Service Provision and Use Agreement for ServiceTonic Cloud

This Service Provision and Use Agreement for ServiceTonic Cloud constitutes the entire Agreement between the Customer and ServiceTonic S.L., and supersedes any prior Agreement between ServiceTonic S.L. and the Customer with respect to this software or any software that replaces it.

Likewise, to the extent permitted by applicable law, the provisions of this Agreement supersede any communication or advertising relating to the software or documentation, to the extent that such communications conflict with any of the terms of this Agreement or predate it.

Acceptance of the terms of this Agreement does not grant the Customer any right of use not specified herein with respect to the aforementioned programs and/or products of ServiceTonic S.L. This Agreement applies both to the trial period offered to the Customer and to the commercial use of the service after the trial period.

Definitions

“SERVICETONIC”: ServiceTonic, S.L., a company of Spanish nationality, registered in Barcelona, C/Aragón 383, 6th floor, 08013, with Tax ID number B-65201964. You may consult our contact details for further information.

“CLOUD”: A concept associated with the provision of services over the Internet without the need for software downloads or installations.

“ServiceTonic Cloud”: A cloud-based software application of which SERVICETONIC is the sole holder of all exploitation rights, hosted on the Cloud Platform referred to in this Agreement as a high-availability, redundancy and scalability service.

“CUSTOMER”: The natural or legal person who contracts the ServiceTonic Cloud service offered by SERVICETONIC that is the subject of this Agreement.

“Agreement”: Contains all definitions and conditions set out in this document regarding the ServiceTonic Cloud service that the CUSTOMER contracts with SERVICETONIC.

“Administrator”: The person designated by the CUSTOMER, under their exclusive responsibility, to use and manage ServiceTonic Cloud, including, among other things, the ability to create Agents and Users within the framework of the terms set out in this Agreement.

“Agent(s)”: Person(s) designated and authorised by the CUSTOMER’s Administrator, under their exclusive responsibility, to use ServiceTonic Cloud within the framework of the terms set out in this Agreement.

“User(s)”: Person(s) designated and authorised by the Administrator to use ServiceTonic Cloud.

“CLOUD Platform”: The technology platform managed by ServiceTonic, comprising various elements including servers, software, communications and services, owned by SERVICETONIC or subcontracted by SERVICETONIC, accessible via the Internet, where the data introduced by the CUSTOMER into ServiceTonic Cloud is stored or hosted.

“Number of Agents”: The maximum number of Agents included in ServiceTonic Cloud, as specified in the Order Form.

“Optional Modules”: A set of optional functionalities that will be available in ServiceTonic Cloud, as specified in the Order Form.

“Order Form”: The document that the CUSTOMER must complete and sign to finalise the contracting process for ServiceTonic Cloud, which specifies, among other things, the number of Agents contracted, the Optional Modules, the service period, the price and the payment terms.

“Help”: Online documentation available directly within the software that details the functionalities available in ServiceTonic Cloud.

“Trial Period”: A period that SERVICETONIC may offer the CUSTOMER to test ServiceTonic Cloud free of charge. Any data entered or configuration performed in ServiceTonic Cloud during the trial period will be retained if the CUSTOMER contracts the service before the end of this period. Otherwise, upon expiry of the period, all information provided by the CUSTOMER will be deleted.

“Data Controller”: The natural or legal person, of a public or private nature, or administrative body, that decides on the purpose, content and use of the processing. In this Agreement, the CUSTOMER.

“Data Processor”: The natural or legal person, public authority or any other body that, alone or jointly with others, processes personal data on behalf of the data controller. In this Agreement, SERVICETONIC.

Contractual Documentation and Order of Precedence

This Agreement, the Order Form, the Service Level Agreement (SLA), the Data Processing Agreement (DPA) and any other document or annex expressly incorporated into this Agreement together constitute the contractual relationship between SERVICETONIC and the CUSTOMER.

In the event of contradiction or discrepancy between such documents, they shall prevail in the following order:

The Order Form.
This Agreement.
The Service Level Agreement (SLA).
The Data Processing Agreement (DPA).
Any other annex or supplementary documentation.

In matters of personal data protection, the provisions of the Data Processing Agreement (DPA) shall prevail in all cases.

General Terms and Conditions

Price, Payment Method, Invoicing and Service Activation
The price of the service will be determined by the number of Agents, Optional Modules and any data storage extensions contracted by the CUSTOMER, and will be specified in detail in the “Order Form” that SERVICETONIC will provide to the CUSTOMER.ServiceTonic Cloud will be activated automatically once the CUSTOMER completes the service activation form, which requires express acceptance of this Agreement. The service will be activated free of charge during the Trial Period.
SERVICETONIC will send an email to the address provided by the CUSTOMER with the access credentials for their ServiceTonic Cloud instance, including the URL and the Administrator account. From that moment, the Administrator is responsible for managing their account as well as for creating and maintaining all other Agent and User accounts, without SERVICETONIC having knowledge of the corresponding credentials.
Acceptance of the Order Form by the CUSTOMER will determine the start date of the contract period. From that moment, SERVICETONIC will proceed to invoice and collect payment in advance for the contracted service, using the payment method specified in the Order Form.
SERVICETONIC reserves the right to modify at any time the prices applicable to ServiceTonic Cloud, including, but not limited to, those relating to the number of Agents, Optional Modules, additional storage, associated services or any other functionalities contracted by the CUSTOMER.
Any price modification will be communicated to the CUSTOMER with a minimum notice of thirty (30) calendar days prior to its entry into force, by email addressed to the Administrator or by notification through the ServiceTonic Cloud platform itself.
The new rates will apply from the next renewal of the current contract period. If the CUSTOMER does not accept the notified modification, they may terminate the Agreement without penalty before the date on which the new rates come into force, by written notice to SERVICETONIC.
Continued use of the service once the renewal date has been reached will imply express acceptance of the new pricing conditions.
Term and Duration
The term of the Agreement shall run from the activation of ServiceTonic Cloud until the end of the period specified in the Order Form, although for invoicing purposes the start date shall be taken as the date of acceptance of the Order Form. Upon expiry of the contract period, the Agreement will be tacitly and automatically renewed for the same period, unless either party provides express written notice of non-renewal at least fifteen (15) days before the expiry date. Any such notice of non-renewal shall take effect from the first day following the expiry date of the Agreement.
Terms of Use
SERVICETONIC grants the CUSTOMER non-transferable, non-exclusive access to ServiceTonic Cloud, solely under the terms and conditions set out in this Agreement, in the Order Form accepted by the CUSTOMER, in the Software Help documentation and in any other applicable documentation.Use of ServiceTonic Cloud is permitted to Agents and Users who have an access account, with the CUSTOMER being responsible for the creation and maintenance of such accounts.
The functional and technical features of ServiceTonic Cloud are detailed on the ServiceTonic website and in the application’s Help documentation.
Agents and Users must have Internet access and the equipment and IT systems necessary to connect to the network, including a suitable device (computer, mobile phone, etc.).
Intellectual Property
ServiceTonic Cloud has been created by SERVICETONIC, which shall retain all intellectual property, industrial or any other rights over ServiceTonic Cloud, which may not be subject to any further modification, copying, alteration, reproduction, adaptation or translation by the CUSTOMER.The structure, features, codes, working methods, information systems, development tools, know-how, methodologies, processes, technologies or algorithms of ServiceTonic Cloud are the property of ServiceTonic, or its suppliers, and have in the latter case been licensed or assigned by them, and are protected by Spanish or international intellectual and industrial property regulations, and may not be subject to any further modification, copying, alteration, reproduction, adaptation or translation by the CUSTOMER.
Likewise, all user manuals, texts, graphic designs, databases, videos or audio media relating to or supplementing ServiceTonic Cloud (hereinafter, “Associated Materials”) are the property of ServiceTonic, or its content providers, and may not be subject to any further modification, copying, alteration, reproduction, adaptation or translation by the CUSTOMER.
Making ServiceTonic Cloud and the Associated Materials available to the CUSTOMER does not in any way imply a transfer of ownership thereof, nor the granting of any right of use in favour of the CUSTOMER other than that provided for in these General Terms and Conditions.
Consequently, any use by the CUSTOMER of ServiceTonic Cloud or the Associated Materials without the authorisation of ServiceTonic is strictly prohibited, including its exploitation, reproduction, dissemination, transformation, distribution, transmission by any means, subsequent publication, display, public communication or total or partial representation, which, if they occur, shall constitute infringements of ServiceTonic’s intellectual or industrial property rights, subject to sanctions under applicable legislation.
Obligations and Responsibilities of SERVICETONIC
In its dealings with the CUSTOMER, SERVICETONIC shall act with due diligence in the conduct of its commercial activity, in good faith and loyally.SERVICETONIC shall inform the CUSTOMER, prior to contracting and in a specific, clear and precise manner, of the specific characteristics of the requested services, such as the price and applicable taxes.
SERVICETONIC undertakes to use its best efforts to guarantee the maximum availability and operational continuity of the ServiceTonic Cloud service, in accordance with the service levels established in the corresponding Service Level Agreement (SLA), which forms an integral part of this Agreement.
Notwithstanding the foregoing, the CUSTOMER acknowledges and accepts that, on an occasional basis, temporary interruptions, service degradations or access limitations may occur as a result of actions necessary for the correct operation, maintenance, updating, improvement or security of the platform, including, but not limited to, preventive or corrective maintenance tasks, deployment of new versions, application of security patches, remediation of vulnerabilities, updating of integrations, APIs or third-party components, as well as any other technically essential action required to preserve the integrity, confidentiality, availability and security of the service.
SERVICETONIC will endeavour to carry out such actions while minimising the impact on the CUSTOMER and restoring the service within a reasonable timeframe, taking into account the nature and complexity of the relevant incident or technical action.
The time spent carrying out the actions described above, particularly those motivated by security reasons, maintenance or remediation of critical vulnerabilities, shall not count towards the calculation of the availability levels committed to in the SLA, nor shall it constitute any breach of the service obligations assumed by SERVICETONIC.
The current SLA will be available to the CUSTOMER through the corporate website or as a contractual annex.
SERVICETONIC will maintain a daily backup system for the content.
SERVICETONIC will provide the CUSTOMER with a support service during business hours, committing to respond within a maximum of the next business day.
Limitation of Warranty
The CUSTOMER accepts that ServiceTonic Cloud is provided “as is”, and therefore SERVICETONIC does not in any way guarantee that the functions it contains will meet the CUSTOMER’s needs, nor that ServiceTonic Cloud will operate without errors. The CUSTOMER shall bear the full cost of all services required to adapt it to their needs.As this is a service provided over the Internet, SERVICETONIC shall not assume any liability arising from technical problems attributable to the CUSTOMER.
Access to and use of ServiceTonic Cloud is the exclusive responsibility of the CUSTOMER, such that SERVICETONIC shall not be liable in any way (whether directly or indirectly) for any direct or indirect damages that the CUSTOMER may cause to third parties. SERVICETONIC shall not assume any liability for actions carried out by agents or users created and authorised by the CUSTOMER.
In no event shall SERVICETONIC accept liability for data loss resulting from actions performed by the CUSTOMER, business interruption or any other losses arising from the operation of the service and/or the service’s failure to meet the CUSTOMER’s expectations.
In no event shall SERVICETONIC be liable for loss of profits, loss of business, loss of revenue, loss of opportunity or indirect or consequential damages.
SERVICETONIC disclaims all liability for the consequences arising from the inoperability of the CUSTOMER’s email address or failure to notify a change of address, as well as for any lack of information alleged by the CUSTOMER due to their own negligence in keeping this data active.
The CUSTOMER expressly waives any right to claim contractual or non-contractual liability, or damages, from SERVICETONIC for any failures, slowness or errors in accessing and using the contracted service.
Notwithstanding the foregoing, in the event of a breach of these terms and conditions or directly proven damages caused to the CUSTOMER in connection with ServiceTonic Cloud, the maximum cumulative liability of SERVICETONIC, even when arising from multiple harmful events, shall not exceed the amount effectively paid by the CUSTOMER to SERVICETONIC proportional to the six (6) months preceding the harmful event. If less than six (6) months have elapsed since this Agreement came into force, said limit shall be calculated on the proportional equivalent of six (6) months of service.
This amount replaces, with the express consent of the CUSTOMER, any other compensation for damages. It shall be the CUSTOMER’s responsibility to take out adequate insurance policies to cover any damages suffered that may exceed the aforementioned maximum liability limit.
No clause and/or information, whether oral or written, shall be deemed to alter this disclaimer of warranties by SERVICETONIC in relation to the Service and/or the Platform, or to create any type of warranty on the part of SERVICETONIC.
Likewise, SERVICETONIC shall not be liable to the Customer for any harmful event unless the Customer has notified their claim in writing to SERVICETONIC within fifteen (15) calendar days from the date on which the Customer became aware of it.
The CUSTOMER assumes all responsibilities and risks associated with the use of ServiceTonic Cloud. If the CUSTOMER does not wish to assume such risks and responsibilities, their sole remedy against SERVICETONIC is to cease using the platform and services.
This provision is without prejudice to cases where liability cannot be excluded or limited due to mandatory provisions of applicable legislation.
Obligations and Responsibilities of the Customer
To have full power of representation, legal capacity and capacity to act in order to contract the Services.To be over eighteen (18) years of age and not to have limited capacity to contract and/or use the Services offered by SERVICETONIC.
To provide certain accurate and up-to-date data at the time of contracting the Service.
To assume payment for the contracted services in accordance with the provisions set out in these Conditions and in the contracting process.
If using ServiceTonic Cloud on behalf of a third party (Controller), to have the authorisation of said third party to do so.
If storing and processing personal data of third parties in ServiceTonic Cloud, to inform the interested party in advance and, where applicable, obtain their consent. If the data concerns persons resident in European Union countries, the CUSTOMER undertakes to process such data in accordance with Regulation (EU) 2016/679 of 27 April 2016 (GDPR).
To ensure that all Agents and Users comply with the obligations and guarantees set out in this document, as well as to ensure the security and confidentiality of access credentials to ServiceTonic Cloud.
To make appropriate use of ServiceTonic Cloud, within the limits and conditions indicated in this document and in applicable regulations.
SERVICETONIC reserves the right to suspend, in whole or in part, performance of the Agreement (i.e., to cease providing the service) if it notices, detects and/or verifies in the course of its maintenance work that ServiceTonic Cloud is being misused. To this end, SERVICETONIC will carry out a temporary suspension of the service. The CUSTOMER will be notified of this circumstance so that they may resolve the issue, and if, once the service has been resumed, the situation recurs on a continuous or bad-faith basis, the service will be terminated without any right to a refund, on the grounds of misuse of the service.
Personal Data for Which the Customer Is Responsible
The use of ServiceTonic Cloud by the CUSTOMER may involve the processing of personal data, for which the CUSTOMER and/or the Controller is responsible, by SERVICETONIC and its usual service providers.Consequently, the CUSTOMER, for the purposes of Regulation (EU) 2016/679 of 27 April 2016 (GDPR), accepts that SERVICETONIC will perform the functions of Data Processor in respect of such data, in accordance with the Data Processing Agreement (DPA) which forms an integral part of this Agreement.
Service Providers Used by SERVICETONIC
For the correct provision of the ServiceTonic Cloud service contracted by the CUSTOMER, SERVICETONIC may engage various specialised suppliers and subcontractors who act as ancillary service providers necessary for the operation, maintenance, support, hosting, communications, monitoring, security and other activities associated with the delivery of the service.Where such third parties have access to or may process personal data for which the CUSTOMER is responsible, they will act as sub-processors, in accordance with applicable personal data protection regulations and under the instructions of SERVICETONIC.
The updated list of such service providers and sub-processors, together with a description of the services they provide and, where applicable, any applicable international data transfers, is detailed in the Data Processing Agreement (DPA). SERVICETONIC will ensure that such third parties are bound by confidentiality, security and data protection obligations equivalent to those assumed by SERVICETONIC under this Agreement.
Adaptations or New Versions of ServiceTonic Cloud
SERVICETONIC may carry out adaptations or release new versions of ServiceTonic Cloud, and may also discontinue some of its functionalities.The CUSTOMER accepts that SERVICETONIC may make such changes and will inform them via notices or alerts visible to the Administrator or by sending emails. In no event may the CUSTOMER claim compensation from SERVICETONIC for any damages or losses that may arise from the application of these adaptations or new versions.
Promotional Use of the Customer’s Name and Logo
SERVICETONIC reserves the right to use the CUSTOMER’s name and logo solely for the purpose of promoting its own Services and providing references to other potential customers.By accepting this Agreement, the CUSTOMER expressly authorises this use of their name and logo; however, the CUSTOMER may object to such use at any time by contacting SERVICETONIC through any of the contact methods made available to the CUSTOMER, including the contact form.
Cancellation and Termination of Service
The CUSTOMER may cancel the service at any time by providing written and verifiable notice to SERVICETONIC. From that moment, SERVICETONIC will cease invoicing the CUSTOMER.Non-payment of an issued invoice will entitle SERVICETONIC to suspend or terminate this Agreement and, consequently, to cancel the CUSTOMER’s access to the application, once fifteen (15) days have elapsed from the date of non-payment and following prior notice from SERVICETONIC. In the event of termination of the Agreement, the CUSTOMER may recover the information they have stored in ServiceTonic Cloud up to that point by requesting it from SERVICETONIC’s support service, provided that they are up to date with their payment obligations to SERVICETONIC.
In no event shall SERVICETONIC be liable for any direct or indirect damages arising from the suspension or cancellation of the service under these circumstances.
Once the CUSTOMER’s account is cancelled, access credentials will be deactivated and the data stored by the CUSTOMER in ServiceTonic Cloud will be deleted within a maximum period of thirty (30) days from the effective termination of the service, unless there is a legal obligation to retain it.
Upon termination of the service, the CUSTOMER may request, free of charge, the export of their data in a standard readable format, which will be delivered within a maximum of thirty (30) days from the termination of the service.
Confidentiality
The parties undertake to maintain absolute confidentiality with respect to all information, documentation, data, materials, procedures, technical knowledge, commercial, strategic or any other nature of information to which they may have access in connection with the conclusion or performance of this Agreement, whether verbal, written, electronic or in any other form (hereinafter, “Confidential Information”).In particular, the CUSTOMER acknowledges that ServiceTonic Cloud, its structure, organisation, functionalities, technical documentation, methodology, code, designs, know-how and other associated elements contain confidential information and trade secrets owned by SERVICETONIC or its suppliers.
The parties undertake to:
- use the Confidential Information solely for the correct performance of this Agreement;
- not disclose, assign or communicate it to third parties without the prior written authorisation of the other party;
- adopt reasonable technical and organisational measures necessary to preserve its confidentiality and prevent unauthorised access.
The obligations set out in this clause shall not apply to information that:
1. was in the public domain at the time of its disclosure or subsequently enters the public domain without any breach of contract;
2. was legitimately known to the receiving party prior to its disclosure; or
3. must be disclosed by legal obligation or by order of a competent judicial or administrative authority.
The confidentiality obligations set out in this clause shall remain in force throughout the duration of the Agreement and for an additional period of five (5) years from its termination, regardless of the cause thereof.
Amendment of the Agreement
SERVICETONIC reserves the right to modify this Agreement at any time, as well as any policy, condition, annex or documentation related to ServiceTonic Cloud, including, among others, the Service Level Agreement (SLA) and the Data Processing Agreement (DPA), in order to adapt them to regulatory, technical, operational, security, functional or business changes.This Agreement and any updates to it will be permanently available for consultation on the SERVICETONIC website.
Any material modification will be communicated to the CUSTOMER with a minimum notice of thirty (30) calendar days through any of the communication channels habitually used by SERVICETONIC.
Modifications will come into force on the date indicated in the relevant communication. If the CUSTOMER does not accept the new conditions, they may terminate the Agreement prior to its entry into force by written notice to SERVICETONIC.
Continued use of ServiceTonic Cloud once the modification has come into force will imply acceptance of the new contractual conditions.
Severability
If any clause of this Agreement is declared wholly or partially null or ineffective, such nullity or ineffectiveness shall only affect that provision or the part thereof that is null or ineffective, and the General Terms and Conditions shall otherwise remain in full force and effect, with the affected provision or part thereof being deemed not to have been included. For these purposes, the General Terms and Conditions shall cease to be valid only with respect to the null or ineffective provision, and no other part or provision of these General Terms and Conditions shall be annulled, invalidated, prejudiced or affected by such nullity or ineffectiveness, unless, being essential to these General Terms and Conditions, it were to affect them as a whole.
Applicable Law and Jurisdiction
To resolve any dispute relating to the provisions of this Agreement or its performance, the CUSTOMER and SERVICETONIC expressly submit to the Courts and Tribunals of Barcelona, waiving any other jurisdiction that may correspond to them.