LAWYERS FOR TECH COMPANIES IN MALAGA
At Welllaw we advise Spanish and international technology and IT services companies at every stage of their business: from setting up in Spain or launching a start-up to funding, commercial growth and corporate transactions.
We understand how the sector works: subscription models, agile development, distributed teams, funding rounds and international groups providing services between their subsidiaries. That is why we bring together corporate, tax, employment and data protection advice in a single team with an active technology contracts practice, so that the company’s legal structure and its contracts with customers, suppliers and investors follow one strategy.
How we support tech companies
Launch and set-up in Spain
- Incorporation of companies and of subsidiaries or branches of foreign tech groups, with all the formalities up to the start of operations. See our Corporate Law page.
- Legal, tax and strategic planning of the project: corporate structure, equity split among founders, shareholders’ agreement, vesting clauses and incentive plans for the team.
- Application for ENISA certification to qualify for the start-up regime under the Spanish Start-up Act and make the most of its benefits.
- Obtaining Spanish tax IDs (NIF) for the company and for its foreign shareholders, investors and directors.
Investment, funding and corporate transactions
- Funding rounds with business angels, venture capital funds and corporate investors: term sheets, due diligence, capital increases, convertible loans and shareholders’ agreements.
- Public funding, including ENISA participating loans.
- Buying and selling tech companies, shareholder entries and exits and restructurings, together with our M&A · Transactions team.
Technology contracts
We draft, review and negotiate, in English and Spanish, the contracts the sector relies on:
- Pre-contractual stage: non-disclosure agreements (NDAs), memorandums of understanding (MOUs) and letters of intent.
- Software and cloud services: bespoke software development, SaaS agreements and subscription terms, implementation and integration, maintenance and support, and service level agreements (SLAs).
- Intellectual and industrial property: software licences, trade marks and patents, assignment of rights, technology transfer and contracts with external developers and contractors to make sure the code belongs to the company.
- Outsourcing and IT services: outsourcing of services and development teams, structured to avoid the risk of unlawful supply of workers.
- Data: data sharing and data access agreements and data processing agreements.
- Intra-group agreements: licence service agreements, management service agreements, shared services and intellectual property licences between group companies, set on arm’s length terms and coordinated with our tax team on transfer pricing.
Data protection and digital compliance
Compliance with the GDPR and Spanish data protection law, agreements with data processors, international data transfers, privacy and cookie policies, and terms and conditions for platforms, apps and e-commerce.
Ongoing support as you grow
Once the business is up and running, we stay alongside it with a recurring service: company secretarial work, contracts with customers and suppliers, employment contracts and incentive plans, tax compliance and, if a dispute arises, its defence through our Litigation team.
Who we work for
- Tech start-ups and scale-ups at launch, funding or expansion stage.
- Software, SaaS, digital platform and e-commerce companies.
- IT consultancies, integrators and providers of development and maintenance services.
- Spanish subsidiaries of international tech groups.
- Investors taking stakes in tech companies.
Our team
The practice is led by Federico Pérez-Padilla, managing partner of Welllaw, recognised by The Best Lawyers in Spain™ in Corporate and Mergers and Acquisitions Law, with more than 20 years of practice in commercial law and experience as non-director secretary and external adviser to technology corporations. The tax practice is led by Emilio Pérez de la Blanca, partner recognised by The Best Lawyers in Spain™ in Tax Law, with extensive experience in the taxation of Spanish companies and international groups. Álvaro Gandarillas, senior lawyer, advises start-ups and tech companies from incorporation through to contracts with customers and suppliers and data protection compliance, and supports subsidiaries of international groups setting up in Spain.
Frequently asked questions
What is an emerging company under Spanish law and what tax benefits does it have?
The Spanish Start-up Act (Law 28/2022) defines an emerging company as a newly created company, or one registered for less than five years (seven in biotech, energy, industry and other strategic sectors) which, among other requirements, does not distribute dividends, is not listed, has its registered office or a permanent establishment in Spain and at least 60% of its workforce employed in Spain, and carries out an innovative, scalable project certified by ENISA. Its benefits include a 15% corporate income tax rate in the first year with a positive tax base and the following three years, and the option to defer, without guarantees, the tax payable for the first two years with a positive tax base.
Can a foreign investor invest in a Spanish start-up without an NIE?
Yes. Under the Start-up Act, non-resident foreign individuals who wish to invest in Spanish emerging companies apply to the Spanish Tax Agency for a tax identification number (NIF) and do not need to obtain a foreigner identification number (NIE). They can do so through a representative, whose powers may be granted in a notarial document, including one issued by a foreign notary, or in an agency agreement.
Who owns software developed by an employee or an external developer?
Where an employee creates a program in the course of their duties or following the company’s instructions, the exploitation rights, in both source code and object code, belong exclusively to the company unless otherwise agreed (article 97.4 of the Spanish Intellectual Property Act). The position is different with a freelance developer or an outside firm: the assignment of rights must be agreed in writing, because the law limits an assignment to the forms of exploitation expressly provided for and, if the contract is silent, to five years and to the country where it is made (article 43). That is why we review these clauses before any funding round or sale of the company.
What is a non-disclosure agreement (NDA) for?
As well as setting out what information is protected, for how long and what happens in the event of a breach, an NDA is one of the “reasonable steps” required by the Spanish Trade Secrets Act (Law 1/2019) for technical or commercial information to be protected as a trade secret. Without steps of this kind, the company may lose that protection against anyone who uses or discloses the information.
What must a SaaS agreement include?
In practice, a sound SaaS agreement precisely defines the service and its availability and support levels (SLAs), the consequences of failures, the price and its reviews, ownership of the software and of the customer’s data, security, limitation of liability, term and an orderly exit, including the return of data. If the provider processes personal data on the customer’s behalf, the agreement must also include the data processing agreement required by the GDPR.
When is a data processing agreement required?
Whenever a provider processes personal data on behalf of its customer, which is common in cloud, development, maintenance and support services. Article 28(3) GDPR requires a contract setting out the subject matter, duration, nature and purpose of the processing, the type of data and categories of data subjects, and obliging the provider, among other things, to act only on the customer’s documented instructions, ensure confidentiality and security, comply with the rules on sub-processors and delete or return the data at the end of the service.
Why must intra-group agreements be priced at market value?
Because the Spanish Corporate Income Tax Act requires transactions between related parties to be valued at market value, meaning the value independent parties would have agreed under arm’s length conditions, and requires the supporting documentation to be kept available for the tax authorities (article 18). Licences, management services and shared services between companies in a tech group must be properly documented and remunerated on that basis to avoid adjustments and penalties.
What is the risk of outsourcing developers or providing them to clients?
Under the Spanish Workers’ Statute, workers may only be supplied to another company through authorised temporary work agencies. There is an unlawful supply of workers, among other cases, where the service contract is limited to merely making workers available, or where the provider lacks its own organisation and the resources needed for its activity (article 43). That is why we structure these contracts as genuine services, with the provider’s own scope, management and resources.
Let’s talk about your project
If you are launching a start-up, setting up your tech company in Spain, preparing a funding round or reviewing your software contracts, get in touch. We work in English and Spanish.
