe and secure their passwords for access to the Client Resource Area. Client agrees that access to this area may give access to confidential information or generate commitments and therefore protecting the access passwords is of utmost importance.
A16.1. This Agreement is solely for the benefit of the parties and their successors and permitted assigns, and, except as expressly provided herein, does not confer any rights or remedies on any other person or entity.
A16.2. If any provision of this Agreement is or becomes invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. The parties further agree that should it be an essential part of this Agreement, the parties will begin negotiations for a suitable replacement provision.
A16.3. Any notice required or permitted hereunder shall be in writing and given to the other party by email, fax, registered or certified mail at each party’s address set forth above. Notices would be addressed to the contact persons appointed by each party or in case of lack thereof to “Accounts Department”.
A16.4. If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party's reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, vandals, or hackers (a "force majeure event") the time for that party's performance will be extended for the period of the delay or inability to perform due to such occurrence; provided, however, that Client will not be excused from the payment of any sums of money owed by Client to Lexatel; and provided further, however, that if a party suffering a force majeure event is unable to cure that event within 30 days, the other party may terminate this Agreement.
A16.5. In no event shall a failure of either party to exercise or enforce any provision of this Agreement be construed as a waiver of any provision or right under this Agreement.
A16.6. This Agreement, including all documents incorporated herein, constitutes the entire agreement between Lexatel and Client in respect of Lexatel Services and supersedes all prior agreements, discussions or negotiations, written or orally, between the parties in relation to such matter.
[A17] Applicable Law and Jurisdiction
A17.1. This Agreement is governed by Spanish law and any disputes will be decided by the Courts and Tribunals of Barcelona. Lexatel does not submit to the jurisdiction of Consumer’s offices for Alternative Dispute Resolution methods.
A17.2. If Client is not a consumer (according to Spanish Consumer Law) or even if a consumer then, to the extent permitted by the applicable law, the jurisdiction in respect of any dispute arising out of these Conditions shall be the courts mentioned above. In the event that Client is a consumer, in respect of any such dispute, Lexatel will submit to the jurisdiction as required by the laws applicable to the consumer.