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TERMS AND CONDITIONS OF WEKALL SERVICES

TERMS AND CONDITIONS OF WEKALL SERVICES

Owned by William Loaiza Londoño (Unlicensed)
Mar 08, 2022
35 min read

Welcome to WeKall, Cloud Managed Business Phone Service (Switch)!

 

Thank you for using our WeKall line products and services. The Services are provided by STARTUP INVESTMENTS S.A.S. (hereinafter “STARTUP”) a simplified joint stock company incorporated under the laws of the Republic of Colombia identified with NIT.901.112.254-3, with main domicile in the city of Cali, Valle, Colombia.

 

By approving and electronically signing the 'Order of Service Form' (hereinafter the “SOF”) of WeKall services, you are accepting these conditions. Please read them carefully.

1. SERVICE(S) TO CONTRACT.

With the signing of the respective 'Order of Service Form' (SOF), THE CLIENT has decided to contract with STARTUP the services of the Business IP Telephony Platform in the Cloud “WeKall”. The SOF will be an integral part of these terms and conditions.

 

2. OBJECT.

The object of the contracted services consists of the provision of the services of the business IP telephony platform in the cloud "WeKall", which for the purposes of these conditions will be called THE SOLUTION, services that will be provided in accordance with the conditions established in the numeral "3" of these conditions, and technical support service on the WeKall platform, in accordance with the conditions established in the SOF. The support service will be provided in accordance with the provisions of these conditions (See number 10).

WeKall services may be provided and/or integrated with fixed telephone lines (SIP trunks) that will be provided by a third-party provider of local and national telephony, hereinafter referred to as "third party/provider".

 

PARAGRAPH: Alternative local and national telephone line. If the CUSTOMER chooses the alternative of contracting the service with a local and national telephone line, the fair use policies will be applied, among which are the following: i) They may not make more than 12,000 minutes on average per month of outgoing calls to the network public on unlimited plan; ii) The average number of incoming calls per month from the public network must be 4 calls for every 20 extensions in the unlimited consumption plan; iii) Contact center or call center users must purchase unlimited WeKall Contact Center plans; and iv) BPO, Call Center, Marketing or related companies may not use unlimited consumption for their agents, it may only be used by administrative personnel.

 

3. SCOPE.

The scope of the service will be established in the object of this contract and under the following conditions:

3.1 THE SOLUTION:

The scope of the WeKall service, understood as a cloud PBX SaaS-type solution, will be established for the service plan chosen by the CLIENT and contracted with the signature of the respective SOF, where the conditions and characteristics of the services that it includes the plan chosen by the client and those additional ones acquired by the latter. Current service plans are available on the website http://www.wekall.co . In any case, the conditions established in the SOF signed or to be signed by the CLIENT will prevail.

 

3.2 USES OF THE SERVICE: CUSTOMER RESPONSIBILITIES.

Except for terms of duration specific to certain conditions, obligations or responsibilities, during the validity of the service, THE CLIENT undertakes to: 3.2.1. The CLIENT will assume full responsibility for the accuracy, quality, integrity and legality of their data and the means by which they acquired their data; 3.2.2. You will use reasonable efforts, from a technical, administrative and commercial point of view, to prevent unauthorized access or use; 3.2.3. In the same way, THE CLIENT WILL REFRAIN FROM: 3.2.3.1 Making the services available to any person who is not authorized by THE CLIENT; 3.2.3.2 Sell, resell, rent or lease the contracted services; 3.2.3.3. Use the services to save or transmit material that constitutes violations or defamation or any other type of illegal or abusive material, nor save or transmit material that violates the privacy rights of third parties, 3.2.3.4. Use the Services to store or transmit malicious code; nor 3.2.3.5. attempt to gain unauthorized access to the services or their systems or networks related to the administration of THE SOLUTION by STARTUP; 3.2.4. THE CUSTOMER agrees not to use or allow the use of the contracted services, including by uploading, sending by email, publication, advertisement or transmission by any other means, of any material, including its content, its applications and third-party content, for any purpose that 3.2.4.1. threatens or harasses any person or causes damage or injury to persons or property; 3.2.4.2. involves the posting of false, defamatory, harassing or obscene material; 3.2.4.3 violates privacy rights or promotes bigotry and racism; 3.2.4.4. constitutes unsolicited mass email, "junk mail", "spam" or chain messages; 3.2.4.5. constitutes an infringement of intellectual property rights or other proprietary rights; or 3.2.4.6. in any way, that violates applicable laws, decrees or regulations; 3.2.5. The proper management of the database and its operation is the exclusive responsibility of THE CLIENT; 3.2.6. The use by THE CLIENT of THE WeKall SOLUTION is subject to limitations described in these conditions regarding the number of Users or Extensions authorized to use THE SOLUTION: 3.2.6.1 depending on the number of Users contracted by THE CLIENT, the number of users is limited ( Extensions) and the logins corresponding to the amount specified therein; 3.2.6.2. the login credentials of a User can be used only by the User designated by THE CLIENT until their account is deleted; and 3.2.6.3. a User account login may be reassigned to a new person only when replacing a previously authorized User who will no longer use THE SOLUTION. The CLIENT can designate as Users only people over whom it has sufficient control (contractual or otherwise) to guarantee compliance with these Terms, such as employees, consultants and contractors, as long as they are logged in with the same domain; 3.2.7. The CLIENT will be responsible for guaranteeing the Internet connection in any hardware and software used in relation to THE SOLUTION and all related configurations (Collectively called "Environment") comply with the minimum standards and technical requirements established by STARTUP; 3.2.8. The CLIENT agrees: 3.2.8.1 to grant access to STARTUP personnel in the physical facilities and other remote resources of THE CLIENT AND under its control, always with prior notification and accompaniment of IT personnel THE CLIENT, since STARTUP may reasonably request it to comply with its obligations derived from THE contracted SOLUTION; 3.2.8.2. make under its own responsibility and cost any adjustment to THE CLIENT's Environment that STARTUP finds reasonably necessary to satisfy the minimum technical requirements established by STARTUP for the provision of the SOLUTION service; 3.2.9. The CLIENT may use THE SOLUTION only for approved devices established in the Technical Requirements provided by STARTUP. For a correct operation of the WeKall Service, THE CLIENT must and will be responsible for having an internet upload and download service that ensures the following conditions: 3.2.9.1. Minimum speed of 80Kbps for an audio call and 512Kbps for a video call, 3.2.9.2. Latency for audio or video of a maximum of 120ms, and 3.2.9.3. Packet loss less than 5%; 3.2.10. THE CUSTOMER acknowledges and understands that the quality of the call depends not only on the specification and availability of the service, but also on the telecommunications network to which the other parties are connected; 3.2.11. The CLIENT may only assign one (1) extension per user, unless said extension is used with the same IP telephone by different users or through the functionalities offered by THE SOLUTION (Example: Huntgroup). Failure to comply with this condition will empower STARTUP to collect retroactively the monthly charges for each additional extension that would be applicable to the new assigned user, charges that must be assumed and paid by THE CLIENT with the respective applicable payment in accordance with numerals 6 and 7 of these terms and conditions. 3.2.12. THE CLIENT undertakes to pay the value of the SOLUTION on the date and under the conditions agreed in the SOF; 3.2.13. Take usual preventive measures in the computing activity and for the provision of the contracted service, in order to avoid eventual failures that cause any type of failure in the service provided by STARTUP; 3.2.14. Guarantee the availability of physical space, as well as the personnel required at all stages of the implementation and training process in accordance with the implementation methodology; 3.2.15. Execute the tasks that have been assigned within the project work plan; 3.2.16 Provide the data required by STARTUP stipulated in the project start-up act (Kickoff), which is an integral part of these terms and conditions, provided that it is signed.

3.3 PROVISION OF THE SERVICE: RESPONSIBILITIES OF STARTUP:

Once the service implementation process has been completed, STARTUP undertakes to: 3.3.1. Provide the service in accordance with the purpose of this contract; 3.3.2. offer remote technical support for the services acquired in accordance with the provisions of number 10 of these conditions; 3.3.3. will use all reasonable efforts from the technical point of view to make the purchased WeKall services available to THE CLIENT with a minimum availability of 99.5% or higher if stated in the SOF, other than during scheduled maintenance and repair, and to minimize the loss of data in the communications of THE CLIENT, except: 3.3.3.1. Any unavailability caused by circumstances beyond its reasonable control, including without limitation, acts of God or force majeure, government action, flood, fire, earthquake, civil unrest, acts of terrorism, strikes or other labor problems other than those that involve its employees, damages caused by THE CLIENT and/or its users, failures or delays of THE CLIENT's Internet service provider, Amazon Inc., and 3.3.3.2 Any unavailability due to unforeseeable failures in the service of the third party/service provider. local and national telephony chosen by STARTUP; 3.3.4. Deliver the technical functionalities in accordance with the contracted SOLUTION; 3.3.5. The CLIENT may choose and contract a plan in the SOF that includes call recordings in accordance with the following conditions: 3.3.5.1. STARTUP will choose the third party/cloud storage provider in accordance with the provisions of number 3.6 of these terms and conditions; 3.3.5.2. The recordings will be stored in the cloud server of the third party/provider during the term established in the object of this contract; 3.3.5.3. Once the contracted storage term has expired, STARTUP will deliver the recordings to THE CLIENT whenever he requests them in writing no later than within ten (10) days following the end of the storage term, or otherwise , the recordings will be deleted automatically. In the event that the recordings are requested, once they are delivered to THE CLIENT, STARTUP will proceed with the elimination of all of them; 3.3.6. STARTUP gives THE CLIENT the use of the WeKall Services through the approved and/or certified devices that appear in the compatibility matrix available in the technical requirements established by STARTUP; 3.3.7. IP-based communications have inherent limitations relative to traditional communication methods whether analog or otherwise. Although Wekall is designed to address and manage these limitations, STARTUP cannot guarantee that all communications transmitted to or from the Wekall platform (including Voice, Fax, and Text Messages) will be delivered without partial or complete data loss. 3.3.8. Constant monitoring of the platform 7x24 [DC1] (Core) and validation of the service operation to deliver the availability offered to THE CLIENT of 99.5%; 3.3.9. If THE CLIENT and/or a third party make modifications to THE SOLUTION through programs developed within the organization or through any technical mechanism, STARTUP ceases to be responsible for the proper functioning of THE SOLUTION, unless STARTUP has verified and approved that growth. When modifications are made to THE SOLUTION as a result of a support case and these modifications are in writing originating from STARTUP support area personnel, they are not considered internal developments, therefore this clause does not apply. If THE CLIENT needs to develop any type of software component that integrates with THE SOLUTION, it must be done through an integrator that does not interfere with THE SOLUTION and information will be requested from STARTUP for this development.

3.4 INFORMATION SECURITY AND CYBERSECURITY.

Taking into account that all the information of THE CLIENT is one of its most important assets, STARTUP will be subject to the following obligations: 3.4.1. STARTUP will be responsible for establishing and maintaining an information security program, including security of physical, digital, virtual, cyberspace elements independent of their transit and/or location, which must be designed to: 3.4.1.1. Guarantee the protection, completeness, availability and confidentiality of all the information to which access is made on the occasion of this contract and in accordance with its level of sensitivity. 3.4.1.2 Protect in advance against threats and/or risks that may affect the information to which access is gained through the contracted service, 3.4.1.3 Protect against unauthorized access or use of Confidential Information or information classified as personal data according to Law 1581 of 2012 or regulation that replaces, modifies or complements it, 3.4.1.4 Guarantee that all information is treated in accordance with the applicable security standards. STARTUP must develop procedures to manage any incident of unauthorized access and/or violation that threatens the security of the CLIENT's Confidential Information and/or personal data according to Law 1581 of 2012 or regulation that replaces, modifies or complements it and will notify it 3.4.1.5 STARTUP may modify its information security procedures, including physical security, at any time during the term of the contract, in accordance with the applicable regulations and good information security practices, immediately and in a timely manner. , as long as the conditions defined with THE CLIENT are met; 3.4.2. Have suitable security devices and tools that protect their networks and technological infrastructure; 3.4.3. Establish controls, tools and/or mechanisms for the secure deletion and destruction of information in accordance with the best practices of the industry and procedures and mechanisms for the return and delivery to THE CLIENT of all the information to which he had access during the validity of the contracted service; 3.4.4 For contracts that, within the provision of their service, receive, store, process, deliver or transmit personal data in accordance with the provisions of Law 1581 of 2012 and other regulatory decrees, or regulations that replace, modify or complement it, STARTUP declares to know, accept and comply with the regulation regarding personal data and maintain during the term of the contract the security and protection measures required by the respective control entities and the applicable current legal regulations; 3.4.5. STARTUP undertakes with THE CLIENT to have a plan and continuity duly documented on the provision of the service for which it was contracted. STARTUP undertakes with THE CLIENT to implement periodic testing processes for the continuity plans; 3.4.6. STARTUP undertakes to give immediate notice to THE CLIENT, about the occurrence of any event or circumstance that alters the normal development and/or execution of the contracted service. STARTUP undertakes to establish procedures, responsibilities and measures to inform THE CLIENT in an effective and timely manner, about the changes, alterations or modifications that are made to the information or to the elements involved in the development of this contract, without the corresponding authorization. Likewise, STARTUP undertakes to take the necessary corrective measures immediately when an unauthorized alteration or manipulation is detected; 3.4.7. During the validity of the contracted service, STARTUP undertakes to safeguard the database or databases delivered for that purpose by THE CLIENT and to use it exclusively for the execution of this contractual object. In the same way, STARTUP must be able to encrypt the information that it will receive from THE CLIENT and that it must safeguard, provided that the hardware or software used by THE CLIENT allows it. In accordance with the above, STARTUP will have perimeter security tools and tools that prevent data loss in order to avoid information leakage; 3.4.8. STARTUP must maintain reasonable and sufficient security controls during the execution of the services object of this contract. 3.4.9. With the termination of the contracted service, whatever its cause, STARTUP undertakes to return the database or databases with the security and delivery conditions agreed with THE CLIENT. Likewise, you must destroy any copy that you have created for the provision of the contracted services. 3.4.10. STARTUP will execute the procedures established in the information security policies implemented by the company as a main component of its accreditation and/or certification in ISO 27001 information security standards.

3.5 TECHNICAL REQUIREMENTS.

The technical requirements for the provision of the services of THE contracted SOLUTION will be those described on the website http://www.wekall.co and in the SOF: https://wekall.co/wp-content/uploads/2021/09/Requerimientos_tecnicos. pdf. [JJSG2]

3.6 THIRD PARTY PROVIDERS.

3.6.1. STARTUP can offer the implementation of the WeKall services contracted by THE CLIENT with local and national telephone services provided by a third party/provider in accordance with a separate service contract between THE CLIENT and said third party ("Third Party Services"); 3.6.2. STARTUP will choose the third party/provider for the provision of the local, national, international and cellular telephone service that will be integrated with WeKall, and the third party/provider for the cloud storage of recordings. In the same way, you can change or replace them at any time with prior written notification to THE CLIENT with a minimum of three (3) days in advance, as long as the conditions offered by the new third party/telephone or storage provider do not deteriorate the conditions and quality of THE contracted SOLUTION, and the same fixed numbering, unless THE CLIENT agrees to change it; 3.6.3. The contracted services will also be subject to the terms and conditions established by the third parties/providers. Thus, the adhesion contracts, terms and conditions of third parties/suppliers will be an integral part of these conditions; 3.6.4. The CLIENT authorizes STARTUP to invoice, collect and remit to the third-party service provider the amounts attributable to the Third-Party Services in accordance with the procedures applicable to the Services. The CLIENT acknowledges that: 3.6.4.1.STARTUP makes no representations or warranties with respect to, and will have no responsibility for, the services of third parties; 3.6.4.2. STARTUP will not be considered a reseller of third party services; and 3.6.4.3. THE CLIENT will seek only from the third-party service provider any resource related to it. 3.6.5. THE CLIENT will maintain and manage the PBX telephone lines that are currently their property and have contracted with other third-party providers other than STARTUP, without prejudice to the provisions of this clause. In this sense, THE CLIENT is responsible for managing the redirection of the numbers mentioned above to the DIDs provided for the WeKall platform (The SOLUTION).

3.7 MISCELLANEOUS.

3.7.1) If there are operating problems in the contracted WeKall Service, STARTUP must provide support for their solution, in accordance with the scope established in these conditions and in the SOF regarding technical support; 3.7.2) THE CLIENT will provide timely access at the agreed time and to all the areas that are required for the execution and performance of the work object of THE contracted SOLUTION (including access to computer centers, access to the root account of the third party / supplier, etc.) following the security procedures given by THE CLIENT; 3.7.3) STARTUP will make commercially reasonable efforts to carry out the Implementation of THE SOLUTION contracted by the Client as soon as possible after the signing of the SOF by the parties and in accordance with the conditions established therein. The implementation services will be provided remotely unless the plan chosen and contracted by the CLIENT with the SOF provides for on-site implementation; 3.7.4. STARTUP guarantees the encryption of the data that is transmitted through THE SOLUTION and to carry out all the controls expressed in Section 3.4 Information Security and Cybersecurity. 3.7.5) THE CUSTOMER ACKNOWLEDGES THAT THE USE OF THE CONTRACTED SOLUTION REQUIRES THE TRANSMISSION OF ELECTRONIC DATA THROUGH THE INTERNET AND VARIOUS OTHER NETWORKS WHICH ARE NOT OWNED OR UNDER THE CONTROL OF STARTUP, AND THAT STARTUP CANNOT GUARANTEE THAT IT WILL NOT BE ACCESSED TO SUCH TRANSMISSIONS BY UNAUTHORIZED THIRD PARTIES. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, STARTUP SHALL NOT BE LIABLE FOR ANY DELAY, LOSS, ALTERATION OR INTERCEPTION OF CUSTOMER DATA OR CONTENT IN THE COURSE OF ITS TRANSMISSION THROUGH AND BETWEEN NETWORKS NOT OWNED BY STARTUP OR ARE OPERATED BY IT; 3.7.6) THE SOLUTION may have technical limitations in countries with legal restrictions on internet access.

4. DELIVERY AND IMPLEMENTATION TIME.

STARTUP undertakes to deliver and implement THE SOLUTION within the term established in the SOF. However, it may be extended with the prior agreement of the parties at least five (5) days prior to the expiration date of the term.

 

Once the cloud service has been activated and its activation has been notified to the registered email, the service will be understood to be activated and accepted by the customer.

 

5. DURATION AND AUTOMATIC RENEWAL.

The contracted SOLUTION will have a duration term equal to that established in the respective SOF.

 

5.1 AUTOMATIC RENEWAL.

The services will be automatically renewed for an equal term as follows:

 

a) The WeKall services contracted with a monthly duration of less than one (1) year will be automatically renewed if fifteen (15) days before their expiration date, none of the parties expresses opposition to its renewal.

 

b) The WeKall services contracted with a duration greater than one (1) year will be automatically renewed if sixty (60) days before the initial expiration date or any of its extensions, neither party manifests itself against its renewal.

5.2 AVAILABILITY OF THE INFORMATION AT THE END OF THE SERVICE.

Once the service has ended for any of the reasons established in these terms and conditions, the CLIENT will have a term of ten (10) business days to withdraw or request the information of their property that is housed in the storage system in the WeKall cloud. Once this term has ended, STARTUP will be empowered to delete any type of information that the CLIENT has hosted in THE SOLUTION in the cloud.

 

6. CONTRACT VALUE.

As consideration for the services, THE CLIENT must pay STARTUP the amount of money established in the SOF in accordance with the terms and conditions stipulated therein. Payments will be made prior to the Law withholdings, which are accepted by the CLIENT.

 

6.1 NEGOTIATED TRM

Unless otherwise provided in the SOF, when the services are agreed in US dollars, the value of the contract will be settled at the TRM of the billing date.

 

6.2 BILLING

STARTUP will generate the corresponding invoices and THE CLIENT will pay STARTUP the total price indicated in the SOF, in the terms stipulated therein. The invoice must meet the requirements contemplated in the Tax Statute and its filing will be made by STARTUP by mail sent to the electronic address provided by THE CLIENT for this purpose.

6.3 ANNUAL INCREASE

Once the automatic renewal referred to in numeral 5.1 of these conditions has occurred, the monthly value of the contracted service will have a percentage increase equivalent to the increase in the CPI (Consumer Price Index) for each year it is valid.

 

6.4 VALUE OF SERVICES NOT INCLUDED.

When the CLIENT requires any service that exceeds the scope of the contracted services, STARTUP must quote in advance, submit for approval and will charge them separately at the rate agreed between the parties through the respective addendum.

 

7. DELAY IN THE PAYMENT OF THE VALUE OF THE SOLUTION.

7.1 DELAY IN PAYMENT.

Failure by the CLIENT to make two (2) or more recurring payments for the services of the contracted SOLUTION will entitle STARTUP to suspend said service, prior written notice two (2) business days in advance to THE CLIENT, and/or to terminate the contracted services with just cause and unilaterally. Likewise, THE CLIENT will assume all the additional costs that are generated due to the reactivation of the service, which will not exceed the value equivalent to a recurring payment of the service. In the case of suspension of the service due to lack of payment, STARTUP must re-establish the service within a maximum period of three (3) business days following the effective confirmation of the respective payment.

7.2 DELAYS ATTRIBUTABLE TO THE CUSTOMER IN THE INSTALLATION.

The additional costs that are generated derived from the non-execution of the installation for reasons attributable to THE CLIENT must be assumed by THE CLIENT and those that arise due to causes attributable to STARTUP will be assumed by the latter.

 

7.3 DEFAULT INTEREST.

Late payments will not be allowed, if this occurs, interest will be incurred at the maximum late payment rate contemplated in commercial law.

 

7.4 PENALTY FOR TERMINATION OF SERVICE DUE TO DEFAULT PAYMENT

In the event of default by the CLIENT of two (2) or more recurring payments for the services of the contracted SOLUTION, the CLIENT undertakes to STARTUP to pay an amount equivalent to two (2) recurring payments or twenty (20%) ) of the total value of the service, whichever is greater, value that can be charged executively in accordance with the provisions of article 422 of the General Code of Process, THE CLIENT renouncing from now on the constitution in default.

 

7.5 ADDITIONAL COSTS AND EXPENSES

The CLIENT shall bear the additional costs and expenses that may arise in the following situations: 7.5.1. Failure to comply with any of the responsibilities assigned to him, which must be duly proven; 7.5.2. Modifications to the schedule that originate from delays in the execution of activities assigned to THE CLIENT and/or suspension of the contracted services due to late payments; .7.5.3. Reconnection of the SOLUTION; 7.5.4. Additional consulting, training, programming and/or support activities that are not included in the Implementation Schedule; 7.5.5. Request for additional equipment, hardware or software to that contemplated in the SOF and established in these terms and conditions.

8. EIGHTH: STARTUP OBLIGATIONS.

STARTUP's obligations are: i) Provide the service in accordance with the specifications established in the SOF, the object and scope of the terms and conditions set forth in these terms and conditions; ii) Provide the technical support service according to the specifications established in these conditions and those presented in the SOF; iii) Maintain the confidentiality of the confidential information to which you have access by virtue of the contracted service; iv) Comply with the duties established in these conditions and in the SOF; v) Provide the service for the duration of the contract; and vi) Those established and in charge of STARTUP in numeral 3.3 of these conditions.

 

9. OBLIGATIONS OF THE CUSTOMER.

The CLIENT's obligations are: i) Pay the total value of the contracted services on the date and under the conditions agreed in the SOF; ii) Acquire or have the technical infrastructure (base hardware and software tools, internet, networks, workstations, etc.) necessary for THE SOLUTION to run properly and the other technical requirements communicated by STARTUP and established by the SOF; iii) Upload, upload or submit the information you wish to share; iv) Provide the internet with the necessary bandwidth for the use of THE SOLUTION in any computer or mobile device that has access to it; v) Those established and charged to the CLIENT in number 3.2 of these conditions.

 

10. SUPPORT.

THE CUSTOMER has the right to access the support services provided by STARTUP only for the services that make up THE SOLUTION contracted in accordance with the service level agreements (ANS) established and available at http://www.wekall.co , and according to the service and support plan chosen by the client and approved in the respective SOF https://wekall.co/wp-content/uploads/2022/01/MODELO-DE-OPERACION-DEL-SERVICIO-WE.pdf [JJSG3 ]

 

Saturdays, Holidays and Sundays are excluded. Service value per hour (minimum charge is per hour), USD$250.00 in case of urgent requirement.

 

  • Platform maintenance processes may be notified between 10 and 15 days prior to the activity and will be between 7:00 pm and 5:00 am. In case of identifying that the maintenance process corrects critical failures of the platform, it can be notified and executed the same day.

11. TERMINATION.

The contracted services will be understood to be terminated in any of the following cases: A) By the completion of the term of the contracted service, including its renewals; B) By mutual agreement between the parties, for which it must be stated in a written document; C) Due to events of force majeure or fortuitous event duly proven, in which case the responsibility will be established in accordance with current legal regulations; D) Due to breach by any of the PARTIES of the essential obligations arising from this contract and that were not remedied by the party in breach within a term of fifteen (15) business days; E) Due to non-payment of two (2) or more recurring payments by the CLIENT, only when STARTUP so decides; F) The others stipulated in other clauses of this document, the respective commercial proposal, in the terms and conditions of each contracted service, or in the Law.

 

12. CONFIDENTIALITY OF INFORMATION.

THE PARTIES undertake to keep the secrecy that corresponds to strictly confidential information, on all documents, information, knowledge in general, any data related to the company or the business of the other party that in the development of the service ( s) contracted by THE CLIENT acquire or acquire; or that which results or is known on the occasion of the sessions in which the object will be fulfilled, on the understanding that it is part of its industrial and technical secret and cannot be disclosed, manipulated for its own benefit or that of third parties, in any event, without the prior and written authorization that the owner of the information imparts to you regarding each particular topic. THE PARTIES undertake directly, and assume the responsibility, that the people they contract or link for the development of the service(s) contracted by THE CLIENT, also keep the secrecy required by said confidential information.

 

THE PARTIES accept and declare that all their confidential information is the exclusive property of each of them and that it has been or will be disclosed solely for the purpose of allowing full compliance with the obligations derived from the contracted service(s). (s) by THE CLIENT, which is why any information provided, prior to accepting these conditions, is considered confidential information and will be subject to its terms. Likewise, in accordance with what is stated in this clause, THE PARTIES are obliged to: A) Not make available to any third party or disclose the confidential information that is conferred by reason of trust and the development of the service(s) hired(s) by THE CLIENT; B) Do not use confidential information directly or through third parties, in matters, businesses and/or activities of any kind, other than those agreed and/or previously authorized by the party that owns the information through a written document signed by the Representative. Legal; C) Do not edit, copy, compile or reproduce by any means the confidential information; except for the one that has been authorized by these conditions or is subject to them; D) Return at the time of termination of each contracted service to the other party, all the confidential information in their possession corresponding to the service that is no longer provided, especially but not limited to technical concepts, assessments, diagnostic results or conclusions that are made, whether in written documents, magnetic media or in any other medium and also completely remove them from the equipment owned by you or your employees, except for that which has been authorized by these conditions or is the subject of the same; E) Employ at least the same standard of care to maintain the confidentiality of the other party's proprietary information as that used to maintain the confidentiality of its own equally important information; F) The non-disclosure obligations of the respective commercial proposal and its annexes will remain in force with respect to confidential information for a period of five (5) years after the termination of the services object of the same; G) If any of the parties fails to comply with this obligation, it will incur in this way the corresponding civil and criminal sanctions for violation of professional and commercial secrecy, and will assume responsibility for all the damages, losses, expenses and costs generated by the wrong or improper handling of confidential information or the violation of the confidentiality and confidentiality obligations established in this document, apart from the fact that the party that owns the information may collect the penalty clause, even periodically and successively, for each individual act of breach of confidentiality of information referred to above or by the continuity of the same act.

The obligations established in this clause do not apply to information that: H) The party that owns the information regularly makes it available to third parties without disclosure restrictions; I) Is or becomes public domain without there having been any act or omission of any of the parties; J) It is disclosed as a result of a valid judicial or administrative order.

13. OWNERSHIP OF THE INFORMATION:

Except as otherwise provided in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, in the Proprietary Information, Content, or any part of the other's Intellectual Property. As established by the parties, THE CLIENT owns all the Intellectual Property Rights of the Data of THE CLIENT, and STARTUP and the third-party providers, as appropriate, own all the Intellectual Property Rights of the Services. 14.1. All rights, title and interest in the Wekall Platform, including intellectual property rights, shall remain the property of STARTUP and/or the third party/provider and belong exclusively to STARTUP and/or the third party/provider as applicable; 14.2. THE CLIENT may not, nor will it request or allow third parties: 14.2.1. Remove or modify the trademarks of any program or the notices referring to the property rights of STARTUP and/or the third party/provider; 14.2.2. make the programs or materials derived from the services subject to these conditions (except for their content and their applications) available to third parties in any way for use in the third party's business operations (unless such access is expressly permitted by STARTUP and/or the third party/provider); 14.3. The CLIENT grants a royalty-free, worldwide, limited, non-assignable and non-sublicensable right and license to STARTUP and the third party/provider, and authorizes them to copy, duplicate, transmit, process and use their data and the content of THE CLIENT solely to provide WeKall services; 14.4. All the content of THE CLIENT that is published, accessed, shared or stored through WeKall is the sole responsibility of THE CLIENT. STARTUP does not offer representation, guarantee or incentive of any kind with respect to the content of THE CLIENT, including, among others, any guarantee of accuracy or completeness, merchantability or suitability for a particular purpose, or with respect to the non-infringement of trademarks, patents, copyrights, mask protection rights or any other intellectual property rights, or other rights of third parties or entities; 14.5. STARTUP will make all reasonable technical, administrative and commercial efforts to guarantee the confidentiality of the content and data of THE CLIENT. STARTUP will not be liable to THE CLIENT in the event that third parties have access to the content or data of THE CLIENT when the latter has provided such access.

 

14. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS.

STARTUP, its products and/or services and its logos or designs are trademarks owned by STARTUP INVESTMENTS S.A.S., a subsidiary company of STARTUP INVESTMENTS INC., the first company registered in the city of Cali (Valle), Colombia. Any information, concepts, materials or systems related to the design and operation of the SOLUTION and/or the business IP telephony platform in the cloud "WeKall" of STARTUP and its Servers, or that was developed by STARTUP to provide the Services object of the this agreement, including, but not limited to, any formats, configurations, computer programs or software, text, programming codes, graphic elements, designs, logos, images, illustrations, photographs, sound, videos, data, information or HTML text /XML, included or contained in the Internet page(s) of “http://wekall.co ” and/or in the STARTUP Server(s) and any industrial secret, know-how, methodology and processes related to the "WeKall" Services or other Services offered by STARTUP, will be the sole and exclusive property of STARTUP, also including, but not limited to, all copyrights, trademarks, distinctive signs, patents, design s and drawings, industrial secrets, and any other industrial or intellectual property rights inherent therein (together the "STARTUP Materials"). The CLIENT may not use or take advantage of the STARTUP Materials in any way, unless there is a written agreement signed between the parties.

15. REPRESENTATIONS AND WARRANTIES

STARTUP (a) represents and guarantees the CLIENT that STARTUP has the capacity and powers to enter into and fulfill its obligations in accordance with these terms and conditions; (b) warrant that you will render implementation services and professional services in a professional, well-executed, skillful and careful manner; (c) guarantees that the WeKall Services will substantially adjust to the plan chosen by THE CLIENT and contracted with the SOF; and (d) guarantees that the WeKall Services will perform according to the service levels established in the plan contracted by the CLIENT and under the conditions established in these terms and conditions, the commercial proposal and in the SOF. For the avoidance of doubt, the above statements and warranties do not apply to any trial services, Beta services, or unsupported services.

 

16. NO WARRANTY

THE SERVICES CONTRACTED BY THE CUSTOMER WILL BE PROVIDED IN ACCORDANCE WITH WHAT IS ESTABLISHED IN THE SOF, ITS AND IN THESE TERMS AND CONDITIONS. THEREFORE, STARTUP DOES NOT GUARANTEE THAT THE FUNCTIONS OF THE SERVICES MEET CUSTOMER REQUIREMENTS NOT SPECIFIED IN THE DOCUMENTS INDICATED ABOVE. EXCEPT AS PROVIDED IN THE STABILITY TERMS OF EACH SERVICE/PRODUCT, STARTUP DOES NOT GUARANTEE THAT THE OPERATION OF EACH OF ITS SERVICES/PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, AND THEREFORE, DISCLAIMS ANY TYPE OF LIABILITY DERIVED THEREOF. EXCEPT OTHERWISE PROVIDED IN THE SOF, STARTUP DOES NOT WARRANT THAT THE PRODUCTS AND/OR SERVICES WILL COMPLY WITH APPLICABLE REQUIREMENTS, STANDARDS, LAWS OR REGULATIONS OR ESTABLISHED BY LICENSING AGENCIES, INCLUDING WITHOUT LIMITATION THE LAWS OF ANY GOVERNMENT OR INTERNATIONAL REGULATION.

17. EXCLUSION OF LIABILITY.

The function of STARTUP is limited solely and exclusively to the fulfillment of the contracted service(s). Therefore, STARTUP is not responsible for the delay in the installation, configuration, start-up and/or completion of the implementation of the service(s) or the provision thereof if THE CLIENT does not have the infrastructure required for the implementation. , configuration, start-up and regular operation of the SOLUTION, without prejudice to the fact that the obligation to meet the requirements is the responsibility of a third party, or if THE CLIENT fails to comply with any of the obligations for which it is responsible derived from the contracted services. Additionally: A) STARTUP undertakes solely and exclusively to provide the contracted services, therefore, any type of service requested outside of what is established in the commercial proposal or for any component that is not stipulated in the scope of the same, will be invoiced. completely independent of the execution of the contracted services; B) STARTUP will NOT be responsible for any type of violation suffered by the security or any component of the technological infrastructure of THE CLIENT by third parties for fraudulent practices or causing any type of damage to it. Therefore, it is the absolute and exclusive responsibility of THE CLIENT, to take all the necessary measures and/or that it finds convenient to guarantee the security of its technological infrastructure; C) STARTUP does NOT assume any responsibility for the damages caused by THE CLIENT's staff or third parties due to fraudulent practices or configurations, interventions or violations, where THE CLIENT's technological infrastructure is affected in any way; and D) THE CLIENT acknowledges that STARTUP does not control the transfer of data through communication systems, including the Internet, and that the services may be subject to limitations, delays and other problems inherent to the use of said communication systems. STARTUP is not responsible for delays, non-shipping, or other damages resulting from such problems. STARTUP is not responsible for problems related to the performance, operation or security of the services arising from the content of third-party applications / providers. STARTUP makes no representations or warranties regarding the reliability, accuracy, completeness, correctness, or usefulness of third party/provider content, and assumes no liability arising out of or as a result of third party/provider content.

17.1 OBLIGATION OF PAYMENT.

Being STARTUP exempt from responsibility for the delay in the completion of the installation, configuration and start-up of the contracted services within the period established for it, or for the cessation of the provision of the contracted services, the payment will continue in progress. of THE CLIENT in favor of STARTUP as indicated in the circumstance and term of this contract, unless there is a written agreement made by the parties.

 

18. LIMIT OF LIABILITY

STARTUP's liability under this agreement, regardless of the form or class of action, shall not exceed the amounts paid by the client under this agreement in the twelve (12) months preceding the lawsuit or claim. STARTUP will not be liable for any special, indirect, consequential or incidence damages arising from the execution of this agreement and/or the service provided, regardless of whether the party has been notified of the possibility of such damages. These limitations of liability shall not apply to liability for death, personal injury of a physical nature, or damage to tangible property caused by STARTUP's negligence or willful misconduct.

 

19. ASSIGNMENT.

The service contracted by THE CLIENT may not be assigned by the latter, either totally or partially, without prior written authorization from STARTUP. STARTUP may assign the service contracted by THE CLIENT at any time to any of its controlling, controlled, subsidiary companies or part of the business group, prior notification by email, to the mail registered by THE CLIENT, with notice of no less than five (5 ) business days.

 

20. AGREEMENT CLAUSE.

The parties agree that the differences that may arise on the occasion of the celebration, interpretation, execution, fulfillment and termination of this contract and documents arising from it, will be submitted to the decision of an Arbitration Court, made up of a (1 ) arbitrator for claims of lesser amount or three (3) arbitrators for claims of greater amount, the latter case in which one of them must be a specialist in technology issues, who will be lawyers chosen by common agreement between the parties and, in the absence of agreement, its members will be appointed by the Chamber of Commerce of the city of Cali, at the request of either party. The Court will rule on law. The appointment, requirement, constitution, operation and other aspects of the Arbitration Tribunal will be governed by the legal provisions that regulate the matter. The Court will function in said city, in the Conciliation and Arbitration Center of the Chamber of Commerce. All the costs of the arbitration process, including the fees of the arbitrators, will be borne equally by the parties and when the arbitration award is issued, the losing party will reimburse the winning party for the costs that it should have incurred.

21. LABOR AUTONOMY AND INDEPENDENCE.

The services contracted by the CLIENT constitute one of the main activities of STARTUP as the independent that it is, which are developed at its own risk and means. For this reason, in the development of the activities, it will have full freedom and technical, administrative and financial autonomy in the execution and fulfillment of these and at no time is any work relationship established between THE CLIENT and the people that STARTUP links for the execution of the services). There will be no place in charge of THE CLIENT to the payment of salaries, social benefits or other rights that protect subordinate workers or dependents of STARTUP.

 

Consequently, STARTUP will assume at its own risk, the labor obligations or of any other type that it requires for the provision of the service(s), directly employing its own employees, subcontractors and specialized technicians and declaring that, in order to effects of the provision of services, acts as the sole employer or intermediary of the personnel used.

 

22. MODIFICATIONS.

STARTUP may unilaterally modify these terms and conditions at any time, provided that it notifies by means of a notice on its website http://www.wekall.co , to the CLIENT's registered email, or through the WeKall Service application, about the modifications to these terms. Or your addictions. The modifications will not be applied retroactively and will take effect fifteen (15) days after their publication. However, the modifications that deal with the functionalities of THE SOLUTION, or those made by changes in the applicable legislation, will enter into force immediately. If THE CUSTOMER does not accept the modified conditions, he should cancel the use of the Service(s) that he has contracted with STARTUP, since these are mandatory for the parties. UNLESS AGREEMENT BETWEEN THE PARTIES, IN NO CASE SHALL STARTUP HAVE THE RIGHT TO REDUCE OR IMPROVE THE FUNCTIONALITIES OF THE CONTRACTED SERVICES DURING THE VALIDITY OF THE CONTRACT, AND ACCORDING TO THE PLAN CHOSEN BY THE CUSTOMER AND CONTRACTED BY SIGNING THE RESPECTIVE SOF.

 

23. ANTI-BRIBERY AND ANTI-CORRUPTION COMMITMENT.

The parties declare that they are aware that in accordance with local and international anti-corruption and anti-bribery provisions, it is prohibited to pay, promise or authorize the direct or indirect payment of money or any other element of value to any public servant or government official, political party, candidate, or to any person acting on behalf of a public entity when said payment involves the corrupt intention of obtaining, retaining or directing business to any person to obtain an illicit advantage (“Anti-Bribery and Anti-Corruption Regulations of the Public Sector”). Likewise, the parties acknowledge the existence of similar regulations regarding bribery in the private sector, understood as the bribery of any private person or private company to obtain an undue advantage (“Anti-Bribery and Anti-Corruption Regulations of the Private Sector” and together with the Public Sector Anti-Bribery and Anti-Corruption Regulations, the “Anti-Bribery and Anti-Corruption Regulations”). In consideration of the foregoing, the parties undertake to know and abide by the Anti-Bribery and Anti-Corruption Regulations, refraining from carrying out conduct that violates the aforementioned Anti-Bribery and Anti-Corruption Regulations. Failure to comply with the obligation contained in this clause will constitute cause for immediate termination of this agreement without any breach and without any compensation.

24. MALICIOUS CODE.

STARTUP undertakes unconditionally and irrevocably to guarantee that the source code developed for the provision of the WeKall service, as well as the information and documentation (including images, photographs, animation, video, audio, music, text and other elements that are part of the software) delivered to THE CLIENT, are free of Malicious Code. Likewise, STARTUP undertakes to take the necessary measures to control the Malicious Code, which include, but are not limited to, implementing and verifying that policies, standards, procedures and software for the protection and detection of Malicious Code work properly. The commitments and obligations assumed by STARTUP in this clause will be subject to the applicable legal requirements.

 

25. PROTECTION AND PROCESSING OF PERSONAL DATA

The Parties agree that, for the purposes of this Agreement, THE CLIENT shall be understood as the Data Controller and STARTUP as the Data Controller. In this virtue, for the purposes of processing personal data and in particular sensitive data by STARTUP, the following rules are contemplated: A) REGULATORY COMPLIANCE. The parties are obliged to comply with the provisions of the current Personal Data Protection Law, provided for in Law 1581 of 2012 and its regulations compiled in Decree 1074 of 2015, as well as in the others that add, modify or complement it. ; B) RESPONSIBLE FOR THE INFORMATION. The CLIENT, who acts as the person responsible for the Information, will assume the obligations established in article 17 of Law 1581 of 2012, and therefore, declares that he has the authorization for the Processing of personal data by its Holders, in such a way that STARTUP can carry out the Treatment legitimately, within the framework of the obligations of this contract.; and C) IN CHARGE OF THE TREATMENT. STARTUP, who carries out, on behalf of THE CLIENT, the processing of personal data for which THE CLIENT is responsible, is considered to be in charge of the Treatment, therefore, it may carry out the activities of collection, storage, use, circulation and deletion, as appropriate. in accordance with the purpose of this contract and will be obliged to THE CLIENT and/or the owner of the data to comply with the obligations of those in charge of processing personal data established in Law 1581 of 2012 and its regulatory decrees.

 

26. OPEN SOURCE

The services of the WE line, among which are Wekall and Weprotect, provided by STARTUP and contracted by THE CLIENT, in one or more of its components, may contain open source licenses based on GPL, LGPL AND AGPL. The terms and conditions of each of the aforementioned open source licenses are available online at the following links: https://www .gnu.org/licenses/gpl-3.0.en.html (GPL); GNU Lesser General Public License v3.0- GNU Project - Free Software Foundation (LGPL); and GNU Affero General Public License- GNU Project - Free Software Foundation (AGPL).

27. DIFFERENCES BETWEEN THE CONTRACT, THE ANNEXES AND THE PROPOSAL.

If there are contradictions between the aforementioned documents, the provisions of these terms and conditions and the annexes will always prevail; If there are differences between the latter, the provisions of this document will prevail.

 

28. SOURCE OF INCOME.

The parties declare that their income comes from legal activities, that they are not negatively registered in national or international money laundering prevention lists, that they do not fall within one of the two categories of money laundering (conversion or movement) and that consequently, they are obliged to respond to the other party for all the damages that may be caused as a consequence of this affirmation. In the same sense, it will respond to third parties. They also declare that their conduct conforms to the law and ethics and declare that good name and reputation are key elements in the execution and execution of this contract, which is why they agree that the fact that these and/or their legal representatives, its main shareholders or partners and/or directors are included in an investigation, report or list of Police and/or National Judicial or Foreign Authority for suspicion of being involved in money laundering, drug trafficking, white slavery , pimping, child pornography, embezzlement, concussion, kidnapping, extortion, belonging to and/or dealings with illegal armed organizations or criminal organizations of any kind, arms trafficking, terrorism, crimes against humanity or crimes against freedom, integrity and education sexual, will be sufficient reason to terminate this contract, without this generating any type of compensation in favor of the other party. you.

 

29. PREVENTION OF MONEY LAUNDERING AND FINANCING OF TERRORISM.

THE PARTIES, using the means and information to which they have access, have implemented the measures aimed at preventing the operations that derive from or are related to the execution of this contract, from being used without their knowledge and consent as instruments for concealment , management, investment or use in any form of money or other assets from criminal activities or to give the appearance of legality to these activities. In this sense, THE PARTIES know and accept that any of them may unilaterally and immediately terminate this contract, without there being any payment of compensation in those cases any of them become: A) Sentenced by of the competent authorities for crimes of drug trafficking, terrorism, kidnapping, money laundering, financing of terrorism, administration of resources related to said activities or in any type of judicial process related to the commission of the aforementioned crimes. B) Included in lists for the control of money laundering and financing of terrorism administered by any national or foreign authority, such as the list of the Office of Foreign Assets Control - OFAC, the UN list and other related lists with the issue of money laundering and financing of terrorism.

30. PENALTY CLAUSE

If any of the parties (STARTUP or the CLIENT) terminates this contract without just cause and unilaterally, or simply fails to comply or delays the fulfillment of the obligations derived from this contract, it will pay the other party that has complied, or has raided to comply, by way of penalty, an indemnity equivalent to twenty percent (20%) of the total value of this contract, which may be made effective through an executive process, without the need for constitution in default, which both parties waive in reciprocal benefit, being executive title the present contract. The foregoing, without prejudice to making the obligations contracted by the non-compliant party enforceable.

 

31. ELECTRONIC SIGNATURE

By signing this document, THE PARTIES declare and undertake: A) That they have agreed to sign this contract using the electronic signature mechanism, which meets the requirements set forth in Law 527 of 1999, its regulatory decrees and others regulations that regulate or modify it. B) That they may use data messages and emails (PDF format), as a valid notification and communication mechanism between the parties for everything related to this document. C) That they expressly waive the right to repudiate or disregard the validity and/or content of the document due to the fact that it was signed through an electronic signature. D) That the information and data recorded in the messages or emails that have been exchanged by virtue of this document will be admissible before any authority, whether judicial, administrative or of any kind, as well as before any person, and will constitute full proof of the facts and information that they contain, unless evidence to the contrary is provided. E) That the signatures used in the document are reliable, complete and binding to bind them legally and contractually in relation to their content and have the same validity and the same legal effects of the handwritten signature in accordance with Law 527 of 1999, its decrees regulations and other rules that regulate or modify it. F) Maintain control and exclusive custody of the signature creation data. G) Guarantee that the signature creation data is not used improperly or in an unauthorized manner. H) Give immediate notice to the other Party about any event that gives rise to the signature creation data being questioned, repudiated and/or questioned, threatening their reliability and integrity.

 

32. ENTIRE AGREEMENT

The documents referred to in numeral 33 of these terms constitute the entire agreement made between the parties and replace and extinguish all drafts, agreements, arrangements, and understandings prior to this made between the parties and/or their users, regardless of whether these were oral, written and/or related to this matter or the contracting of the Services.

33. ANNEXES.

The following are an integral part of these conditions: A. The SOF (Service Order Form / in Spanish, Order of Service); B. Service level agreements (ANS) available at http://www.wekall.co ; C. The kickoff or project initiation certificate; D. The modifications to the services of THE contracted SOLUTION agreed between the parties and that are recorded in writing; and E. The adhesion contracts, terms and conditions of the third party/provider for hosting the database.

 

34. POLICIES

In case of being established in the SOF, STARTUP is obliged to acquire and maintain in force during the duration of the contracted SOLUTION service, the compliance policies established in the aforementioned SOF.

 

35. EXECUTIVE MERIT.

For all purposes, and because they contain clear, express obligations and because their enforceability is determinable, the parties agree that these conditions, the SOF with its respective commercial proposal and its annexes, lend executive merit before a competent judge.

 

36. APPLICABLE LAW.

For all purposes, this contract and the provision of the service contracted by THE CLIENT will be governed by Colombian law.

 

37. VALIDITY OF THE TERMS AND CONDITIONS.

These terms and conditions will come into force with the acquisition of the WeKall services and during the period contracted by the CLIENT through the subscription of the respective SOF.