For the purpose of these General Terms and Conditions, the terms set out below shall be construed as follows:
PROVIDER: WORKMETER, S.L., a company legally incorporated under Spanish law with registered office at Via Laietana, 45, 4th Floor – 1, 08003, Barcelona and holder of VAT registration number B65493298 (hereinafter “WORKMETER”).
WORKMETER SOFTWARE: a set of SaaS Services that allow ADMINISTRATORS to monitor and assess activities designated by the CLIENT through different tools.
SaaS Services: a generally admitted technical and trade name through which the use of an application is leased to USERS who connect to it over the Internet.
SaaS Platform: a technology tool which allows the CLIENT and USERS to access and use the WORKMETER SOFTWARE.
CLIENT: a natural or legal person, whether public or private, that uses the WORKMETER SOFTWARE in exchange for economic consideration.
ADMINISTRATORS: natural persons who access, configure and use the WORKMETER SOFTWARE to monitor and assess the activities of EMPLOYEES on behalf of the CLIENT.
EMPLOYEES: natural persons whose activities are subject to tracking and monitoring through the WORKMETER SOFTWARE at the CLIENT’S request.
USERS: clients, administrators and/or employees which use the WORKMETER SOFTWARE in their respective areas of management in accordance with these General Terms and Conditions of Use.
PARTNER: a natural or legal person that supplies and/or markets the WORKMETER SOFTWARE, which in certain cases may act as an intermediary between WORKMETER and the CLIENT.
1. Scope of the General Terms and Conditions of Use
The purpose of these General Terms and Conditions of Use is to set forth the terms and conditions by virtue of which the PROVIDER shall provide the SaaS Services of the contracted WORKMETER SOFTWARE to the CLIENT. In particular, the following are governed:
(i) Remote access to and use by the CLIENT of the contracted WORKMETER SOFTWARE, which forms part of and is housed in the SaaS Platform belonging to the PROVIDER or to subcontracted third parties;
(ii) Granting the relevant restricted use licence for the WORKMETER SOFTWARE to the CLIENT.
2.WORKMETER SOFTWARE Contracting Process
2.1 In order to initiate the contracting process, the CLIENT shall accept these General Terms and Conditions of Use, from which time each of the ADMINISTRATORS shall be assigned a password of their choosing so they may use the WORKMETER SOFTWARE.
2.2 Should the CLIENT have used the WORKMETER SOFTWARE after having requested a trial period and is interested in continuing with the contracting process for the SaaS Services, the CLIENT shall complete and sign the AGREEMENT, which shall contain the Specific Contracting Terms and Conditions.
2.3 In the Specific Terms and Conditions or AGREEMENT (hereinafter indistinctly referred to as “AGREEMENT”), the CLIENT shall indicate, among other aspects, (i) the initial number of managed employees contracted under the framework of the provision of SaaS Services of the WORKMETER SOFTWARE; and (ii) a contact person in charge of centralising and coordinating relations with WORKMETER, S.L.
2.4 The conclusion of the contracting process shall be subject to (i) verification of the AGREEMENT’S contents by WORKMETER, S.L.; and (ii) notice given to the CLIENT of WORKMETER, S.L.’s possible conformity.
2.5 Once the contracting process has been successfully completed, the SaaS Services passwords will allow each of the USERS designated by the CLIENT to use the contracted WORKMETER SOFTWARE, provided the contracting requirements and the Specific Terms and Conditions thereof continue to be fulfilled.
2.6 The CLIENT is hereby informed and accepts that the information contained on the PROVIDER’S website or on the WORKMETER SOFTWARE contracting website do not constitute a contractual offer or the start of a business relationship with the PROVIDER. Fulfilment of the requirements set forth to conclude the contracting process or their maintenance in these General Terms and Conditions of Use are in any event required instead.
2.7 If the CLIENT is not in agreement with the contents of these General Terms and Conditions of Use or with any of the Specific Terms and Conditions envisaged in the AGREEMENT, the CLIENT shall immediately refrain from making use of the WORKMETER SOFTWARE and continuing with the contracting process.
2.8 The CLIENT hereby recognises and accepts without any reservations whatsoever that they shall have a single trial period for each of the WORKMETER SOFTWARE modules and that they may not request a second trial period, even if it were because of a new version, the passage of time or for any other reason.
3. Restricted Use Licence of the WORKMETER SOFTWARE
3.1 WORKMETER, S.L. grants to the CLIENT one non-exclusive, non-transferable use licence for the contracted WORKMETER SOFTWARE solely under the terms and conditions set forth in these General Terms and Conditions of Use, the AGREEMENT, the User Manuals and in any other documentation which applies, regardless of whether it is on hard copy, discs, read-only computer memory or on any other media which may apply from time to time.
3.2 Use of WORKMETER, S.L’s contracted WORKMETER SOFTWARE shall only be allowed to the CLIENT’S USERS (ADMINISTRATORS or EMPLOYEES) who have the SaaS Services and equipment numbers indicated by the CLIENT. They may therefore not grant access to third parties beyond the CLIENT’S scope.
3.3 The CLIENT shall refrain from making copies, disclosing and allowing third-party access to the contracted WORKMETER SOFTWARE and shall likewise not allow its use to people who are not ADMINISTRATORS or USERS created under their liability or who are acting beyond the limits set forth herein. In any event, the CLIENT shall be held liable for said people properly fulfilling the terms and limitation of this use licence and these General Terms and Conditions of Use.
3.4 The rights granted to the CLIENT pursuant to the clauses envisaged in these General Terms and Conditions of Use shall be extended to include any updates or new versions which replace and/or complement the contracted WORKMETER SOFTWARE, except where the updates or new version in question have their own terms and conditions of use which set forth otherwise.
4. Intellectual Property of the WORKMETER SOFTWARE
4.1 The contracted WORKMETER SOFTWARE has been created by the PROVIDER, which shall keep all its intellectual property and industrial rights or rights of any other kind. Hence, the WORKMETER SOFTWARE may not be subjected to any subsequent modification, copy, alteration, reproduction, adaptation or translation by either the CLIENT or the USERS.
4.2 The contracted WORKMETER SOFTWARE’S structure, features, source codes, work methods, information systems, development tools, know-how, methodologies, processes, technologies or algorithms are owned by the PROVIDER and/or third parties. In the latter case, they have been subject to licencing or assignment by said third parties. As a consequence thereof, they are protected by Spanish or international intellectual and industrial property laws and may not be subjected to any subsequent modification, copy, alteration, reproduction, adaptation or translation by either the CLIENT or the USERS.
4.3 All the user manuals, texts, graphic drawings, databases, videos or audio media referring to or which complement the contracted WORKMETER SOFTWARE (hereinafter “Associated Materials”) are likewise owned by the PROVIDER or third parties and may not be subjected to any subsequent modification, copy, alteration, reproduction, adaptation or translation by either the CLIENT or the USERS.
4.4 Under no circumstances shall placing the contracted WORKMETER SOFTWARE at the CLIENT’S disposal involve the assignment of its ownership or the granting of a right of use to the CLIENT and to USERS other than as envisaged in these General Terms and Conditions of Use.
4.5 Any other use of the contracted WORKMETER SOFTWARE or of the Associated Materials made by the CLIENT and/or USERS carried out without the PROVIDER’S prior written authorisation is strictly forbidden, including their exploitation, reproduction, disclosure, transformation, distribution, transmission by any means whatsoever, subsequent publication, exhibition, public communication or total or partial representation, which shall be deemed infringements of the PROVIDER’S intellectual or industrial property rights should they come about and shall be prosecuted according to the legislation in force.
5. SaaS Services Provision Scheme
5.1 The PROVIDER shall provide the SaaS Services either directly using its own resources or through the collaboration of third parties. More specifically, the PROVIDER may subcontract all or part of the SaaS Platform to the industry’s specialised companies.
5.3 The so-called “Service Level Agreement”, which contains the level and quality requirements which shall apply to the SaaS Services, is attached hereto as Appendix I. As far as said Service Level Agreement is concerned, the PROVIDER undertakes to make its best efforts to ensure its fulfilment, assuming the CLIENT’S total fulfilment of (i) the provisions set forth in Clause 6 hereunder as regards technical specifications; and in general (ii) with regard to any other obligations set forth in these General Terms and Conditions of Use.
5.4 Pursuant to Clause 2.3(ii) above, the CLIENT shall appoint a contact person in charge of centralising and coordinating relations with the PROVIDER in so far as the provision of the SaaS Services is concerned.
6. Technical Specifications and User Manual
6.1 Appendix II to these General Terms and Conditions of Use contains the necessary technical specifications that the CLIENT’S networks, equipment and terminals will have to comply with at all times in order to be able to install and make use of the contracted WORKMETER SOFTWARE. Should the CLIENT’S networks, equipment and terminals fail to comply with the aforementioned technical specifications, the CLIENT shall refrain from installing and using the WORKMETER SOFTWARE.
6.2 Each of the programs or applications chosen by the CLIENT as contracted WORKMETER SOFTWARE has its own specific User Manual setting out its specific operations and basic instructions of use. Said manuals may be accessed on the www.workmeter.com website.
6.3 The CLIENT hereby states that they know and are aware of the contents of the User Manual of each of the programs or applications they have chosen as contracted WORKMETER SOFTWARE.
6.4 The PROVIDER declines any liability that may arise from the CLIENT using the software in a way which does not comply with the User Manual or if the CLIENT’S networks, equipment and terminals fail to comply with the aforementioned technical specifications.
6.5 The CLIENT shall disconnect its networks, equipment and terminals from the SaaS Platform if the PROVIDER deems said networks, equipment or terminals have caused or might cause failures, interruptions errors or defects in the said SaaS Platform after having received a prior warning thereof from the PROVIDER.
7. Terms and Conditions of Use of the SaaS Platform and the WORKMETER SOFTWARE
7.1 As set forth in Clause 2 above, access to the SaaS Platform and the contracted WORKMETER SOFTWARE may solely be gained by the ADMINISTRATOR(S) to whom the PROVIDER has provided the relevant password to the SaaS Services and, where appropriate, by the authorised Sub-Administrators and/or EMPLOYEES created under the sole liability of the ADMINISTRATOR(S), all of which shall be for a use limited to the number of USERS indicated by the CLIENT in the AGREEMENT.
7.2 The CLIENT may solely use the SaaS Platform and the contracted WORKMETER SOFTWARE in keeping with the purposes envisaged in these General Terms and Conditions of Use. The CLIENT and/or USER is expressly forbidden from using the SaaS Platform and contracted WORKMETER SOFTWARE for the following purposes, including, but not limited to:
(i) The exploitation, reproduction, disclosure, transformation, distribution, transmission by any means whatsoever, subsequent publication, exhibition, public communication or total or partial representation of the contracted WORKMETER SOFTWARE;
(ii) Allowing people other than the USERS designated by the CLIENT to make use of the SaaS Services or gain access to the SaaS Platform and the contracted WORKMETER SOFTWARE;
(iii) Performing any kind of action that may entail modifications, adjustments, damage or alterations in the SaaS Platform;
(iv) Processing information or data which are deemed unlawful, offensive, slanderous, libellous, defamatory, racist, xenophobic, obscene, insulting, threatening or discriminatory;
(v) Processing information or data which contain viruses, trojans or any other elements that might cause damage to or alterations in the SaaS Platform.
7.3 Some the contracted WORKMETER SOFTWARE’S modules may offer the CLIENT and/or USER the possibility of participating in forums and/or sharing information with the PROVIDER or with other clients that have contracted SaaS Services. In relation to the foregoing, the CLIENT undertakes not to transmit, disclose or make available to other clients or third parties any information, messages, graphics, sound and/or image files, photographs, recordings, software and in general any kind of material, data or contents (hereinafter the “Contents”) which:
(i) Induce, incite or promote criminal, insulting, defamatory or violent behaviour or which, in general terms, are contrary to the law, morals, generally accepted customs or public order;
(iii) Induce, incite or promote discriminatory actions, attitudes or ideas on the grounds of sex, race, religion, beliefs, age or condition;
(iii) Include messages that are unlawful, violent, pornographic, degrading or which are in general contrary to the law, morals, generally accepted customs or public order;
(iv) Are protected by any kind of intellectual or industrial property rights held by third parties without the CLIENT and/or USER having previously obtained the necessary prior authorisation from the holders of such rights.
7.4 The CLIENT shall be liable for any damages and harm which the PROVIDER, other clients or third parties may suffer as a result of the CLIENT failing to fulfil any of the obligations undertaken and contained in these General Terms and Conditions of Use and/or in the Specific Contracting Terms and Conditions and shall hold the PROVIDER harmless from any claim that may be filed concerning the above. The CLIENT shall likewise accept to pay for any amounts which the PROVIDER may be obliged to incur for any such reason whatsoever.
7.5 In order to verify the CLIENT’S fulfilment of the provisions envisaged in these General Terms and Conditions of Use and to ensure the security, operation and proper use of the SaaS Platform, the PROVIDER reserves the right to monitor the use made of the SaaS Platform and the WORKMETER SOFTWARE by the USERS designated by the CLIENT.
8. Price and Payment Method
8.1 The AGREEMENT shall set forth in detail the price and payment method that shall apply as consideration for the SaaS Services and rights of use over the WORKMETER SOFTWARE granted to the CLIENT by virtue of the provisions set forth in these General Terms and Conditions of Use.
8.2 The price of the SaaS Services and the WORKMETER SOFTWARE licence shall be set on the basis of the number of USERS indicated in the AGREEMENT or, where appropriate, those identified the PROVIDER.
9. The PROVIDER’S Liability as SaaS Services Provider
The PROVIDER’S liability as regards the obligations of providing the SaaS Services assumed pursuant to these General Terms and Conditions of Use shall be subject to the following limitations:
(i) The PROVIDER’S total liability for all the items arising from providing the SaaS Services and the WORKMETER SOFTWARE use licence may under no circumstances exceed an amount equivalent to that received by the PROVIDER for providing the contracted SaaS Services. Under no circumstances may the CLIENT claim any compensation from the PROVIDER for any damages or harm that may be classified as consequential damages, loss of profits, loss of business, loss of business reputation or third-party claims against the CLIENT (even where they are public agencies or its own customers), or for any similar damages;
(iii) With regard to any breaches that take place when performing functions or services which have been provided by third parties subcontracted by the PROVIDER under Clause 5.1 contained herein, the PROVIDER’S total liability as a whole shall not exceed the total amount the PROVIDER can obtain for the breach in question committed by the subcontracted third party according to the agreements it has entered into in each case.
10. WORKMETER SOFTWARE Warranty
10.1 The CLIENT accepts that the contracted WORKMETER SOFTWARE is supplied “as is”. Hence, the PROVIDER does not in any event warranty that the functions it contains will meet the CLIENT’S needs or that the contracted WORKMETER SOFTWARE will function without any interruptions or errors. The CLIENT shall incur the full cost of all the services, repairs and necessary corrections to adapt the WORKMETER SOFTWARE to its needs.
10.2 The CLIENT accepts that the contracted WORKMETER SOFTWARE constitutes a work tool intended to complement, but not to replace, human labor.
10.3 In order to make use of the license granted for the contracted WORKMETER SOFTWARE, the CLIENT shall at all times fulfill the following obligations, along with others:
(i) Comply with the necessary technical specifications on networks, equipment, and terminals set forth in Appendix II attached hereto;
(ii) make backup copies of the data files generated by the continued use of the contracted WORKMETER SOFTWARE;
(iii) use the contracted WORKMETER SOFTWARE in accordance with the stipulations set forth in the User Manuals;
(iv) have a computer system that is in good working order;
(v) have an uninterruptible power supply installation equipped with a voltage stabilizer;
(vi) conduct access controls on the contracted WORKMETER SOFTWARE in order to prevent its manipulation by unauthorized people or those lacking expertise;
(vii) have periodic hardware and software maintenance services contracted;
(viii) prevent viruses and defective programs from being installed on the same hard disc;
(ix) adopt any preventive measure that can be reasonably implemented to prevent unauthorized use of the contracted WORKMETER SOFTWARE.
10.4 Under no circumstances shall the PROVIDER be liable for any operating errors or damage caused by the CLIENT breaching the obligations set forth in Clause 10.3 above or any other obligations which apply to the CLIENT according to the provisions envisaged in these General Terms and Conditions of Use.
10.5 Neither shall the PROVIDER be liable for any damages or harm that may be classified as loss of profits, loss of business, injury to image, or loss of business reputation.
10.6 Under no circumstances may the CLIENT claim compensation for any damages or harm caused by reasons beyond the PROVIDER’S control and, in particular, due to interruptions or failures of any kind that occur in (i) power systems; (ii) telecommunications networks; (iii) interconnection elements; and (iv) the CLIENT’S equipment and terminals.
10.7 Under no circumstances may the PROVIDER’S liability for any damages directly attributable to the use of the contracted WORKMETER SOFTWARE exceed the amount the PROVIDER has effectively received for providing the contracted SaaS Services during the twelve (12) months immediately preceding the claim as consideration for the use of the contracted WORKMETER SOFTWARE.
11. Personal Data Protection
11.1 The provision of the SaaS Services by the PROVIDER involves the need of gaining access to personal data. As the Data Processor of the data provided by the CLIENT (which shall be deemed the Data Controller for this purpose), the PROVIDER is obliged to fulfill the General Data Protection Regulation (GDPR), Organic Act 3/2018 on Data Protection and Guaranteeing Digital Rights (Spanish abbreviation LOPDYGDD) and any other legislation which applies in this regard.
11.3 The PROVIDER reserves the right to use the data resulting from the use of the WORKMETER SOFTWARE in a grouped and dissociated way for pseudonymization and/or anonymization processes, internal research purposes and to improve, test, and enhance the contracted WORKMETER SOFTWARE’S features and functions.
We use technical and business methods that provide a suitable level of security for any risks involved in personal data processing. Nonetheless, the security of information transmitted over the Internet cannot be ensured. The CLIENT and/or USERS are responsible for maintaining the security of their passwords or any other means of authentication used to gain access to password-protected resources.
13. Adaptations or New Versions of the WORKMETER SOFTWARE
13.1 The PROVIDER may make adaptations or new versions of the contracted WORKMETER SOFTWARE. The CLIENT expressly consents to the PROVIDER notifying them of any updates or patches that turn out to be necessary to ensure the proper operation and maintenance of the contracted WORKMETER SOFTWARE through notifications or alerts that may be viewed by ADMINISTRATORS or EMPLOYEES. Under no circumstances may the CLIENT claim any kind of compensation from the PROVIDER for any damages or harm that might be due to the contracted WORKMETER SOFTWARE malfunctioning as a result of the CLIENT failing to accept the aforementioned updates or patches.
13.2 If the PROVIDER deems it necessary to amend these General Terms and Conditions of Use as a result of any adaptation or new version of the contracted WORKMETER SOFTWARE, it shall duly give notice of the new General Terms and Conditions of Use, which the CLIENT must accept within the time limit set forth in the relevant notice, otherwise it shall be construed that the use licence governed by these General Terms and Conditions of Use has been terminated.
14. Duration and Termination of the SaaS Services and Licence of Use
14.1 The contractual relationship governed by these General Terms and Conditions of Use shall come into force as from the time the PROVIDER has received the CLIENT’S acceptance of the AGREEMENT and it shall have the duration set forth in said AGREEMENT, which may be extended for successive periods of equal duration without any constraints whatsoever, except where either of the parties gives the other fifteen‑days’ (15) prior notice of its intention not to renew the AGREEMENT before the end of the initial period it is in force or of any of its extensions.
14.2 As regards the free trial period, if any, these General Terms and Conditions of Use shall also apply to said period with the limitations, terms and conditions envisaged herein and as set forth for the trial period.
14.3 Without detriment to other circumstances set forth in these General Terms and Conditions of Use, the contractual relationship between PROVIDER and CLIENT shall be extinguished where any of the following causes comes about:
(i) Due to the term or any of its extensions coming to an end;
(ii) By the parties’ mutual agreement at any time;
(iii) As a result of the AGREEMENT’S termination by the PROVIDER based on a breach by the CLIENT of any of their obligations as provided by the AGREEMENT and/or these General Terms and Conditions of Use. This shall be without detriment to the PROVIDER opting to continue with the AGREEMENT or with the existing relationship with the CLIENT and to demand complete fulfilment of their obligations and require them to provide reparation for the harm caused by the breach in question in any of the aforementioned cases.
14.4 The CLIENT undertakes to deinstall and/or delete the contracted WORKMETER SOFTWARE from their computer equipment, along with any other copy, media or documents related to it (User Manuals, Associated Materials protected by intellectual or industrial property, etc.) within a maximum time limit of fifteen (15) calendar days from the extinction of the contracted WORKMETER SOFTWARE licence.
15. The CLIENT’S Liability for USERS’ Actions.
The CLIENT undertakes to ensure that any USERS who use the WORKMETER SOFTWARE know about, assume, accept and fulfil the obligations envisaged in these General Terms and Conditions of Use and assumes full liability for any possible breach of any of these obligations committed by ADMINISTRATORS or EMPLOYEES.
16. Force Majeure
The parties shall not be liable for a breach of the obligations set forth in these General Terms and Conditions of Use to the extent by which said breach is due to causes beyond the reasonable control of the party in breach, including, but not limited to: fires, floods, strikes, industrial conflicts or other social disorders, shortages or unavailability of fuel or electric power, unavailability or malfunction of communications networks, accidents, wars (whether declared or not), commercial embargoes, blockades, riots or insurrections.
Should any clause of these General Terms and Conditions of Use or of the AGREEMENT be declared totally or partially null and void or without effect, such nullity or lack of effect shall solely affect said provision or the part thereof which is null and void or without effect? The General Terms and Conditions of Use and the AGREEMENT shall continue to be in force and the provision or part thereof thus affected shall be deemed to have not been included. For such purpose, the General Terms and Conditions of Use shall solely lack validity with respect to the provision which is null and void or lacks effect, and no other part of these General Terms and Conditions of Use shall be annulled, invalidated, impaired, or affected by such nullity or lack of effect, save where said provision entirely affects these General Terms and Conditions of Use because it is an essential part of them.
18. Governing Law
Any dispute which may arise concerning the interpretation or performance of these General Terms and Conditions of Use, the AGREEMENT, or any of their possible amendments, as well as from any breach thereof, shall be interpreted in accordance with Spanish law.
19. Competent Jurisdiction
The CLIENT and the PROVIDER expressly submit themselves to the jurisdiction of the courts and tribunals of the city of Barcelona, Kingdom of Spain to resolve any disputes related to the provisions set forth in both these General Terms and Conditions of Use and the AGREEMENT and waive any other jurisdiction to which they may be entitled.
Service Level Agreement
- The SaaS Platform and the contracted WORKMETER SOFTWARE may be used by the CLIENT over the Internet 24 hours a day, every day of the year under the following conditions:
(i) 99% availability Mondays to Fridays;
(ii) 98% availability at weekends (Friday 24:00 hours CET to Sunday 00:00 hours CET);
(iii) The information will be stored for six (6) months at most in the “Client Area” assigned to the CLIENT by the PROVIDER. The CLIENT will have tools available in said area which will allow them to migrate information to their own environments.
- The PROVIDER shall not be liable for any interruptions in the availability of said information and service caused by reasons of force majeure or beyond its control.
The following elements or resources, among others, belonging to the USER, the WORKMETER SOFTWARE and the CLIENT are deemed to be beyond the PROVIDER’S control.
(i) Computer system;
(ii) Connection software;
(iii) Browsing software;
(v) Internet access using the medium available at both ends: switched telephone network, ISDN, xDSL, frame relay, cable, satellite or any other transmission or telecommunications infrastructure and the available bandwidth in them.
- The PROVIDER may temporarily interrupt the storage of information in its servers or the availability thereof to the CLIENT or USERS for security reasons, maintenance needs or due to the restructuring of the PROVIDER’S computer resources. Said interruptions –which shall not be taken into account to calculate the percentage availability set forth in point 1 above – shall be aimed at improving storage services and making information available over the Internet.
In any event, the PROVIDER shall make its best efforts to ensure such interruptions affect the CLIENT as little as possible. As far as scheduled stoppages are concerned, the PROVIDER shall duly give the CLIENT advance notice thereof where possible.
Technical requirements for networks, interconnection elements, equipment and terminals belonging to:
Microsoft Windows platforms (Windows 7 or above)
For Web service: Chrome 52 (or above)
Microsoft Windows platforms (Windows 7 or above)
1 GB of RAM
200 MB of free disk space
Minimum connection: 1 Mbps.
Open ports: 443 (SSL) and 80 (HTTP)