1. The Offer and these General Conditions of Contracting constitute the entire agreement between THE COCKTAIL and THE CLIENT and are immediately applicable to the services provided by THE COCKTAIL to its clients, as long as there is no framework or specific contract.
In the event of contradiction between the Offer and these General Conditions, these conditions will apply.
2. The purpose of the Offer is the services indicated in it, which in turn include, among others, the scope of the services and the indication of aspects outside the scope. The duration of the service will be determined by the date on which the services start. The term of the services is that indicated in the Offer and binds both parties equally; however, in no case shall THE COCKTAIL be responsible for delays attributable to THE CLIENT and/or third parties dependent thereon.
3. The payment term of the price set in the offer will be 30 days from the date of issuance of the invoice, by bank transfer. The instalments will be as follows, depending on the type of project:
- Project by deliverable instalments: 50% at the beginning of the project - 25% when half-complete - 25% at the end of the project.
- Times & Material projects with price/hour rates: monthly invoicing in arrears according to the report of hours performed.
- Blocks of hours: 100% at the beginning
- Projects in fee model: monthly invoicing in arrears.
4. The service prices do not include taxes in force at the time of invoicing or travel expenses, transport, living expenses or accommodation. If such expenses occur, they will be re-invoiced to the Client.
5. In the event of non-payment of the services for a period of 2 months or more, THE COCKTAIL will be entitled to suspend them automatically.
6. THE COCKTAIL may review the service prices and rates at any time after the expiry of the initial agreed period or in any of its extensions. Likewise, it may update the rates offered in accordance with the increases that the salaries and/or category of the resources necessary for the provision of the contracted services may experience at any time. Said increase will not have to adjust exactly to the increases in the CPI and may be higher or lower based on what was previously specified here.
7. THE COCKTAIL guarantees at all times that it will employ as many qualified professionals as are necessary for the satisfactory provision of the service, ensuring the replacement of resources by others equally qualified, in the event of losses. If THE CLIENT should request a change in the purpose of the service that implies an increase or decrease in the dedication of resources, they must make said request with 30 days’ notice.
8. The recruitment of THE COCKTAIL resources during the validity of the service and an additional period of 6 months entails a penalty of 12 times the monthly amount billed for the contracted profile.
9. During the provision of the services, THE COCKTAIL guarantees THE CLIENT the responsibility derived from their performance up to the full amount of the service price for direct and/or indirect damages, unless said responsibility cannot be limited by legal mandate. In no case will the parties be responsible for loss of profits. Neither will the parties be responsible in any case derived from unforeseeable circumstances or force majeure when these prevent the continuity of the obligations to which each party is subject.
10. If Artificial Intelligence (AI) tools are used in the project, given that the AI technology is under third-party ownership, THE CLIENT acknowledges that they will use it at their own risk and responsibility, relieving THE COCKTAIL from any liability or claim related to their use. In this sense, THE COCKTAIL is not responsible in any case for the uses, results or consequences derived from the use made by the CLIENT of the AI technology included in the project, nor from the programming of the technology algorithms used in the AI or its possible withdrawal or prohibition in the market due to regulatory changes.
11. All information disclosed by the parties in the services is considered confidential, except for that which may have been known prior to the Offer, that accessible to the public or that which is expressly indicated as non-confidential.
12. THE COCKTAIL transfers all the copyrights on the results of the project specified in the Offer to THE CLIENT, who may exercise and develop them in their own name, following payment of the services. If intellectual property or third-party licensed content that can be reused is incorporated into the work carried out, THE COCKTAIL will transfer said rights of use with the limitations of the licences of the original authors. Both parties reciprocally authorise the other to use their distinctive signs solely for the purpose of recognition as CLIENT and PROVIDER of the contracted services in commercial presentations and documents. The parties reserves the ownership of the methods, know-how and procedures used in the development and performance of the work, as long as they are not provided by the other.
13. If the service provided by THE COCKTAIL implies access to personal data by and for the CLIENT, THE COCKTAIL undertakes to observe and adopt all security measures for said treatment. Without prejudice to the CLIENT requiring the establishment of additional security measures, the security measures will be applied at least for the processing of access to personal data of THE COCKTAIL established in the following documents:
- In the case of THE COCKTAIL EXPERIENCE SLU, they will apply the measures of the DPA.
- In the case of THE COCKTAIL SA de CV, they will apply the measures of the Data Transfer Agreement.
- In the case of THE COCKTAIL SAS, the measures of Personal Data Transmission Agreement.
14. Guarantee: For those services which, by nature, could imply the establishment of a guarantee period, THE COCKTAIL will attend to possible bugs or errors in the service provided for a maximum period of one (1) month from delivery, provided that they have been reported by the CUSTOMER, who must previously investigate them to confirm that it is an error or bug caused by the code developed by THE COCKTAIL. If the Customer should require the preliminary investigation to be carried out by THE COCKTAIL, the cost of this service will be set out in a separate quote.
In the case of partial deliveries, the term of one (1) month is considered for each of the partial deliveries, calculating the number of days independently for each of
This guarantee does not apply in the event of: (i) a use of the delivered product in combination with tools not recommended or specified by THE COCKTAIL, (ii) any alteration or modification by the CUSTOMER of the development of the product not foreseen or authorised by THE COCKTAIL and, (iii) the use by the CUSTOMER of the services in a way not foreseen by the parties or not foreseen or applicable as described in the scope of the service
The guarantee of technological platforms or products not developed by THE COCKTAIL will be granted by the technology provider itself under its conditions.
15. These conditions will remain in force during the provision of the services and until their completion, except for those obligations whose nature means that they must continue in force beyond their termination. However, this agreement may terminated without just cause at any time, by irrevocable notification to the other party with 30 días notice before the date of effect.
16. Early termination of the services will produce the payment of the services actually provided and all reimbursable expenses, as well as the fulfilment of the obligations that take place between the parties until the effective date of termination.
If the project is executed under milestones or in deliverable instalments, the amount owed will be calculated from the criteria specified below, which will be applied in the indicated order and exclusively: (i) the recognition of the progress of the tasks carried out by the last project control point, or; (ii) the tasks carried out in accordance with the schedule presented by THE COCKTAIL team in its commercial or economic offer, or; (iii) the hours actually done.
17. If it is necessary to transfer information or establish a plan for migration after the services are completed, it will be the subject of a separate quote.
18. When the termination of the service is based on the breach of the obligations derived from the same, the aggrieved party may terminate it unilaterally, provided that compliance has been expressly requested in writing and the breach is not corrected within a maximum period of ten (10) days from the such request. In the event of disputes, the parties expressly waive any jurisdiction that may correspond to them and submit to the jurisdiction and competence of the Courts and Tribunals of the city of Madrid.
19. THE CLIENT’s representative acknowledges that they are sufficiently enabled to represent the acceptance of this offer.
20. This Offer is valid for 30 days for acceptance. Acceptance of the proposal is understood to also mean acceptance of these general conditions.