ENG – 20221108 General conditions char service provision

VERSION: 2022.11.08

These GENERAL CONDITIONS OF SERVICE PROVISION detail the scope, characteristics, conditions and commitments related to the provision of services contracted from CHAR of any type, by any means and for any product, forming a binding part of the commitment acquired with its contracting.

char refers to char desarrollo de sistemas, s.l.u., with CIF ESB61839023 and addressed at Parque Empresarial Arboretum – Avda. de la Fama, 16-20, 3ª planta, Cornellá de Llobregat (08940), Barcelona, Spain represented by its Administrator.

CONTRACTOR refers to the contracting party of the service, whether or not he/she is the beneficiary of the service. This contracting party will be the person or legal entity to whom the invoices for the contracted SERVICE are issued by char. 

The SERVICE refers to the supply of any products and related services under the formula Software Subscription (software subscription), SaaS (Software as a Service) and/or maintenance services of any product supplied under the formula of transfer of licence of use.

1. Acceptance

char and the CONTRACTOR accept and are bound by all the contents of these GENERAL CONDITIONS OF SERVICE PROVISION according to the general conditions that follow:

The content of these GENERAL CONDITIONS OF SERVICE PROVISION is the basis of the agreement between char and the CONTRACTOR regarding the provision of the contracted SERVICE. These conditions are perfected by:

• The specifications, characteristics and functionalities of the product that is the object of the SERVICE in accordance with the document referred to in the accepted offer.
• The specific conditions detailed in the accepted offer itself, especially in its economic commitments, general requirements, and particular conditions.

Acceptance of the offer in the form stipulated in the same implies the contracting of the SERVICE and therefore the ACCEPTANCE of these GENERAL CONDITIONS OF SERVICE PROVISION.

2. Provision of the service

char will provide the contracted SERVICE for as long as it is in force and active according to the agreed conditions:

• By giving up the necessary and agreed elements
• Performing the necessary maintenance according to the product contracted.
• Providing the interfaces and functionalities described in its functional specifications.
• Attending, in general, to the consultations and incidents detected and reported by the CONTRACTOR related to the contracted services.

3. Maintenance and technical support

In order to report incidents, the CONTRACTOR can contact char‘s technical support centre at the following address: https://www.charpmslink.com/helpdesk

Under standard conditions, from Monday to Friday, from 9:00 to 18:00 GMT+1, except holidays, at the support centre located in Barcelona, Spain.

At char‘s discretion, telephone communications may be made in those cases in which they are considered necessary to speed up the attention and resolution of queries or incidents.

The CONTRACTOR may at any time report to CHAR the queries or incidents detected on its own account in the SERVICE provided, char assuming the obligation to solve them, in case they are within the competence of its processes with the greatest diligence and in the shortest possible time, or simply evaluate them in case they are within the competence of third parties and in order to be reported by the CONTRACTOR to them, char not assuming in this case any responsibility for them or affecting the acquired commitments.

3.1. Maintenance of processes on centralized char servers

If the provision of the SERVICE involves processing on centralised servers under the control and supervision of char, these will be permanently monitored in order to detect and correct incidents even before their users may be affected.

In the case of incidents detected directly by char, these will be solved directly by char without any involvement of the CONTRACTOR. 

In the case that char considers these incidents to be relevant, they will be communicated to the CONTRACTOR in order to notify its existence and resolution.

3.2. Maintenance of processes on contractor’s premises

The attention of incidences in SERVICES in which processes are executed in equipment that are not located in char‘s premises and/or under char‘s supervision, will be carried out remotely through a data line provided by the CONTRACTOR. Any type of on-site work outside char‘s facilities is excluded from the contracted SERVICE.

The necessary tools for the establishment of remote connections to the equipment involved will be provided by char as long as they do not present specific requirements, of security, connection or any other, demanded in a particular way by the CONTRACTOR. In the latter case, the CONTRACTOR will have to provide char with the necessary tools and permissions, free of charge and without any cost for char. 

These connections may be unattended, i.e. with the possibility of being carried out without the intervention of the CONTRACTOR, or, on the contrary, with the acceptance of the CONTRACTOR in each case. In any case, the CONTRACTOR shall decide on the limitations of this connection.

In the event that the CONTRACTOR, for security reasons or any other, does not allow these remote maintenance connections, the CONTRACTOR assumes full responsibility for carrying out the necessary work with its own resources, supported by telephone or e-mail communication with char‘s technical support centre. In this case, char does not assume any responsibility for the resolution of the incidents that arise, and it is understood that the CONTRACTOR assumes this responsibility with his decision, without this affecting the contracted service, even if for this reason it is not possible to provide it in its entirety.

In the case of incidents detected directly by char and in the case of unassisted connection to the affected systems, these will be solved directly by char without any involvement on the part of the CONTRACTOR. 

In the case that, according to char‘s criteria, these incidences were relevant, they will be communicated to the CONTRACTOR in order to notify its existence and resolution.

4. Commencement, duration, suspension and termination of service

The start of the contracted SERVICE will commence upon ACCEPTANCE of the SERVICE.

This will mean the start of the coordination and previous works necessary for the start-up of the SERVICE, understanding that these works are part of the SERVICE itself. 

In the case that 60 calendar days after the ACCEPTANCE of the ACCEPTANCE it has not been possible to start the start-up of the SERVICE and this is attributable to causes beyond char‘s control, char reserves the right to SUSPEND the SERVICE in the terms stipulated for this situation.

Once the initially contracted period has elapsed, the contract will be considered automatically renewed for periods of similar duration unless either party gives notice to the other party in a reliable manner of its desire not to renew the contract at least 30 calendar days in advance.

4.1. Suspension

At any time, the CONTRACTOR may suspend the provision of the SERVICE and therefore the payment of the agreed fees. In order to do so, it will be sufficient to notify char at any time of this wish. The suspension will be effective 24 hours after the reception of the notification.

The suspension of the service will not imply the immediate refund of any fees paid in advance by the CONTRACTOR that affect the period of suspension. The compensation of these will be made on the instalments that may be invoiced once the service is reactivated. If the service is cancelled for any reason during the period of suspension, no compensation will be made in any way for any fees paid in advance.

After one calendar year has elapsed since the beginning of the suspension without the service being reactivated, char reserves the right to cancel the contracted SERVICE. 

The SERVICE will be considered automatically suspended in the terms defined in the case that the public administrations prevent by law the activity for which the contracted SERVICE is intended and for the period of time during which the SERVICE is prevented from being provided.

The reactivation of the service will occur when the CONTRACTOR communicates this circumstance or when the prohibitions to provide the service disappear. In the case of reactivation by the CONTRACTOR, the SERVICE may not be suspended again for a minimum period of time similar to that covered by any fees paid in advance.

4.2. Cancelation

The SERVICE may be cancelled in advance for any of the following reasons:

• By mutual express agreement of the parties.
• By serious or manifest breach of its clauses.
• Due to the supervening impossibility, legal or material, of fulfilling its objectives.
• On the part of char, due to non-payment of the SERVICE fees by the CONTRACTOR in accordance with the conditions of INVOICING AND PAYMENT OF THE SERVICE. 
• By cancellation by the CONTRACTOR. The CONTRACTOR can cancel the SERVICE in advance, at any time during its validity, by giving char at least 30 calendar days prior notice. If this happens during the first year of the ACCEPTANCE of the service and as long as a fee for the installation and commissioning has not been agreed, the CONTRACTOR will have to pay char 30% of the agreed annual amount as compensation and in order to cover the installation costs, independently of the fees paid up to that moment. In this circumstance, char will pay the invoice issued and will proceed to invoice, with the date of the notification, the period consumed from the beginning up to 30 calendar days from the date of notification, calculated proportionally to the annual fee, and the compensation of 30% of the annual amount of the service for this concept.
• If one calendar year has elapsed since the CONTRACTOR’s request for reactivation of the SERVICE without reactivation of the SERVICE.
• For any other cause contemplated by current legislation.

On termination of the contract, whatever the cause, the following shall apply:

• char will stop providing the contracted service, deactivating the contracted modules and/or the connection to the char servers.
• If the cancellation of the service is motivated by the CONTRACTOR’s will, causes beyond char‘s control or force majeure, CHAR will NOT refund possible SERVICE fees paid by the CONTRACTOR in advance, these being assumed as compensation to CHAR for the early cancellation of the SERVICE.
• The CONTRACTOR must return to char the user licenses that may have been supplied as a deposit for the drivers and/or modules installed locally by char for the realisation of the service. For this purpose, it will allow char access to the equipment where they are installed in order to proceed to their uninstallation.
• Both parties will be released from the commitments and obligations assumed with the exception of what could affect confidentiality and data protection clauses, which will remain in force for an indefinite period of time.

5. Billing and payment of the service

In the case of SERVICES contracted for fixed fees, the corresponding amounts will be invoiced at the time of STARTING the service, in accordance with the provisions of point 4 of these conditions.

In this case, invoicing will be done in advance and according to the agreed frequency, amounts and payment terms.

In the event that the SERVICE fee is variable according to factors agreed in the offer, it will be charged in accordance with the terms of the offer.

The contracted SERVICE fees will not change within the initial contracted period.

At the end of this period and for automatic renewals, the SERVICE fee may be increased by the percentage that may correspond to the increase in the Consumer Price Index (CPI) published by the Spanish National Institute of Statistics or any other body that may officially replace it in the future, corresponding to the last annual period and provided that it reflects a positive percentage.

5.1. Service extension and reduction

The CONTRACTOR may request, at any time, the extension or reduction of the SERVICE based on its contracting base or elements that are part of it.

To do so, it will be sufficient for the CONTRACTOR to communicate this to char‘s commercial contacts, indicating the details of the requested extension or reduction. This communication will become part of the SERVICE agreement.

In case of extension

char will activate the requested SERVICE extension and will issue the corresponding invoice.

The invoiced period will correspond to the proportional part between the moment of the extension and the expiry of the next invoicing period, so that the next invoice will include the entire contracted service.

In case of reduction

char will deduct from the next SERVICE invoice the amounts not consumed in accordance with the reduction made. In this situation, the SERVICE will not be cancelled without the total compensation of the possible outstanding fees to be refunded, and if so, the CONTRACTOR assumes that these possible outstanding amounts will NOT be compensated.

5.2. Non-payment

It is considered NON-PAYMENT:

• Failure to pay any of the invoices issued by char in relation to the contracted SERVICE within a period of one calendar month from the due date agreed for each invoice.
• In the case of variable service fees based on factors agreed in the offer, in addition to the above, the lack of confirmation of the data provided by char and/or the failure of the CONTRACTOR to send the data within a period of one calendar month from the date of sending the data agreed in each case will be considered as non-payment.

In case of non-payment, char will DEACTIVATE the contracted SERVICE by deactivating it during the period in which this situation is maintained, without this implying the application of the conditions of SUSPENSION contemplated, nor any type of compensation for the period in which the service is not provided for this reason, being expressly assumed by the CONTRACTOR as economic compensation to char for the non-fulfilment of its obligations.

In case the contracted period ends in this situation, the SERVICE will be CANCELLED. This will in no way affect the obligation of the CONTRACTOR to assume the payment of the outstanding amounts that exist at the time of termination. 

In any case, both in the DEACTIVATION and in the CANCELLATION of the SERVICE, char will not be obliged to expressly notify the CONTRACTOR of these circumstances in order for them to be applicable.

6. Subrogation

char and the CONTRACTOR, while the SERVICE remains active, may freely subrogate the entire agreement signed for the contracting of the SERVICE, as stated herein and as stipulated in the binding offer.

This subrogation will be formalised by means of the appropriate communication, which will become part of the acquired commitment, and will be effective from the moment of its communication.

7. Confidenciality

char and the CONTRACTOR are obliged to treat confidentially all information provided or obtained in the provision of the SERVICE and are obliged not to disclose it during or after the term of the SERVICE and to subject it to the same security measures that they are obliged to apply to the confidential information of other suppliers and clients. 

This obligation also applies to all employees and/or collaborators of both parties who know or may have access to such confidential information. Confidential information is understood to be all information that is exchanged or comes to the knowledge of the parties in written or verbal form, that is marked as such by either party, or that is not in the public domain or is not usually disclosed publicly.

These obligations shall be effective for an indefinite period of time beyond the end of the contracted service and the contract itself.

8. Authorizations

char and the CONTRACTOR mutually authorise each other to publicly disclose the existence of this contract, this being limited to the mere existence of this contract and the details of its content remaining confidential.

Likewise, the CONTRACTOR expressly authorises char in relation to the contracted services to:

• Request from the suppliers of devices, equipment and third-party systems that may be involved in the SERVICE and receive on their behalf the documents and data necessary for the provision of the SERVICE.
• Report on its behalf to the suppliers of the devices, equipment and management systems involved, the possible incidents detected in relation to the provision of the SERVICE.

9. Limitation of liability

char undertakes to provide the SERVICE in an appropriate manner and with all reasonable care possible according to the current state of the art. The CONTRACTOR acknowledges that char cannot guarantee the resolution of all incidents that are or may be transmitted to it, nor that they will be resolved within a predetermined period of time. 

char does NOT guarantee the suitability of the SERVICE for any particular purpose, and therefore char is not liable to the CONTRACTOR, user or any person or entity using the SERVICE for any economic, labour, or legal damage allegedly caused by the use or non-use of the SERVICE. 

char shall not be liable for any failure to perform its obligations, as defined for the provision of the SERVICE, if the performance of such obligations has been prevented, interfered with, or delayed by circumstances reasonably beyond its control. Such circumstances include, for example, the inability of the CONTRACTOR or char‘s technical staff to access the Technical Support Service due to acts of force majeure such as general communications failures or power failures.

10. Data protection

In accordance with the provisions of REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 (General Data Protection Regulation), we inform you about the possibility to consult char‘s privacy policy at https://charpmslink.com/privacy-policy/ 

All personal data related to the CONTRACTOR, provided by any means, for the performance of the SERVICE, will be included in an automated Client File who’s responsible is char desarrollo de sistemas, s.l.u., with address at Parque Empresarial Arboretum – Avda. de la Fama, 16-20, 3ª planta, Cornellá de Llobregat (08940), Barcelona, Spain, and will be treated with the utmost confidentiality and with the sole purpose of facilitating the development of the present service contract.The CONTRACTING PARTY is fully aware that in order to carry out the contracted SERVICE it may be necessary for char to receive from its systems and process data related to its activity, personnel, clients and/or any other data that may be necessary. For this reason, it expressly authorises char for this reception and processing in accordance with the provisions of:

https://charpmslink.com/documents/20221108-rgpd-data-processor-treatment

10.1. Jurisdiction

The parties undertake to resolve any disagreement that may arise in relation to this contract amicably.

In the event that this should prove impossible, and it should be necessary to resort to ordinary jurisdiction, the parties expressly waive their own jurisdiction and submit to the jurisdiction of the Courts and Tribunals of the city of Barcelona.

11. Annex

11.1. Service description.

This annex defines the particular terms and characteristics regarding the specific provision of the pmslink service, provided that it has been contracted, and within the general contract signed between the CONTRACTOR and char, forming part of it to all effects and purposes.

The purpose of the pmslink service is to provide the CONTRACTOR and CHAR with the work and elements necessary to carry out the integration, according to the contracted modules, of:

• Different equipment and devices: Communications systems (local or remote PBX), internet access systems (HOTSPOT), interactive TV systems, home automation systems, and in general any equipment or device installed in the hotel. These equipment and devices will be generally referred to as “EQUIPMENT”.
• With the CONTRACTOR’s management systems, whether developed in-house or by third parties: hotel management systems, CRM, databases, guest applications, incident systems, productivity, etc., generally referred to as “PMS” and, within the pmslink service, especially with the tools and systems provided.

The system is provided as a supply of services that encompasses the elements necessary for its realisation:

• char‘s own licences and software modules, which would be necessary to install for the exploitation of data and/or connectivity between the EQUIPMENT and the PMS management systems.
• The technical work for the installation, commissioning, training, maintenance and in general any work directly related to the provision of the service and related to char‘s software modules.

11.2. Scope and limitations of integration with EQUIPMENT and PMS.

The scope and functionality of the integration with the EQUIPMENT and PMS is subject to:

• The possibility of its realisation: The various EQUIPMENT and PMS to be integrated must provide appropriate interfaces or means to do so.
• The available data and action interfaces: the integration with the EQUIPMENT and PMS will be limited only by the information and functionalities supported by them, char offers in all cases the possibility to process all those that the EQUIPMENT and/or PMS can offer. char is not responsible for the functionalities not supported by the EQUIPMENT and/or PMS nor for the correct processing of the integrated functionalities by the EQUIPMENT and/or PMS.

There is no licensed limit on the number of EQUIPMENT and PMS possible to integrate. The only limitation on this will be the technological and/or physical limits that the hardware and/or O.S. on which the software modules involved are based, can support.

The following are not included within the scope of the integration:

• The necessary interfaces and/or physical means of connection, communications, equipment and/or hardware devices of any kind. Also excluded from the contracted service are any third-party software elements.

11.3. Connection with EQUIPMENT AND PMS.

char will carry out the connections with the EQUIPMENT and PMS involved remotely, according to what is established in the general conditions of the service contract. The CONTRACTOR will provide the necessary collaboration from its personnel.

These connections will be carried out through the local installation of the drivers and/or software modules, property of char, which could be necessary.

The licence for the use of these drivers and/or software modules will be given in deposit to the CONTRACTOR without additional charges to the contracted service and for the duration of the service.

The CONTRACTOR must provide the hardware equipment, operating systems and, in general, any licence, authorisation or third-party elements that may be necessary to carry out the processes required for the provision of the contracted service.

Integration with the EQUIPMENT and PMS shall be done, as appropriate, by means of:

• The mechanisms and protocols agreed between char and the different EQUIPMENT and PMS through certification, technological agreement or means used in connections usually made between them.
• Emulating the protocols of other systems supported by the EQUIPMENT and PMS.
• By means of standard protocols provided by char as integration APIs.
• By adapting char interfaces according to the specifications provided by the EQUIPMENT and PMS.  

In the case of EQUIPMENT and PMS without certified interfaces with char, char commits itself to carry out the necessary integration work without this representing an additional cost to the contracted service, and within the deadlines that char deems reasonably necessary. These deadlines will be subject to the availability of the supplier of the EQUIPMENT and PMS for its development, testing and/or certification processes.

The possible costs that the supplier of the EQUIPMENT and PMS may require from the CONTRACTOR in order to facilitate the integration (works, adaptations, licenses, data lines, etc.) will be provided and fully assumed by the CONTRACTOR.

The integration with the EQUIPMENT and PMS shall be adapted during the course of the contract to the changes that may occur in them, as well as to the integration with new EQUIPMENT and/or PMS that may replace the existing ones at the time of the activation of the service. This adaptation will be duly assessed at the time of its occurrence. 

char will coordinate with the personnel of the CONTRACTOR to carry out these connection and start-up works.

The CONTRACTOR must facilitate the collaboration of its own personnel, or personnel contracted under its responsibility, to carry out the necessary work on the EQUIPMENT and/or PMS, checks, tests, and in general any task that is necessary to carry out on them and that implies remote or on-site work and/or physical checks at the place of installation.

char is not responsible for the operation or maintenance of the hardware equipment or software modules of third parties that may be involved in these connections, being these under the responsibility of the CONTRACTOR, even though char will collaborate as necessary to solve any incident that may arise.

char will provide remote training to the personnel of the CONTRACTOR about the technical characteristics of the connections made, and the use, if necessary, of the installed software modules, as well as the protocol of action in case of incidents.

The CONTRACTOR will provide at the moment of the activation of the service the necessary data to process the data provided by the EQUIPMENT and/or PMS for the configuration that could be necessary for the correct connection with the EQUIPMENT and/or PMS involved (rooms, characteristics, numbering plans, rates, etc.).

char will notify the CONTRACTOR, to the contacts and addresses that are specified, of all the incidences that are detected in the connection with the EQUIPMENT and/or PMS. 

char will collaborate in the resolution of these incidents, facilitating the report to the supplier involved and will keep the CONTRACTOR informed of their resolution, although it will not assume any responsibility in the terms, forms and conditions for this, since it is under the exclusive competence and responsibility of the supplier of the EQUIPMENT and/or PMS involved.

Even if these incidents were to prevent the ultimate purpose of the service contracted with char, it is understood that these are beyond char‘s control, being its only obligation to detect and report them and that the claims to which the CONTRACTOR is entitled should be made directly to the supplier of the EQUIPMENT and/or PMS as the party responsible for its own systems and processes.