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General Conditions

General terms and conditions of business of Nekoh Digital SL

Version: V1

Effective from: 25-02-2022

Article 1 Applicability

1. These general terms and conditions of business (“Terms”) apply to all commercial offers, service proposals and quotes between Nekoh Digital SL, a Spanish limited liability company (sociedad limitada) with registered office at Calle dr Homs 2b, Alella, Barcelona, CIF B09783838 (“Nekoh Digital”) and the Client, whose type of legal entity and contact information are specified in a commercial offer, service proposal and quote. These Terms are deemed incorporated by reference into any signed commercial offer, service proposal or quote referencing them.

2. These Terms also apply in the event that Nekoh Digital  engages subcontractors, freelancers or other third parties for performance of services to the Client.

3 . In these terms and conditions:

  1. “Social Media” means all internet-based platforms, tools and  applications with which it is possible to share information in the form of text, sound, images and music with each other, in a public or semi-public format.
  2. “Online marketing” means the marketing, promotion or advertising of products or services through the Internet. 
  3. “Content” means the content of expressions to be posted on social media, including image and sound material.
  4. “Client” means the party specifically accepting in writing quote or offer of Nekoh Digital, whereby these Terms are referenced and attached.
  5. “Offer” means commercial offer, service proposal, or quote issued by Nekoh Digital.
  6. “Parties” means collectively Nekoh Digital and Client.
  7. “Party” means either Nekoh Digital or Client.

4. By signing or accepting the Offer, the Customer fully and unreservedly accepts these Terms, and the service is contracted, individually or bundled with other services (“Contract”). A binding contract is formed upon mutual signature of the Offer by both Nekoh Digital and the Client, which shall incorporate these Terms by reference. The Parties accept Contract formalization by means of digitalized or electronic signatures.  In the absence of signature, payment of the initial invoice, or written/email acceptance of the Offer by the Client, shall also constitute acceptance of these Terms, and shall form Contract.

5. The Client declares and warrants that it is contracting in a professional or business capacity, not as a consumer. The individual signing the Offer is over 18 years of age, and has full power and authority to bind the Client to the Contract, and that all necessary corporate or internal authorisations have been obtained.

6. Deviations, amendments and additions to these Terms are only valid if agreed in writing between the Parties.

7. The applicability of purchase or other terms and conditions of the Client is expressly rejected and excluded.

8. If any provision of these Terms  is declared null, unenforceable or invalid, in whole or in part by the competent court or authority, the remaining provisions of these Terms will remain in full force and effect. Nekoh Digital and the Client will subsequently enter into consultation to agree on new provisions to replace the null, unenforceable or invalid provisions, taking into account the purpose and intent of the original provisions as much as possible.

9. Where ambiguity arises in the interpretation of any provision of these Terms, such interpretation shall be made in accordance with the spirit and purpose of the Terms, applying principles of good faith as required under Spanish Civil Code, Article 1281 and its following articles.

10. If a situation arises between the Parties that is not regulated in Terms, such situation must be resolved in accordance with the general principles and purposes of these Terms, and supplemental provisions of Spanish Civil Code.

11.  The fact that Nekoh Digital does not always demand strict compliance with any obligation of these Terms, or does not immediately execute any of rights given under these Terms shall not be construed as a waiver of of Nekoh Digital’s rights to enforce such provision or obligation at a later time. Any waiver under these Terms shall be executed expressly, unequivocally, and in writing.

Article 2 Quotations and offers

1. The Client guarantees the accuracy and completeness of the information provided by or on its behalf to Nekoh Digital on which Nekoh Digital bases its Offer. The Client exercise the utmost diligence in defining the requirements and expectations applicable for services to be rendered by Nekoh Digital, and acknowledges that any omissions or inaccuracies may affect delivery, scope and cost of services. 2. All Nekoh Digital’s  Offers are non-binding, unless a term of acceptance has been established in the Offer. If no acceptance period has been established, the Offer shall be deemed expired and non-binding, if services offered are no longer available or feasible at the time of acceptance. 

3. Nekoh Digital cannot be bound by Offers that contain an obvious mistake or typographical error, provided that a reasonable Client ought to have recognized such error. In such a case, such Offer shall be considered voidable at the Nekoh Digital sole discretion..

4. If the Client’s acceptance of Offer deviates in any respect from terms of Offer issued by Nekoh Digital, such acceptance shall be deemed a counter-offer, and therefore no binding Contract shall be formed unless and until Nekoh Digital expressly confirms its acceptance of deviating terms in writing.

5 . A bundled Offer does not oblige Nekoh Digital to execute partial scope of services for proportionate portion of the price indicated in Offer. Offers shall apply exclusively to project referenced therein, and shall do not automatically apply to future engagements.

Article 3 Price, payment and collection costs

1 . All prices are exclusive of Volume Added Tax (VAT) and other government fees, unless expressly stated otherwise in Offer

2. If the Client comprises one or more natural persons and/or legal entities, each of them is jointly and severally liable (responsabilidad solidaria) for the payment of the amounts due under the Contract.

3. If the Client has a periodic payment obligation, Nekoh Digital is entitled to unilaterally adjust the applicable prices and rates in writing, with due observance of a period of three months. If the Client does not accept such adjustment, the Client has the right to terminate the Contract in writing with thirty calendar days notification, from the date on which the price or rate adjustment will take effect. This termination right shall not apply where the price adjustment is in accordance with an indexation clause, fixed adjustment rate, or similar pricing formula as previously agreed by the Parties. 

4. All invoices must be paid by the customer in accordance with the payment terms stated on the invoice (such as currency). In the absence of specific conditions, the Client must pay within fourteen calendar days after the invoice date by bank transfer to the  bank account number specified by Nekoh Digital, with reference to the invoice number. Monthly fees are billed at the beginning of each month.

5 . The Client is not entitled to suspend or offset the amounts due.

6. If no fixed price has been agreed, Nekoh Digital will charge an hourly rate of EUR 100,-, excluding VAT, travel and accommodation expenses and any other expenses. If prices are increased by third parties outside Nekoh Digital's sphere of influence, Nekoh Digital is entitled to pass on this price increase to the Client. This includes increased taxes, levies, and material costs.

7. In the event of late payment, the Client shall be liable to pay default interest on the overdue amount, without any prior notice or demand being required. Unless otherwise agreed in writing, the applicable interest rate shall be the rate established under Article 7.2 of Law 3/2004, which is the European Central Bank's most recent reference rate increased by eight (8) percentage points.If the Client continues to fail to pay after formal reminder or notice of default, Nekoh Digital reserve its right to deliver claim, in which case the customer is also obligated to pay all judicial and extrajudicial costs in addition to the principal amount and  interest due.

8. Nekoh Digital reserves the right, without a need for prior Client’s consent, to assign the debt to a third party for collection. In such case, the Client shall be liable for all judicial and extrajudicial recovery costs, in addition to the principal amount and interest due.

9. Disputes and objections to the amount of an invoice do not suspend the obligation to pay the undisputed portion of said invoice

10. If the Client is in default in the (timely) fulfillment of its obligations, all reasonable extrajudicial costs incurred to obtain payment out of court shall be borne by the Client. Such costs shall be calculated in accordance with prevailing Spanish recovery practice (e.g., criterios de los tribunales españoles y normativa tributaria aplicable). However, if Nekoh Digital has incurred higher collection costs than were reasonably necessary that are reasonably justified, the Client shall also be liable for the full amount of such actual expenses. Court and enforcement costs incurred will also be recovered from the Client. The Client  shall also owe interest on the collection costs due.

11. Unless expressly included in the Offer, the Client shall bear full responsibility for the cost and licensing of any third-party tools, software, or platforms required for the delivery of services.

Article 4 Execution of Online Marketing and marketing automation

1. The scope of services shall be defined in the signed Offer. Services include, but are not limited to, Online Marketing campaign setup and support, CRM automation, tracking implementation, campaign reporting, and integration with third-party platforms as described in the Offer. 2. The Client expressly warrants and guarantees the accuracy, completeness, integrity and consistency of the information provided to Nekoh Digital for the purpose of performance of services. Any inaccuracies, incomplete data and inconsistencies are at the Client’s 's own risk and expence.

3.  The Client will ensure that all information, access credentials, context, and cooperation that Nekoh Digital indicates is necessary or that the Client should reasonably understand is necessary for the execution of the Contract, is provided to Nekoh Digital in a timely manner.  Failure by the Client to provide such information in a timely manner shall entitle Nekoh Digital to (i) suspend its obligations under the Contract without liability, and/or (ii) charge additional costs resulting from such delay at rates specified in Article 3(6) above. The execution period and service timeline shall not commence until the Client has duly fulfilled its obligations to provide the required information and materials. Nekoh Digital is not responsible for damages, of any nature, for having been based on incorrect and/or incomplete data provided by the Client.

4. Nekoh Digital will perform the Contract to the best of its ability and in accordance with the requirements of good workmanship. All this based on the state of science known at that time. No obligation of result shall be implied unless expressly agreed.

5. Nekoh Digital  shall be entitled, at its sole discretion and without prior Client consent, to engage freelancers, subcontractors, or third-party service providers for the execution of specific tasks or phases of the services. Nekoh Digital shall remain fully responsible for the proper execution of such services, and shall ensure that engaged parties are bound by adequate confidentiality, data protection, and intellectual property obligations equivalent to those binding Nekoh Digital. The Client expressly authorizes the use of such engaged parties, including autonomously operating professionals (autónomos), provided such use does not materially affect the quality or delivery of the services.

6. Nekoh Digital shall not be liable for any delay, defect, or cost increase resulting from late, incorrect, or incomplete information or approvals provided by the Client.

Article 5 Commencement, duration, modification and termination of the contract

1. Unless otherwise expressly established in the signed Offer, the contractual relationship shall be deemed concluded on the date on which Nekoh Digital receives the Quote signed by the Client. Such signature constituting full and binding acceptance of the Terms herein.

2. Unless a termination date is included in the Offer, a Contract for Online Marketing (support) has a minimum duration of 3 months and is tacitly extended each month for one month, unless otherwise agreed. The Contract may be terminated in writing at any time after 3 months, subject to a one month prior written notice effective from the first calendar day of the next calendar month. The contract between Nekoh Digital and the Client is concluded for an indefinite period of time, without prejudice to the possibility of earlier termination in accordance with this article.

3. If during the execution of the Contract it is observed, if necessary, for a correct performance of service, to modify or complement the Contract, the Parties will proceed to adjust the Contract in a timely manner and in mutual consultation, and shall formalize such modification by mutual written agreement.

If the nature, scope or content of the Contract is modified, either at the request or by indication of the Client, the competent authorities, etc., and as a consequence the Contract is modified in qualitative and/or quantitative terms, it may have consequences for what was originally agreed, including entail an adjustment to the agreed price and/or timelines.

Nekoh Digital shall, where reasonably possible, notify the Client in advance of such variations by means of a revised estimate. The Client expressly accepts that changes to the Contract may entail an adjustment to price and/or delivery times. 

4. If proposed variation results in a price increase of more than 30% or if the activities of either Party are contrary to to public order (orden público) or good customs (buenas costumbres), both the Client and the Contractor have the right to terminate the Contract with immediate effect.

5. If the Contract is changed, including scope extension or an addition, Nekoh Digital is entitled to implement it only after the authorized person within Nekoh Digital has given its approval and the Client  has accepted the price and other conditions established for the implementation, including the time for determine and when it will be implemented. Failure or delay to execute the modified Contract does not constitute a breach of contract by Nekoh Digital and is not grounds for the Client to terminate or cancel the Contract.

6.  Nekoh Digital may, without being deemed in default, reject any request for modification if such change would materially alter the agreed work or adversely affect the quality, feasibility, or timing of deliverables. 7.  In the event the Client fails to comply with any material obligation under the Contract, such failure shall render the Client liable for all resulting damages and losses, direct or indirect, incurred by Nekog Digital.8. If the Contract is executed in phases, Nekoh Digital may suspend the execution of those parts that belong to a subsequent phase until the Contractor has approved the results of the previous phase in writing.Article 6 Confidentiality

The Parties ensure that all information received from the other Party that is known or reasonably should be known to be of a confidential nature will be kept secret. The Party receiving confidential information will only use it for the purpose for which it was provided. In any case, the information is considered confidential if so designated by one of the parties.

Article 7 Intellectual property rights

1 Unless otherwise agreed, Nekoh Digital reserves the intellectual property and industrial property rights over texts, designs, images, drawings, sketches, materials, methodologies, concepts, templates, automations, dashboards, software code, source code, plans, ideas, creative and technical elements developed or made available to the Client by Nekoh Digital in context of the Contract. Licence to deliverables and intellectual property created by Nekoh Digital shall transfer to the Client only after full payment of all invoices due under the relevant Offer.

Therefore, the Client must handle this data / information in such a way that it cannot be misused by third parties. In relation to this, the Client is obliged to use the designs only in the agreed manner and the Client, to the extent applicable, will indicate the full name of the Nekog Digital  in his publications / expressions.

2. Nekoh Digital  reserves the right to use the knowledge, experience, and methodologies acquired during the execution of the services for other clients or purposes, provided that such use does not involve disclosure of the Client’s confidential information or proprietary data..

3 . Nekoh Digital retain the non-exclusive right to reference, showcase, or reuse non-confidential elements of the work product (including campaign layouts, anonymised automations, or mockups) for promotional, portfolio, training, or commercial purposes, unless expressly restricted by the Client in writing prior to project commencement.

4. The Client shall ensure that any Content, material, trademarks, logos, data, or other elements provided to Nekoh Digital for processing, use, or integration into deliverables do not infringe the intellectual property rights or other rights of third parties. The Client shall bear sole responsibility for the legality and licensing of such Content and shall indemnify and hold harmless Nekoh Digital against any third-party claims arising from alleged infringement, misuse, or unauthorised use of intellectual property.

Article 8 Dissolution and termination of the contract

1 . If the Client, after the conclusion of an Contract through signature of Offer, unilaterally cancels the assignment in whole or in part, Nekoh Digital is entitled to charge all costs incurred in connection with that assignment to the Client, with a minimum of 50% of the outstanding Offer value., . Following such payment, Nekoh Digital will deliver to the Client what has already been developed in the context of that Offer, all this with due observance of the other provisions of these Terms.2. If the Client does not comply with its obligations, Nekoh Digital has the right to totally or partially suspend the execution of the Contract and charge the expenses caused by it, according to its usual rates specified in Article 3(6), without prejudice to without prejudice to any other statutory or contractually agreed right of Nekoh Digital.

3 .  Failure to meet a deadline or delivery date shall not, in itself, constitute default (mora) by Nekoh Digital. In any case, delay will only incur after the Client issues a written notice of non-compliance specifying the breach in detail and Nekoh Digital has been granted a reasonable period to cure such defaults. Only if non-performance of Offer persist after a reasonable period to cure, Nekoh Digital shall be considered in breach.  

4. If one of the Parties, upon written summons from the other Party, fails to fulfill an obligation, the other Party is entitled, without notice of default or judicial intervention, to terminate the Contract with immediate effect by means of written notice and without compensation to the other Party,without prejudice to the right of Nekoh Digital to payment for the goods already delivered, the work performed and/or services provided.

5 . Each party may terminate the agreement in writing with immediate effect, in whole or in part, without notice of delay, if a moratorium, whether provisional or not, is granted to the other party if bankruptcy is declared in respect of the other party, if the other party's business is liquidated or terminated for purposes other than business reconstruction or merger, or if decisive control over the customer's business changes. 6. Due to this termination, Nekoh Digital is never obliged to refund the payment already received, nor to pay compensation. In the event of bankruptcy of the Client, the right to use software, websites and the like made available to the Client expires by operation of law.

Article 9 Responsibility of Nekoh Digital

1 Facebook, LinkedIn, YouTube, Pinterest, Google, and Twitter, among others, or similar platforms are public platforms operated by third parties. Nekoh Digital shall not be held responsible for any technical failures, policy changes, algorithm adjustments, or other limitations inherent in such platforms, nor for interruptions or malfunctions beyond its reasonable control.

2. Any liability of Nekoh Digital  arising from breach of contract or on any other legal basis shall be strictly limited to compensation for direct damages only, and in no case shall exceed  four times the value of the monthly invoice (excluding VAT), but in all cases only to the extent that the damage is covered by Nekoh Digital's civil liability insurance.

3. For the purposes of this clause, “direct damages” shall mean:

  1. Reasonable costs incurred in assessing the cause and extent of the damage;or
  2. Reasonable costs incurred to remedy Nekoh Digital’s failure to perform, insofar as such breach is attributable to Nekoh Digital,
  3. Reasonable expenses incurred to prevent or limit direct damages, provided such costs demonstrably reduced the damage for which Nekoh Digital is liable; 

Indirect damages, including but not limited to loss of profit, loss of revenue, reputational harm, business interruption, or loss of data, are expressly excluded, unless resulting from willful misconduct or gross negligence.

4. The exclusions and limitations to which this article refers expire if, to the extent that the damage is the result of intentional misconduct or gross negligence of Nekoh Digital employees or third parties hired by Nekoh Digital.

5. Unless performance has become permanently impossible, Nekoh Digital shall only be liable if the Client has formally notified it in writing of the breach, specifying the deficiency in detail, granted a reasonable period for remedy, and Nekoh Digital has failed to comply after such period. The notice of breach must describe the alleged shortcoming with sufficient specificity to allow Nekoh Digital to respond appropriately.6. A condition for the existence of any right to compensation is that the Client reports the damage in writing to Nekoh Digital within 96 hours after it occurred.

7. The provisions of this article, as well as all other limitations and exclusions of liability mentioned in these Terms, also apply for the benefit of all natural and legal  persons that Nekoh Digital uses in the execution of the Contract.

Article 9 Force majeure

1. Neither Party shall be held liable for any failure to comply with its obligations under this Contract if such failure is the result of a cause beyond its reasonable control and not attributable to its wilful misconduct or negligence, including but not limited to causes defined as force majeure under law. Force majeure shall include any unforeseeable and unavoidable event or circumstance that makes the performance of contractual obligations impossible or unreasonably burdensome. In such cases, the affected Party shall promptly notify the other Party in writing, specifying the nature, cause, expected duration of the force majeure, and the contractual obligations that are impacted thereby. The obligations of both Parties shall be suspended for the duration of the force majeure event, without liability. 2. Force majeure also expressly includes, but is not limited to: (I) force majeure of Nekoh Digital suppliers (II) defects in goods, equipment, software or materials of third parties whose use has been prescribed to Nekoh Digital by the Client, (III) government measures, legal prohibitions, sanctions or administrative restrictions (IV ) power outage, failure of the Internet, computer network or telecommunication facilities, (V) war, job occupation, civil unrest, labour strikes, and general transportation problems.

3. If the force majeure situation lasts for more than two months, the Parties will try to reach an agreement on the modification of the provision(s) of the Contract suspended due to force majeure. In the absence of such agreement within one month, either Party may terminate this agreement without being liable to pay any compensation to the other Party. However, Nekoh Digital shall be entitled to payment for any goods delivered, services rendered, or work performed prior to such termination.

Article 10 Changes and additional work

1. If Nekoh Digital has carried out work or other actions at the request or with the prior consent of the Client that fall outside the content or scope of the originally agreed services, these services will be deemed extra work and  will be reimbursed by the Client in accordance with the Contract. In the absence of a specific agreement, such work shall be invoiced at Nekoh Digital’s standard hourly or service rates applicable at the time. Nekoh Digital shall not be obligated to perform any extra work and may, at its sole discretion, require a written agreement to be executed before proceeding.. 

2. The work or execution referred to in this article may affect the agreed or expected time for the performance of the services and the mutual responsibilities of the Parties. The fact that (the demand for) additional work or Client’s requested modifications occurs during the execution of the Contract is never a reason for the Client to terminate or dissolve the Contract.

3. Nekoh Digital will inform the Client about the financial consequences of the extra work or performance referred to in this article. Such estimates shall be indicative and non-binding unless expressly agreed otherwise in writing.

Article 11 Disclaimer

1. The Client shall indemnify, defend, and hold harmless Nekoh Digital from and against any claims, actions, or demands by third parties arising from damages or losses connected to the performance of this Agreement, where such damages are attributable to acts or omissions of the Client or any third party engaged by the Client. This includes, but is not limited to, claims arising from unlawful advertising, data breaches, or platforms misuse resulting from Client-supplied materials or instructions.

2. If Nekoh Digital is named as a party to such a dispute, the Client shall be obligated to fully cooperate in the legal defence of Nekoh Digital, including but not limited to providing documentation, attending proceedings, and assuming related legal costs. Failure by the Client to act promptly shall entitle Nekoh Digital to take all necessary legal or procedural steps at the Client’s sole expense and risk. All costs, damages, or settlements incurred by Nekoh Digital as a result shall be borne exclusively by the Client.

Article 12 Applicable law and disputes

1. The Contract between Nekoh Digital and the Client is governed exclusively by Spanish law, without regard to any conflict-of-law principles.

2. All disputes, controversies, or claims arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the competent courts of the judicial district in which Nekoh Digital has its registered office.

3. The parties will only appeal to the court after they have made every effort to resolve a dispute in mutual consultation