General Terms of Service

1. Who we are

These General Terms of Service (the "General Terms") are issued by ON DIVERSITY CLOUD EUROPE, S.L., NIF B24972143, with registered office at Calle de Hermosilla 48, 28001 Madrid, Spain, registered in the Commercial Registry of Madrid, Sheet M-872003, Entry 1 ("DIVERSITY", "we", "us"). DIVERSITY is the only entity that provides and contracts the Services.

2. Definitions

• "Agreement": the Order Form together with the documents listed in Section 3.2.
• "Customer": the legal person or professional that contracts the Services.
• "Customer Data": all data, including personal data, that the Customer or its users store, process or transmit using the Services.
• "Order Form": the offer, order or contract signed or accepted by the Customer that identifies the Services, fees and term, including its annexes.
• "Services": the services described in the Order Form, which may include cloud services (VPS, VDS, MEM and MNG instances, object storage, managed databases, single sign-on, Active Directory), bare metal, telecommunications services (CloudPBX, SIP trunking, numbers, A2P messaging, fibre and mobile lines), colocation, Private Link, the solutions (Data Driven, Event Streaming, AI, SecOps, disaster recovery) and professional services (IT consulting, IT maintenance, equipment assembly and the engagement work in the solutions).
• "SLA": the service level agreement that forms part of the Agreement.
• "DPA": the data processing agreement under Article 28 of Regulation (EU) 2016/679 (GDPR) that forms part of the Agreement.
• "Specific Terms": the terms that apply to a particular Service, published at /contracts/ with their "Last updated" date. The Specific Terms of each Service in the Order Form form part of the Agreement in the version in force when the Order Form is accepted, and may be changed only as Section 20 provides for these General Terms.

3. Scope and order of precedence

3.1 Business customers only. The Services are offered only to businesses, professionals and public bodies acting for purposes related to their trade, business, profession or public function. By contracting, the Customer confirms that it is not acting as a consumer.

3.2 Order of precedence. If the documents conflict, they apply in this order: (1) the Order Form, including any sector-specific addendum it incorporates; (2) the SLA; (3) the DPA; (4) the Specific Terms of the Service concerned; (5) these General Terms; (6) the Acceptable Use Policy. Where the Specific Terms of a Service state what the SLA covers or excludes for that Service, they prevail over the SLA on that point. The Customer's own general terms do not apply, even if referred to in a purchase order, unless DIVERSITY accepts them in writing.

3.3 Regulated and public customers. For Customers subject to sector rules, including financial entities under Regulation (EU) 2022/2554 (DORA), the contractual provisions those rules require are set out in the Order Form or its addendum and prevail over these General Terms. For public sector Customers, the procurement documents prevail where public procurement law requires it.

4. Ordering and acceptance

4.1 The Agreement is formed when both parties sign the Order Form, or when DIVERSITY confirms in writing that it accepts the Customer's order. Information on the website is not a binding offer.

4.2 Where the Agreement is concluded electronically, DIVERSITY makes these General Terms available before contracting in a form that allows them to be stored and reproduced, and confirms acceptance by email. The Agreement is concluded in English. DIVERSITY keeps an electronic copy of the Agreement, which the Customer may request. As neither party is a consumer, the parties agree that the information and confirmation requirements of Articles 27 and 28 of Spanish Law 34/2002 (LSSI-CE) apply only as set out in this Section.

5. Services and service levels

5.1 DIVERSITY provides the Services as described in the Order Form and with reasonable skill and care.

5.2 Availability. The Services covered by the SLA have a monthly availability commitment of 99.9%, measured as defined in the SLA. If DIVERSITY does not meet it, the Customer receives the service credits defined in the SLA, applied automatically. Service credits are the Customer's financial remedy for availability failures, without prejudice to any termination right under the SLA and to the liability that cannot be limited by law (Section 14.3).

5.3 DIVERSITY may change the technical features of the Services provided that the agreed functionality and service levels are not materially reduced. Where the law requires, DIVERSITY will notify the Customer in advance.

6. Customer obligations, acceptable use and illegal content

6.1 The Customer must use the Services lawfully and in accordance with the Agreement, keep its access credentials secure, and ensure that its users comply with the Agreement. The Customer is responsible for the Customer Data and for its lawfulness.

6.2 The Customer must not use the Services to: (a) store or transmit illegal content or infringe third-party rights; (b) send unsolicited communications, or engage in telecommunications fraud, artificially inflated traffic or misuse of numbers; (c) attack, scan or disrupt networks or systems without authorisation; (d) distribute malicious code; or (e) breach sanctions or export control law. The Acceptable Use Policy published at https://ondiversity.cloud/acceptable-use-policy/ sets out these prohibitions and the rules for each Service in more detail and forms part of the Agreement.

6.3 Telecommunications services. The Customer must comply with the rules that apply to it on numbering, caller identification, emergency calls, and commercial and A2P communications, and must provide accurate identification data where the law requires it.

6.4 Notices of illegal content. Anyone can report content hosted on the Services that they consider illegal to abuse@corp.ondiversity.eu, providing the information set out in Article 16 of Regulation (EU) 2022/2065 (Digital Services Act). The same address is the single point of contact for authorities and for recipients of the Services, in English or Spanish.

6.5 Content moderation. DIVERSITY does not generally monitor the content that Customers store or transmit. It acts on notices, on orders from competent authorities and on breaches of Section 6.2 that come to its knowledge. It may use automated tools to detect network abuse, fraud or security threats. Decisions to remove or disable access to content, or to restrict a Service because of content, are taken or reviewed by DIVERSITY staff, limited to what is necessary, and communicated to the affected Customer with a statement of reasons as required by the Digital Services Act, unless the law prevents it.

7. Fees, invoicing and late payment

7.1 Fees are set out in the Order Form. They exclude VAT and any other applicable taxes, which are added at the applicable rate.

7.2 Invoices are payable within 30 days of the invoice date.

7.3 Late payments accrue the statutory interest provided in Spanish Law 3/2004 of 29 December on late payment in commercial transactions without any need for a reminder, together with the fixed compensation for recovery costs provided in that Law, without prejudice to further recovery costs that are proven.

7.4 DIVERSITY may review its fees once a year by giving at least 60 days' written notice. If the Customer does not accept the change, it may terminate the affected Services before the change takes effect.

8. Suspension

8.1 DIVERSITY may suspend all or part of the Services, limiting the suspension to what is necessary: (a) if an undisputed invoice remains unpaid 15 days after written notice to the Customer; (b) where needed to prevent a serious threat to the security or integrity of the network, other customers or third parties; (c) in case of a serious breach of Section 6; or (d) when required by law or by a competent authority.

8.2 DIVERSITY will give prior notice where reasonably possible and will restore the Services as soon as the cause of the suspension has been resolved.

9. Data protection, data location and governmental access

9.1 When DIVERSITY processes personal data on the Customer's behalf, it acts as processor under the DPA, and the Customer is the controller.

9.2 DIVERSITY processes the personal data of the Customer's contact persons as controller, as described in its Privacy Policy at /privacy-policy/.

9.3 In accordance with Article 28 of Regulation (EU) 2023/2854 (Data Act), DIVERSITY publishes on its website information on the jurisdiction of the infrastructure used to provide the Services and on the measures it takes to prevent unlawful governmental access to Customer Data, at /data-act/. DIVERSITY takes the measures required by Article 32 of that Regulation to prevent international governmental access to, or transfer of, non-personal Customer Data held in the European Union where it would conflict with European Union or Spanish law.

9.4 Data location. Customer Data, including backups, is stored in the region or regions selected in the Order Form: Madrid (Spain), Amsterdam (Netherlands), Helsinki (Finland) or Munich (Germany). DIVERSITY will not move Customer Data to another region without the Customer's prior written consent, and will notify the Customer at least 60 days before any change to the locations where it provides the Services to the Customer.

10. Confidentiality

10.1 Each party will keep confidential all non-public information received from the other party, use it only to perform the Agreement, and disclose it only to its staff and advisers who need to know it and are bound by equivalent confidentiality obligations.

10.2 This obligation does not apply to information that is or becomes public without breach of the Agreement, was already known to the recipient, is independently developed, or must be disclosed by law or by order of a competent authority.

10.3 This obligation continues for 5 years after the Agreement ends and, for trade secrets, for as long as they remain trade secrets.

11. Intellectual property

11.1 Each party keeps its own intellectual and industrial property rights. The Customer keeps all rights in the Customer Data.

11.2 DIVERSITY grants the Customer a non-exclusive, non-transferable right to use the Services during the term of the Agreement.

11.3 Rights in deliverables of professional services are as set out in the Order Form. Where it says nothing, the Customer receives a non-exclusive licence to use the deliverables for its internal purposes.

12. Warranties

DIVERSITY warrants that it will provide the Services in accordance with the Agreement. Except as expressly stated in the Agreement or required by law, DIVERSITY gives no warranty that the Services will be free of errors or fit for a particular purpose that has not been agreed.

13. Backups

Unless the Order Form includes backup or disaster recovery services, the Customer is responsible for keeping backup copies of the Customer Data.

14. Limitation of liability

14.1 Neither party is liable for loss of profit, loss of business or indirect or consequential damage.

14.2 Each party's total liability arising from the Agreement in any 12-month period is limited to the fees paid or payable by the Customer for the affected Services in the 12 months preceding the event giving rise to the claim.

14.3 These limitations do not apply to liability for wilful misconduct (dolo), which cannot be excluded under Article 1102 of the Spanish Civil Code, or for gross negligence, to liability for death or personal injury, to the Customer's payment obligations, or to any other liability that cannot be limited by law.

15. Force majeure

15.1 Neither party is liable for a failure to perform caused by events that could not be foreseen or, if foreseeable, could not be avoided (Article 1105 of the Spanish Civil Code). Examples include natural disasters, war, acts of authorities, widespread failures of third-party networks or energy supply not attributable to the affected party, and large-scale attacks that could not be prevented despite reasonable security measures.

15.2 The affected party must notify the other party promptly and take reasonable steps to limit the effects. If the event lasts more than 60 days, either party may terminate the affected Services by written notice.

16. Term and termination

16.1 The Agreement lasts for the term stated in the Order Form. Unless the Order Form provides otherwise, it renews automatically for successive periods of the same length unless either party gives written notice of non-renewal at least 30 days before the end of the current period.

16.2 Either party may terminate the Agreement by written notice if the other party seriously breaches it and does not remedy the breach within 30 days of being asked to do so, or where the law allows termination because of the other party's insolvency.

16.3 The Customer's rights under Section 17 apply in addition to this Section.

17. Switching and data export (Data Act)

17.1 This Section applies to Services that are data processing services under Regulation (EU) 2023/2854 (Data Act).

17.2 The Customer may ask to switch to another provider or to its own infrastructure, or to export or erase its data, by giving one month's written notice.

17.3 After the notice period, a transition period of 30 calendar days applies. During it, DIVERSITY provides reasonable assistance, continues the Services and maintains their security. If the switch is technically unfeasible within that period, DIVERSITY will inform the Customer within 14 working days of the request, explain why and propose an alternative transition period of no more than 7 months, as the Data Act allows. The Customer may extend the transition period once, for a period it considers more appropriate.

17.4 The exportable data and digital assets, the available export methods and formats, and the categories of data excluded from export are those listed in the Order Form or, where the Order Form does not list them, in the register published at /data-act/ on the date of the switching request. The Customer may retrieve the exportable data and digital assets for at least 30 calendar days after the transition period ends. After that, DIVERSITY erases them securely, unless the law requires it to keep them.

17.5 When the switch has been completed, the Agreement terminates for the switched Services, and DIVERSITY confirms the termination to the Customer.

17.6 DIVERSITY charges no switching charges, including data egress charges, for switching. Fees for additional services requested by the Customer beyond what the Data Act requires remain payable.

17.7 This Section does not apply to Services exempted by the Data Act, including Services whose main features have been mostly custom-built for the Customer and Services provided for testing and evaluation for a limited period. The Order Form states when an exemption applies.

18. Notices

Notices must be in writing and sent by email to the addresses stated in the Order Form, or by any other means that provides proof of delivery. Notices to DIVERSITY must be sent to legal@corp.ondiversity.eu, and operational matters to support@ondiversity.eu.

19. Assignment and subcontracting

19.1 Neither party may assign the Agreement without the other party's prior written consent, which may not be unreasonably withheld. DIVERSITY may assign the Agreement without consent in the context of a corporate restructuring or a transfer of its business, provided the Customer's rights are not reduced and the Customer is notified.

19.2 DIVERSITY may use subcontractors and remains responsible for them. The engagement of sub-processors of personal data is governed by the DPA.

20. Changes to these General Terms

20.1 DIVERSITY may change these General Terms for legal, regulatory, security or operational reasons by notifying the Customer at least 30 days before the change takes effect.

20.2 If a change materially harms the Customer, the Customer may terminate the affected Services before the change takes effect, without penalty.

20.3 Changes do not modify a signed Order Form, SLA or DPA unless the parties agree in writing.

21. Telecommunications services for small businesses

Certain rights of end users under Spanish Law 11/2022 of 28 June, General Telecommunications Law, also apply to Customers that are microenterprises, small enterprises or non-profit organisations, unless they have expressly agreed to waive them. Any such waiver must be expressly accepted by the Customer in the Order Form.

22. General provisions

22.1 If any provision of the Agreement is held invalid or unenforceable, the remaining provisions remain in force, and the parties will replace the invalid provision with a valid one that comes as close as possible to its purpose.

22.2 A failure or delay in exercising a right is not a waiver of that right.

22.3 The Agreement is the entire agreement between the parties on its subject matter and supersedes any prior proposals or communications.

23. Governing law and disputes

23.1 The Agreement is governed by Spanish law and applicable European Union law. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

23.2 Before bringing a court claim, the parties will attempt to resolve the dispute through good-faith negotiation, as an appropriate means of dispute resolution under Spanish Organic Law 1/2025 of 2 January. Either party may start the negotiation by written notice to the other.

23.3 Subject to any mandatory rules, the courts of the city of Madrid have exclusive jurisdiction. This clause is also an agreement on jurisdiction under Article 25 of Regulation (EU) No 1215/2012.

23.4 If these General Terms are translated into another language, the English version prevails.