Updated on May 31, 2022
I. The Provider states through its legal representative:
a) WHEREAS it’s a company duly incorporated and registered in the corresponding public registry.
b) WHEREAS in terms of its own specific articles of incorporation, according to the Provider’s legal responsibilities, faculties and obligations it is authorized to enter into agreements as the one stated herein.
c) WHEREAS its legal representative has sufficient authority to execute the Agreement and the General Provisions and that such authority has not been modified, limited and/or revoked as the date thereof.
d) WHEREAS the Provider willingly wishes to execute the Agreement and the General Provisions and is fully capable of rendering the services described in the Contract, under the terms and conditions that the General Provisions state, as well as those contained in the Agreement.
e) WHEREAS all of the resources that it will use under the Agreement and the General Provisions are of legal origin and that such resources will not be used in order to carry out illegal activities such as money laundering or terrorism financing, as established in the applicable law and international instruments.
f) WHEREAS the Provider complies with all the applicable tax obligations, as well as with those of administrative nature, that may impede the purveyance of the Service.
g) WHEREAS all the information and documents stated in the Agreement are updated and true.
h) WHEREAS the Provider acknowledges the absence of any element that could invalidate its consent.
II. The Client states through its legal representative:
a) WHEREAS it’s a company duly incorporated and validly existing under the laws of Mexico; registered in the Public Property and Commerce Registry of its registered office.
b) WHEREAS in terms of its own specific articles of incorporation, according to the Client’s legal responsibilities, faculties and obligations it is authorized to enter into agreements as the one stated herein.
c) WHEREAS it willingly wishes to execute the Agreement and obtain the Service thereof.
d) WHEREAS the addresses stated in the Agreement are true.
e) WHEREAS the Client acknowledges the absence of any element that could invalidate its consent.
The Parties acknowledge and agree that the executed Service Agreement forms an integral part of the General Provisions and that both documents constitute the same Agreement.
The terms contained in this clause will have the meaning stated herein and will be applicable to the Agreement and to the General Provisions.
Means the General Provisions and the Service Agreement.
2. General Provisions
Means the clauses and annexes, if applicable, where the description of the general terms and conditions of the agreement are stated, and, where the general terms of the terms and conditions of the purveyance of the Service are detailed; the rights and obligations each Party has in accordance with legal dispositions and, when applicable, the rights and obligations legally acquired by means of the Parties’ agreements in order to ensure the correct execution of the Agreement.
3. Service Agreement
Means the set of clauses and annexes, if applicable, where the specific terms and conditions for the purveyance of the Service are stated; the rights and obligations each Party has in accordance with the legal dispositions and, when applicable, the rights and obligations legally acquired by means of the Parties’ agreements in order to ensure the correct execution of the Agreement.
The services detailed in the Service Agreement that the Provider will purvey to the Client in accordance with the terms and conditions established therein.
The terms not defined will have the meaning established herein. Singular terms include plural terms and plural terms include singular terms.
In virtue of the Agreement the Provider agrees to provide the Services to the Client and to assign every right related to such, the Client agrees to pay to the Provider a contribution for the Service provided, prior the delivery of the respective invoice from the Provider to the Client which must have the Parties’ correct information, provided that the Parties are in compliance with the applicable law (hereinafter the “Contribution”).
The Provider agrees to communicate to the Client any findings and recommendations in relation to the Service.
The Service will be rendered and delivered, and the Compensation will be payed, in the form, place, date and bank account established in the Service Agreement. When the Contribution is payed by electronic transfer, the Client will be liberated of any payment obligation by the realization of such and the emission of the corresponding payment receipt, if available.
Notwithstanding the foregoing, the Parties agree that in terms of that established on the Service Agreement, the Client could make the delivery of money or goods, according to the percentage of the Contribution established in the Service Agreement, by means of a Deposit (“Deposited Amount”), with the purpose of guaranteeing the compliance with its obligation or obligations. The aforesaid amount will apply, without prior notice, to the price that the Client shall pay as Contribution only if the Provider has complied with the totality of its obligations. If the case were to appear where the Provider fails to comply with any of its obligations, the Provider must return the Deposited Amount in the next 15 (fifteen) days following the notice made by the Client requiring said amount. The term of the Deposit will be that of the term of the Agreement, being applicable any extension or renewal of the last mentioned. The notices made in virtue of the Deposit will be made in the terms and conditions stated in the Agreement.
The Agreement will take effect from the date of its execution and its term will be that defined under the Service Agreement.
Either Party may terminate this Agreement at any time prior written notice to the other Party of at least thirty (30) days . The termination of the Agreement entails the termination of its respective annexes,if applicable.
The Agreement may be terminated by either Party, prior written notification and without the need of a judicial resolution, if any of the following circumstances where to arise:
a) Continued breach by any Party (for periods over 30 days) to any of the obligations established in the Agreement.
b) The Provider fails to assign the intellectual property rights referred in the Agreement in favor of the Client.
c) Statement, ruling or administrative resolution issued by a competent authority stating that any of the Parties has not complied with their own applicable legal, administrative or statutory obligations.
d) The Service may be deemed forbidden or limited by any applicable legislation, ruling, statute or any agreement or resolution emitted by a competent authority.
e) The Parties file, or is filed against them, any bankruptcy procedure, mercantile insolvency or any other analogue procedure within or outside Mexico, and it is declared insolvent, liquidated, disabled to carry out commercial activities or permanently closed.
f) A strike procedure, riot or any conflict breaks out against one of the Parties.
Any delay or failure of compliance in the provision of the Services as set forth in the Agreement shall be sanctioned by the payment of an indemnity of 5% (five percent) of the amount payable by the Client, in proportion to the Services that were not rendered under the terms of the Agreement, such proportion will be determined by the Client.
Notwithstanding the aforementioned, for any breach by the Provider of its obligations described in the terms of the Agreement, the Provider shall be liable to the Client for an immediately due and payable penalty of 10% of the total sum of the unfulfilled obligation in proportion to the Services that were not provided in terms of the Agreement, as the case may be, without prejudice to any other rights provided for by law or under the Agreement such as the right to obtain specific performance, termination of the Agreement, the right to an injunction or the right to claim damages in lieu of this penalty.
If the Service were to involve creative services, the Provider shall hold the Client harmless if any dispute concerning intellectual property rights were to arise, as well as respond for the originality and creativity of the Service and of all the materials related to such, for which it obliges himself to hold the Client harmless of any complaint, trial or procedure against him as a violation of a third party’s intellectual property rights, as well as paying the damages done to the Client as a result of the foregoing.
The Provider will transfer the property of the rendered Services to the Client, without any limitation, covenant or liability. The Provider will guarantee that the property is not subject to any third party’s rights over such. The Provider irrevocably waives any rights over the Service’s deliverables, intellectual property rights, licenses, permits or authorizations that may apply by administrative authorities or any other international intellectual property authority.
The Provider agrees and accepts that the execution of the Agreement does not grant him any authorization for the use of trademarks, trade names, patents, programing code, licenses and other intellectual property rights of the Client, its subsidiaries, affiliates, controllers or entities pertaining to the same business group, except there is a written authorization given by the Client.
Provider acknowledges and accepts that all the materials and intellectual property rendered by the Provider as a result of the Agreement will be considered as “works for hire” and will be of the Client’s exclusive property. The foregoing includes, but will not be limited to, all the deliverables resulting of the Service contemplated in the Agreement, works in progress, registers, diagrams, notes, drawings, specifications, schemes, documents, designs, improvements, inventions, findings, developments, registered trade names or trademarks, trade secrets, client lists, databases, softwares, programs, middleware, applications and solutions made by the Provider, by itself or in collaboration with another, developed as a result of the Service rendered under the Agreement.
Any transfer or assignment, total or partial, of the rights and obligations of the Agreement, will only produce effects if it is written and signed by both Parties, unless the Client makes the assignment to any subsidiaries, affiliates, controllers, entities of the same business group or any entity with which it has a contractual relation for operations, in which case the Providers’ consent will not be necessary.
In the event either Party is unable to perform its obligations under the Agreement as a consequence of an Act of God or Force Majeure, or any other cause reasonably beyond its control, such Party shall not be liable for the damages resulting from such failure to perform.
Once the cause that motivated the suspension of the Parties’ obligations ceases, they will be once again liable for any malperformance of such.
Any modification to the rights, obligations or to the Agreement’s terms and conditions, will only be effective if executed by both Parties.
The Provider can restrict, suspend or pause the purveyance of the Service either partially or totally and the Client can restrict, suspend or pause the payment of the Contribution in any of the following cases:
a) The Client reflects a total or partial unpaid balance if 30 days have passed since the payment notice has been made by the Provider.
b) The Parties public image, reputation or good name is affected.
c) At the Client’s request.
The Parties agree that if a notice for the termination of the Agreement is made by any of them, they are obliged to fulfill the totality of their obligations due until the day of the notice. The Provider must deliver the Service as is and the Client must pay the sums due.
The presentation the termination notice of the Agreement will not affect the validity and enforceability of the obligations related to the delivery of the Service and the payment of the Contribution, as well as the validity and enforceability of the obligations that due to their nature or by disposition of law may be deferred to a later date.
The Parties may demand the fulfillment of the aforesaid obligations even after the termination of the Agreement.
The Agreement, contains the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, including electronic communications, with respect to such matters.
The Parties agree that the subtitles of the clauses are for identification purposes only, they must not be taken into account for the Agreement’s interpretation.
If one or more provisions of the Agreement are determined to be inapplicable or invalid on any degree under applicable law, such provision will be interpreted in a way that it may be applicable to the greatest extent possible. If such provision results completely inapplicable, then the rest of the Agreement will be interpreted as if such provision was excluded from it.
Each of the Parties agrees that for purposes of the Agreement, all of the information of the Parties that is revealed, obtained or that the Parties have access to under the Agreement is considered of a confidential nature, which includes, but is not limited to, any tangible or intangible information, whether it is oral, written, digital, taped, microfilmed or stored in any other way, including but not limited to any information regarding products, prices, business plans, commercializing or the promotion of products, practices and/or commercial policies, systems, software, accounting and financial information, legal information, technical information, brands, industrial designs, intellectual property, administrative information, client information, commercial contacts, databases, current and possible partnerships, performed services, reports, plans, market projections and formulas, mechanisms, patterns, methods, review processes, work documents, compilations, comparisons, strategies, studies and in general any information labelled or not as confidential, which hereafter will be identified as “Confidential Information”.
Both Parties agree that under no circumstances and by no means will they reveal or disclose to any third party any Confidential Information, nor will they use improperly or for different purposes than those imposed by the nature of their contractual relationship.
In addition, both Parties oblige themselves to give to the Confidential Information the same treatment they would give to the information of their own property. Such treatment must imply a reasonable degree of care so that the information is not revealed or used improperly.
The Parties agree that “improper use” means any use that is not according to the purposes or ends of the Agreement, in accordance with its terms and conditions. The Parties agree that “reasonable care” means any actions performed by whichever Party, necessary to safekeep the interests of the Parties relating to their Confidential Information.
It is expressly stated that the Parties are prohibited from revealing, duplicating, copying, or disclosing in any other way, commercializing, operating, exploiting, or celebrating any legal covenant that is directly or indirectly involved with the Confidential Information.
Both Parties will refrain from revealing the Confidential Information to any of their employees or consultants, except to those on a need-to-know basis and which with they have had entered into an agreement containing provisions related to the revealing and use of information with provisions similar to the ones established in the Agreement.
The restrictions and obligations under this clause will survive the termination of the Agreement and will be obligatory for the Parties, just as for their successors or authorized assignees as long as the Confidential Information maintains its confidential nature.
The Provider hereby assigns and transfers to the Client the entire right, title, and interest in all inventions, Confidential Information, Copyright Works and patents prepared, made or conceived under the Agreement (solely or jointly with others) without any restriction, limitation, lien, encumbrances, hidden faults or any other flaws that may decrease its value.
The abovementioned will only apply in case the Client pays the entire Contribution or, when applicable, the partial amounts. In case of early termination of the Agreement, the Provider will deliver the Service as is, transmitting the Service in the manner and terms established above.
In terms of the foregoing the Provider will answer for any damages or lost of profits that the Client may suffer as consequence of any claim arising out of the use, enjoyment and disposition of the Service, and the Provider will restitute the Client in the possession of any goods of similar characteristics in case of any detriment in the Client’s rights over any goods. In the same sense, the Provider will indemnify and hold the Client harmless of any trial, claim or procedure in which the rights of property of the Client over the Service are put in question.
The Provider will fulfill all of its obligations under the Agreement with the specifications and expertise required by the Service. If the case where a breach to the Provider’s obligations were to arise, the Provider will be responsible for any damages or loss of profits caused to the Client.
The Provider will make sure that the workers, contractors, subcontractors and/or the service providers that the Provider hires to provide the Service have the knowledge, resources and all the authorizations, licenses, permits and any other right necessary to provide the Service, and will ensure the fulfillment of their obligations before the Client having in place agreements that offer the same or greater protections and responsibilities than those contained in the Agreement. For the sole reason of providing the Service to the Client, such workers, subcontractors and/or service providers are responsible for the breach of the obligations that the Provider has under the Agreement.
In case of any breach by the Provider of the provisions set forth in the Agreement that may result from its employees, subcontractors and/or service providers, the Client may at its own right claim to the Provider the responsibility from such breach and demand the payment of damages and loss of profits suffered by the Client and/or the contractual penalty that may apply in such cases. In case that for whatever reason the Client is not able to be indemnified by the Provider, the Client may claim the indemnification directly to the subcontractors, employees or service providers of the Provider, in which case all the necessary documents will be executed, and the breach of their obligations will be satisfied before the Client in the same manner in which the Provider would have done so.
Any limitation of liability that may be agreed between the Parties will not apply in case of malicious intent, negligence, bad faith, lack of skill or guilt from the Provider.
The Parties hereby acknowledge that they are independent of each other and that the Agreement does not constitute any working relationship nor any joint venture. The Provider acknowledges that neither the Provider, its employees nor the persons it may hire in virtue of the Agreement are employees of the Client, for they will have no right and/or action against the Client for pursuing salaries and/or any contribution associated with that of a working relationship, including their registration on any office or private or public institute.
Therefore, the Provider acknowledges that the Client, under no circumstance, has or will have any labor or social security obligation before the Provider, its employees or its service providers, given that the Provider has in place its own resources, which are enough to comply with all its obligations before its workers. The Provider must compensate the Client for any expenses due to the afore mentioned working relationships.
Pursuant to the above, the Provider recognizes that it does not execute any work or service exclusively for the Client and that it is allowed to freely provide equal or similar services to the ones established in the Agreement to other natural or legal persons.
Regarding all personal data that the Provider has access in connection to the provision of the Services, the Provider will treat such personal data under the principles of loyalty, transparency, legality in the treatment, limitation in the purpose, need to know basis or necessity, exactitude, integrity and confidentiality.
The Provider must treat at all times the personal data that he has access to in accordance with the terms of the privacy notice of the Client, and in matters not covered by it, in accordance with the applicable legislation regarding personal data protection in possession of individuals or private entities and with the General Data Protection Regulation (UE) 2016/679, issued by the European Parliament and Council of the European Union on April 27, 2016 and therefore the Provider is obliged to:
a) Refrain from using the personal data for any other purpose different from the purpose of the Agreement.
b) Process personal data under the highest security standards and to employ physical, technical, organizational and technological measures that ensure the confidentiality, secrecy and integrity of the personal data.
c) Maintain absolute confidentiality over the personal data that the Provider has access to in connection with the purpose of the Agreement.
d) Keep a record of all authorized processors and sub processors.
e) Avoid communicating, under any reason, personal data to third parties, except there is a prior written authorization of the Client.
f) Once the Service is fully performed, to destroy all the personal data to which the Provider had access to, as well as any documents in which the data is recorded.
g) To notify the Client, in no more than 72 hours, any known violation to the security of the personal data that the Provider had access to, as well as the sufficient information in order to effectively address and document the problem. The Provider must also communicate any alleged violation to the confidentiality stated in the Agreement in virtue of the disclosure of data and information to third parties during the Agreement’s execution.
h) Whenever an individual chooses to exercise any of their personal data rights before the Provider, the Provider must communicate it immediately to the Client no later than the first working day following the receipt of the petition to exercise such rights.
i) To collaborate with the Client in the performance of its obligations regarding security, communication and/or notices of any breach.
j) To make available to the Client all the information necessary to demonstrate the performance of the obligations established in this clause.
Any notice or communication done under the Agreement will have to be written and delivered, personally, by courier and with acknowledgement of receipt or by e-mail with acknowledgement of receipt by the person to which it was addressed, in the addresses established in the Service Agreement.
If the Parties do not notify their change of addresses, whether physical or virtual, all the communications, notices, and other judicial or extrajudicial diligences practiced in the last physical or virtual address will have all their legal effects.
Notices made by electronic means will only be considered valid if they are practiced under the terms of the existing federal code of commerce in Mexico.
The Parties hereby agree that if a controversy over the interpretation, execution and fulfillment of the Agreement were to arise they will submit to a mediation process before the Alternative Justice Center of Mexico City or to a private mediation process, which may be performed using electronic means or physically, if the afore mentioned is not feasible, the mediation could be carried out by the means established in the Civil Procedure Code for Mexico City. If the controversy where to subsist after the mediation process, the Parties agree to submit to the jurisdiction of the competent courts of Mexico City for all matters regarding the interpretation, execution and fulfilment of the Agreement, hereby waiving any other jurisdiction that may correspond to them.