The use of the Services offered by Orquest implies the Client’s full and unreserved acceptance of these Terms and Conditions. Occasionally, the reservation or use of certain Services may be subject to specific conditions which, depending on the case, may replace, take account of and/or partially modify these Terms and Conditions. Therefore, Clients must take into account that the corresponding special conditions may also be applicable, as indicated on the descriptive sheets during the purchase or booking process.

These Terms and Conditions, together with the documents referred to herein, apply to the use of the Software owned by ORQUEST SOFTWARE, S.L. Spanish company with registered address in Calle Albasanz, nº 16, (28037)- Madrid, and with Spanish tax identification number (C.I.F.) B-88.422.050, and registered in the Madrid Company Register, Volume 39.374, Page 92, Sheet M-699.129 (“Orquest”). These General Terms and Conditions, together with the Purchase Order and the Scope of Work, are collectively referred to as the “Terms and Conditions” or the “Contract“.

Any other non-expressly accepted conditions by Orquest shall be deemed invalid for all purposes. Orquest may modify in any moment the present Terms and Conditions in order to adapt them to potential regulatory changes, due to technical or functional modifications of https://orquest.com/ (the “Website”), as a consequence of the changes in the provided Services or to adapt them to the practices, uses and customs of the sector.

In the event of relevant changes, Orquest shall provide sufficient information by means of notices on the Website or through any type of communication addressed to the Clients.

1. DESCRIPTION OF THE SERVICES

1. Orquest provides an intelligent planning and management solution for staff, designed specifically and exclusively to meet the professional needs of retail and fast-food establishments (“Client(s)“). The Software is offered as a SaaS (Software as a Service) solution from the cloud infrastructure provided by Amazon AWS (the “Software“).

2. Furthermore, these Terms and Conditions will be applicable to any other services that may be provided regarding the Software, such as user support services and the technical support services stated in the signed Purchase Order with the Client (collectively, the “Services“). 

2. SUPPORT SERVICES AND SAAS SUPPORT  

2.1 During the term of the License, the Client will receive all updates that Orquest implements in the Software at no additional cost. Such updates may include corrections, evolutions, or improvements that Orquest implements in the Software regarding the existing functionalities in the version under contract.

2.2. The License price grants the Client the right to use the available Software version at the time of purchase, along with any updates implemented during the term of the Contract. The price also includes, at no additional cost, technical support services from Orquest. 

2.3. As part of the technical support services, Orquest shall provide assistance and support for the incident resolution and for the corrective maintenance of potential errors or bugs that affect the Software. 

2.4. Additionally, the Client may contract the user support services offered through a specific channel enabled on the Website (chatbox) that Orquest makes available to the Client for the purpose of providing assistance and orientation about the characteristics and functionalities of the Software, as well as clarifications and orientation about its use. By using the Services, the Client acknowledges that any assistance or user support is supplementary and does not replace the technical support services included in the price of the License and/or Services.

2.5. Orquest’s assistance and technical support services are available Monday through Friday, from 9:00 am to 7:00 pm, with the exception of public holidays within the Community of Madrid

3. AVAILABILITY

3.1. The Client acknowledges that Orquest cannot guarantee uninterrupted availability of the Software. Orquest will make all reasonable efforts to ensure the Software is available for its clients to access and use for a minimum of 99% of the time on a monthly average basis, with the exception of periods of unavailability that are permitted (“Availability Objective“). 

3.2. For these purposes, the “Permitted Unavailability Periods” include planned interruptions (as defined hereinafter) for maintenance work and interruptions arising from Force Majeure circumstances or incidents beyond Orquest’s control and responsibility, such as: telecommunications network fluctuations or outages; malfunctions or interruptions affecting Internet access service providers; power fluctuations or outages; faults, viruses, or incidences affecting the Client’s systems, networks, or equipment; or hacker attacks. 

3.3. “Planned Interruptions” refers to the scheduled maintenance period during which Orquest performs essential system maintenance on the Software. Unless deemed urgent or security-related, these interruptions are scheduled to take place outside of the work hours specified in clause 3.1 or, when necessary, with at least 24 hours’ advance notification to the Client.

3.4. In the event that the Availability Objective is not fulfilled in a monthly period, excluding Permitted Unavailability Periods, the Client shall be entitled to have Orquest deduct from the annual fee the proportional amount of one day of Services for each period of 60 consecutive minutes (or more) of unavailability. However, no more than one of these discounts may be accumulated per day. This reduction will be applied via a credit on the next invoice. The annual fee reduction is the Client’s sole right and Orquest’s sole responsibility in the event of an Availability Objective breach. The breach of the Availability Objective will be calculated from the moment the Client becomes aware of the unavailability of the Services (notification to Orquest) and will be finalized once the availability is restored. To claim the unviability discount, the Client must notify Orquest in writing within 24 hours of the interruption. Failure to do so will result in the forfeiture of the right to receive unviability discounts. 

3.5. These discounts cannot replace cash payments. Furthermore, discounts cannot be accumulated to exceed the Service fee for one (1) week in one (1) natural month. Orquest will only apply the discount to its annual invoicing for the year in which the incident occurred. Orquest reserves the right to block its data communications and other services in accordance with its information security policies, and this action shall not be considered a breach of its service level obligations as outlined in this Contract. 

4. TERMS OF USE

4.1. The Client is responsible for using the Software in a diligent manner, in accordance with the terms of this Contract and the applicable law. 

4.2. The Client shall use the Software solely under the scope of the Licence and always according to the specifications contained in the user manuals and technical documentation provided by Orquest, where appropriate. 

4.3. The Client shall be responsible for obtaining and maintaining the necessary equipment and auxiliary services to connect, access, or use the Services. This includes, but is not limited to, modems, physical computing devices (hardware), servers, logical computer elements (software), operating systems, network connections, web servers, and the like (referred altogether as the “Equipment“). The Client shall also be responsible for maintaining the security of the Equipment, the Client’s account, the passwords (including, merely as an example, administrator and user password) and files, as well as all uses of the Client’s account or Equipment, whether with or without the knowledge or consent of the Client. Additionally, the Client shall not alter the software provided by Orquest for the provision of the Services.

4.4.The client shall be solely responsible for the use made of the software functionalities, as well as for the control and management of files, data, statistics and other content related to the use of the software that, if any, are stored on their equipment or on Orquest’s systems.

The client acknowledges and accepts that the software has open fields in which he/she can enter unique identifiers for his/her company’s employees. Orquest expressly recommends not to use sensitive information as a unique identifier for each employee.

4.5. As the holder and responsible party for the processing of the personal data of its own employees, providers, or clients (collectively, “Third Parties“), it is the sole responsibility of the Client to obtain and process the personal data of the Third Parties in compliance with the established obligations under personal data protection legislation in force. 

4.6. The Client shall be solely responsible for the actions of their employees regarding the Services, as well as for any resulting incidents or obligations, including any damages or defects that may be caused to the Software. Furthermore, the Client is solely responsible for any commercial relationships or interactions with Third Parties, as well as for any responsibility that may arise from these relationships. Orquest shall not be held liable for any of the aforementioned matters. 

4.7. Orquest will not be held responsible to the Client or any third parties for any damage, loss, cost, compensation, penalty, or detriment resulting from the following: (i) breach by the Client of the established obligations in these Terms and Conditions; (ii) use of the Client of the Software contravening the specifications contained in the technical documentation or infringing these Contract terms; (iii) failure of the Client to comply with any legal obligations owed to themselves; (iv) faults or lack of diligence which are solely attributable to the Client, to their staff or to any third party outside Orquest; (v) contractual relations of the Client maintained by with their clients, providers or any person or company with which Orquest has no legal relation; or (vi) the content, files or data stored, transferred or disseminated by the Client through the Software that may be contrary to the legislation or may infringe third parties rights.  

4.8. The Client shall compensate and hold Orquest harmless from any damages, losses, costs, compensation, penalties, or other detriment that may be claimed or imposed on Orquest as a result of the aforementioned circumstances.

5. PROHIBITIONS

5.1. The Client is strictly prohibited from assigning, sublicensing, reselling, renting, or transferring the rights of use attributed to them regarding the Software under the terms of the License. Furthermore, the Client is not permitted to use, distribute, or commercially exploit the Software in any way. 

5.2. Under no circumstances may the Client decipher, decompile, or disassemble or attempt to decipher, decompile, or disassemble the Software fully or partially. The Client may not perform reverse engineering works or attempt to ascertain the algorithms, programs, or codes regarding the Software with the intention of copying, reproducing, developing, or obtaining an equal technology, equivalent, or similar. Additionally, the License expressly prohibits the Client from making or authorizing third parties to make modifications, adaptations, or successive or derived versions of the Software without the prior authorization of Orquest. 

5.3. Under no circumstances may the Client: (i) modify, interfere with, or manipulate the Software, use or attempt to access functionalities or systems to which they have not been granted access or that are restricted, or perform any action that circumvents or manipulates potential restrictions or security measures or installed controls; (ii) probe, investigate, analyze, explore, or demonstrate the Software’s vulnerability or Orquest’s information systems, or attempt to disassemble, decipher, or deactivate any security system, control, or authentication mechanism related to the Software or the systems or technologies it operates with; (iii) host or store in Orquest’s systems or through the Software files or contents that infringe intellectual or industrial property rights of third parties or that are fraudulent, unlawful, or illegal; (iv) damage or generate a damage threat to Orquest’s systems and networks linked to the Software, manipulate or attempt to manipulate the access to themselves in any manner, or possess programs or tools dedicated to hacking or computing system assaulting, including viruses, sniffers, spoofers, bouncers, port scanners, cracks, exploits, and similar. 

5.4. The Software is equipped with automatic control mechanisms and systems to monitor and control its use in accordance with the terms established in this Contract. In the event of a breach of the established restrictions in this Contract by the Client or any person under their charge or with their authorization, Orquest shall be entitled to revoke the License and restrict access to the Services immediately. This shall not constitute a waiver of any legal actions that may be undertaken to claim damages suffered.

6. LICENCE AND INTELLECTUAL PROPERTY RIGHTS

6.1. According to these Terms and Conditions, Orquest grants the Client a license of temporary use, non-exclusive and nontransferable (the “License“) that allows the Software’s use and access to the contracted Services with Orquest during the term of the License. 

6.2. The License does not impose restrictions on the number of sessions that the Client may carry out through the Software. However, its use is subject to a different price depending on volumetric sales points, among other parameters. 

6.3. Orquest retains ownership of the intellectual and industrial property rights inherent or associated with the Services. This includes the Software, its design, architecture, programming, interfaces, source code, technology, graphic material, user manuals and technical documentation, as well as names, brands and logotypes associated with the Services. Orquest also retains ownership of any updates, evolutions, adaptations or improvements that Orquest implements on the Software. 

6.4. These Terms and Conditions shall not be construed as an assignment or transfer of any proprietary rights in the Software. The Client acknowledges that no rights are granted to it in respect of the Software other than a mere license to use the Software as an end user for the purposes and on the terms specified in these Terms and Conditions. Orquest reserves all rights not expressly granted to the Client under the Licence.

6.5. The Client agrees to respect Orquest’s intellectual and industrial property rights regarding the Services and to not take any action that would limit, appropriate, or infringe upon these rights.

7. CONFIDENTIALITY; INFORMATION PROPERTY

7.1. For the purposes of this Contract, “Confidential Information” shall mean any information and documentation provided or exchanged between the Parties under this Contract by any medium that is designated as confidential or that should reasonably be understood as confidential because of its nature and its disclosure circumstances. Specifically, it shall be considered Confidential Information all technical information regarding the Software that Orquest may provide or make available to the Client.

7.2. The Party receiving Confidential Information (hereinafter, the “Receiving Party“) is obliged before the Party who discloses Confidential Information (hereinafter, the “Disclosing Party“) to: (i) refrain from disclosing, disseminating, divulging, or making the Confidential Information public without the Disclosing Party’s prior authorization; (ii) implement procedures and maintain the same level of diligence as the Receiving Party does for its own confidential information. (iii) restrict access to the Confidential Information solely to employees, providers, representatives, and/or directors who may need access to it for tasks and actions related to the object of this Contract, provided that these individuals or entities are subject to the duty of secrecy under the Receiving Party; (iv) use the Confidential Information solely for the exercise of rights and compliance with obligations stated in this Contract.

7.3. Orquest’s proprietary information includes non-public data regarding the features, functions, and operation of the Services. The Client’s proprietary information includes non-public data provided by the Client to Orquest to enable the provision of the Services (hereinafter, “Client’s Data“). The Receiving Party is committed to (i) taking all reasonable precautions to protect such exclusive proprietary information, and (ii) not using (except for the provision of the Services or in other circumstances contemplated herein) or disclosing such proprietary information to third parties. The Disclosing Party agrees that the above shall not be applicable to any information after five (5) years from its disclosure, or to the information that the Receiving Party may demonstrate that: (a) is or has become of public knowledge; (b) was properly disclosed to it without restriction by a third party; (c) was independently developed without using Confidential Information of the Disclosing Party; or (d) is required to be disclosed by law. 

7.4. The Client shall be the full owner of all rights and interests in, or related to, the Client´s Data. Orquest shall retain and be the full owner of all rights and interests in, or related to, the following: (i) the Services and the Software, as well as all improvements, expansions, or modifications thereof, (ii) any software, application, invention, or other technology developed in connection with the implementation Services or assistance. (iii) all intellectual property rights related to any of the foregoing, and (iv) any data based on or derived from the Client´s Data and provided to the Client as part of the Services, provided that these data shall not allow to disclose Client’s Confidential Information or personal data of their employees.

Without prejudice to the foregoing, and in relation to the personal data that the Client may freely enter in open fields of the Software, Orquest refers to the provisions of section 4.4 of these Conditions, where it is expressly stated that the responsibility for such data lies exclusively with the Client.

7.5. Notwithstanding any provision to the contrary, Orquest reserves the right to collect and analyze all data and other information related to the provision, use, and performance of various aspects of the Services and the systems and technologies related thereto (including, merely as an example, information related to Client´s Data and data derived therefrom). Orquest shall be free (both during and after the term of this Contract) to: (i) use such information and data for the improvement and enhancement of the Software and Services and for other development, diagnostic, and correction purposes in connection with the Services and other offerings provided by Orquest, and (ii) disclose such data, solely in aggregated or anonymized form, in connection with its business, provided that these data shall not allow in any case to disclose Client’s Confidential Information. No other rights or licenses are granted other than those expressly stated herein..

7.6. The following information is not subject to confidentiality obligations: (i) information that is or becomes part of the public domain or knowledge without the Receiving Party’s intervention or fault; (ii) information that has been independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information; (iii) information that the Receiving Party possessed before its disclosure by the Disclosing Party; or (iv) information that must be revealed by rule of a legal provision or by court order.

8. FEES AND INVOCINCING

8.1. The Client shall pay Orquest the applicable fees at each moment for subscription license services, and implementation and support services, in accordance with the stipulations set forth in the accepted and signed purchase order by the Client (hereinafter, the “Fees“), along with any applicable taxes and bank charges.

8.2. In the event that the Client’s use of the Services exceeds the Service Capacity indicated in the signed Purchase Order or requires additional fees for other reasons, Orquest will notify the Client in writing, requesting rectification of this situation. In the event of acceptance of the Fee increase for exceeding the Service Capacity, Orquest shall invoice the Client for such use, and the Client shall pay the additional fees as provided herein. If the Client does not accept the additional fees, the Client agrees that it may not be able to extend the Service Capacity and/or contracted License.

8.3. The prices and discounts agreed upon in the signed Purchase Order are confidential, and the Client agrees not to reveal them to third parties. 

8.4. All the indicated fees and prices do not include the legally applicable taxes, that shall be broken-down separately in the invoice. 

8.5. The invoice amounts are net, excluding any potential withholding taxes according to the paying company country’s legal regulations.  Orquest will receive the total net amount of the invoice issued. If withholding taxes are applied in the country of the paying company, the Client is responsible for covering them.

8.6. The discounts offered by Orquest are solely valid for the specific Purchase Order to which are applicable and are for one use only. Consequently, such discounts may not be applied to other offers, purchase orders, or Services outside those specified by Orquest. 

8.7. Orquest reserves the right to modify the applicable Fees or compensation up to a maximum of 10%, as well as to establish new fees and compensations at the end of the  initial term of the Service or the actual renewal of it, notifying the Client thirty (30) days in advance (notice may be sent by e-mail). 

8.8. In the event that the Client deems the invoicing by Orquest to be incorrect, the Client is required to contact Orquest within thirty (30) days from the closing date of the initial invoicing statement in which the potential error or issue first appeared. This will allow for the processing of the relevant credit or adjustment. Any such inquiries should be directed to Orquest’s finance department.

8.9. Payment is to be made via bank transfer to the account of ORQUEST SOFTWARE S.L. as indicated on the invoice within thirty (30) days of the Client’s receipt of the invoice issued by Orquest. Invoices will be sent via email. In the event of non-payment, Orquest Software S.L. reserves the right to apply a financial charge of 1.5% per month on any outstanding balance, or the maximum allowed by law, whichever is less, plus all collection expenses. This may result in immediate termination of the Service. The Client will be responsible for all taxes associated with the Services, except for taxes in Spain that levy Orquest’s net income.

8.10. At the time of renewal, the Fees for the Services will be updated in relation to the price established in the original Contract, adjusted according to the CPI (Consumer Price Index) provided by the National Statistics Institute of Spain. This update will be applied automatically and will not require the Client’s approval. Notwithstanding the foregoing, Orquest may update the Fees for the Services by a percentage higher than the aforementioned, subject to the express written approval of the Client.

8.11. All fees mentioned are expressed in Euros unless a different currency is specified at the time of contracting.

9. TERM AND TERMINATION

9.1. This Contract shall be in force for the initial period specified in the Service Purchase Order (the “Term“). 

9.2. Unless otherwise specified in the Purchase Order or agreed and signed by the parties in writing, this Contract shall be automatically renewed for additional periods equal to the initial Service Period unless either party initiates termination by giving written notice to the other party at least ninety (90) days prior to the end of the current period.

9.3. Either party may also terminate this Contract at any moment, prior written notice to the other, if this party substantially breaches the Contract and does not rectify it within thirty (30) days from the reception of the written notice of such breach from the non-infringing party.

9.4. In the event of termination of this Contract for any reason whatsoever, all rights and obligations of the parties and the licenses granted by Orquest to the Client shall terminate immediately, with the exception of pending payment obligations that arose prior to the effective date of termination and any other provisions that, according to its terms, are intended to survive the termination or expiration of the Contract. Termination of the Contract by Orquest shall not relieve the Client of its obligation to pay any amounts pending at that moment and shall not imply any obligation to reimburse any fees paid in advance. 

10. WARRANTY AND DISCLAIMER OF LIABILITY

10.1. Orquest makes the Software available to the Client with the functionalities and in the state of development in which it is at the date of signature of these Terms and Conditions. Without prejudice to any updates, improvements or developments that may be carried out at its discretion, Orquest only guarantees the level of development of the Software at the time of the contract, without guaranteeing or committing itself to any functionality that has not been specifically identified, any expectation of satisfaction that the Client may have, or the ability to use it for specific purposes, activities, functions or actions that have not been specifically identified by Orquest. 

10.2. The Client is solely responsible for determining whether the Software and its functionalities are adapted to its needs and meet the objectives for which it was contracted, and Orquest declines all responsibility in the event that the Software does not meet the Client’s specific needs or expectations.

10.3. Orquest cannot guarantee that the Software is completely free of errors, without prejudice to the fact that, provided that it is up to date with the corresponding Fee payments, Orquest assumes the responsibility of trying to solve the errors affecting the Software in the terms established in article 2 of the present Contract. 

10.4. In any event, Orquest declines all liability for errors, nonconformities or consequences resulting from (i) delays, faults or incidents related to the connectivity services provided by the Internet access providers or related to the lack of capacity of the connectivity services contracted by the Client; (ii) unauthorized use contrary to the specifications contained in the user manuals and technical documentation made available to the Client; (iii) manipulation or modification of the Software by the Client or by any third party not authorized by Orquest; (iv) damage, fluctuations, failures or any type of interruption or incident affecting the Client’s systems, equipment or installation or due to the presence of viruses; (v) use of non-updated versions of the Software; (vi) force majeure; or (vii) events beyond the control and responsibility of Orquest, such as cyber-attacks, power cuts or telecommunications network failures.

11. LIMITATION OF LIABILITY

11.1. In no event and under no circumstances shall Orquest be liable to the Client or any third party for any damage, loss, cost, compensation, penalty or detriment derived from: (i) the Client’s failure to comply with the obligations set forth in theseContract; (ii) the Client’s use of the Software contrary to the specifications contained in the technical documentation or contrary to the terms of this Contract; (iii) the Client’s breach of enforceable legal obligations; (iv) errors or lack of care attributable solely to the Client, its employees or third parties external to Orquest; (v) the contractual relationships maintained by the Client with its customers, suppliers or any person or company with whom Orquest has no legal relationship; or (vi) any content, files or data stored, transmitted or distributed by the Client via the Software that may be unlawful or infringe the rights of third parties.

11.2. The Client shall indemnify and hold Orquest harmless from and against any liability, loss, cost, compensation, penalty or detriment that may be claimed or imposed on Orquest as a result of the aforementioned conditions. Orquest’s potential liability to the Client under this Contract shall be limited solely to the direct damages suffered by the Client as a result of a breach attributable to Orquest and, except in the case of wilful misconduct or gross negligence on the part of Orquest or its employees, Orquest’s maximum liability to the Client shall in no event and under no circumstances exceed the fees paid for the Services provided under this Contract during the twelve (12) months preceding the event giving rise to the liability.

11.3. The express limitation of liability contained herein is accepted by the Client as an essential and inexcusable condition for the execution of this Contract by Orquest. 

11.4. Orquest shall not be liable under this Contract for any indirect, incidental or consequential loss or damage, including loss of profits, which the Client may suffer as a result of the use of the Software or its unavailability, without prejudice to the remedies to which the Client is entitled under this Contract.

12. PERSONAL DATA PROTECTION

12.1. The Client, as the holder of the personal data of its own employees, is responsible for the personal data of its employees, and Orquest, as the data processor, is limited to processing the personal data of its employees on behalf of and in the best interests of the Client.

12.2. In order to provide the Services, Orquest must access and process personal data on behalf of the Client, assuming the role of data processor. In compliance with Regulation (EU) 2016/679, the General Data Protection Regulation and other applicable regulations, the parties regulate such access and processing of personal data in accordance with the following provisions.

12.3. For the proper provision of Services, Orquest may need to carry out the following processing operations: collection, recording, structuring, modification, storage, consultation, communication, interconnection, comparison, limitation, erasure and destruction.

12.4. The personal data that Orquest may make available to the Client for the provision of the Services correspond to the following categories: identification data, employment and academic details, and information about the Client’s employees (full name, skills, position and work calendar).  In any case, the data processed will be adequate, relevant and limited to the purposes of the Services, and the Client may not use them for any other purpose. The duration of the processing is linked to the duration defined in the contract for the provision of the Services requiring access to personal data on behalf of Orquest.

12.5. In accordance with the provisions of the Data Protection Regulation, the Processor and its employees undertake to comply with the following obligations:

a) Process the data exclusively for the purpose of providing the Services, without using it for its own purposes. In the event that Orquest uses the data for its own purposes, it shall be considered the data controller for such processing.

b) Process the data in accordance with the documented instructions of the Client. Instructions shall be provided to Orquest in writing, for example by e-mail. If Orquest believes that the Client’s instructions violate any data protection regulations, it must inform the Client of this fact.

c) Under no circumstances shall it transfer or disclose to third parties, or allow third parties to have access to, the personal data subject to the processing activities entrusted to it, with the exception of those third parties whose activity is necessary for the provision of the Services.

d) Comply with the duty of secrecy and confidentiality regarding the personal data provided by the Client. Orquest shall ensure that the individuals directly or indirectly involved in the development of the Services expressly and in writing undertake to respect the duty of secrecy and confidentiality. In addition, Orquest shall ensure that the necessary training on data protection is given to the personnel authorized to process personal data.

e) The confidentiality obligations shall remain in force during the provision of the Services under the contract and after its termination.

f) Assist the Client in complying with any obligations it may have, taking into account the nature of the processing and the information available to Orquest.

12.6. Orquest is committed to implementing the technical and organizational measures resulting from the risk analysis, as well as to taking all necessary actions to strictly comply with its legal obligations. Specifically, the controller shall implement the following measures: 

a) Secure the permanent confidentiality, integrity, availability, and resilience in the processing systems and services. 

b) Restore rapidly the availability and access to personal data in case of a physical or technical incident. 

c) Verify, assess, and evaluate periodically the effectiveness of the technical and organizational measures implemented to guarantee the processing security. 

d) Pseudonymize and encrypt personal data. 

12.7. Orquest shall notify the Client of security breaches affecting personal data in a prompt manner, no later than 36 hours after becoming aware of the event. The notification shall include the following: 

a) A description of the incident’s nature and scope, including the category and approximate number of affected individuals and data registers. 

b) The name and contact information of the Data Protection Delegate or other designated point of contact for obtaining further information. 

c) Potential adverse consequences of the unauthorized access. 

d) The measures Orquest has implemented to mitigate any negative effects.

If the above information cannot be provided simultaneously, Orquest will provide it gradually without undue delay. 

12.8. Orquest will assist the Client in fulfilling its obligation to respond to requests aimed at exercising the rights of data subjects recognized by the regulations. Orquest will notify the Client of such requests as soon as possible and, in any case, within a maximum period of 48 hours, along with other relevant information to address the request.

12.9. Orquest may not engage another data processor, incorporate, or replace other processors without the prior written authorization of the Client, except for auxiliary services necessary for the normal operation of Orquest’s Services. In the event that Orquest must subcontract any processing, it is Orquest’s responsibility to notify the Client in writing in advance, indicating the processing activities subject to subcontracting, as well as the identification of the third-party processor. The Client is required to respond within 10 business days, either granting or denying authorization. In the event of no response within this period, it will be deemed as denied. If subcontracting is authorized, the subcontractor, who will have the status of a data processor (hereinafter, “Sub-Processor”), must also comply with the obligations established in this Contract for the Processor and the instructions issued by the Client. Orquest must formalize the relationship with the Sub-Processor on the same terms and conditions regarding the processing of personal data as set out in this Contract. In any case, the data processing Client has the right to demand a copy of this contract from the Processor.

12.10. Orquest will not process the personal data of its clients in third countries outside the European Economic Area without its prior written authorization, unless required to do so by Union law or the Member State, and will inform the client of this legal requirement. When international transfers are necessary for the provision of Services, Orquest must obtain the necessary authorizations and permits and implement adequate protection measures at the destination. These measures may include, among others, standard contractual clauses approved by the European Commission. In any case and for matters not covered in this clause, Orquest must comply with the provisions of Articles 44 and following of the GDPR regarding international transfers of personal data.

12.11. Upon completion of services that require access to and processing of personal data, Orquest must, at the Client’s choice, either return or destroy them within a maximum period of sixty (60) calendar days from the Client’s communication. If returning the data is not feasible or would be too burdensome, the personal data and all their media must be destroyed immediately and in any case within a period of less than 15 calendar days through a procedure that provides the highest guarantees.

12.12. However, Orquest reserves the right to retain a copy with the data duly blocked as long as liabilities may arise from the performance of the service or as required by European Union law or the Member States. In such cases, Orquest will communicate this fact to the data processing Client without undue delay.

12.13. The parties involved are hereby informed of the processing of their personal data as a result of this contract. The data subject to processing will be those related to the signatories, contact persons, and other parties involved in the service provision. This processing is essential for managing and fulfilling the contractual relationship, and it is necessary for executing the Contract.

12.14. Personal data will be retained during the term of the contractual relationship and subsequently during periods in which any type of liability may arise. Personal data will not be communicated to third parties or internationally transferred, except in cases where there is a legal obligation or it is necessary for the execution of the contract.

12.15. Data subjects may exercise their rights of access, rectification, erasure, portability, and restriction of processing by contacting the addresses indicated in the header of this contract. For data subjects of Orquest, requests to exercise the aforementioned rights can be made, as well as contacting the Data Protection Officer, via dpo@orquest.com. 

12.16. In the event that their request is not satisfied, data subjects have the right to file  a complaint with the Spanish Data Protection Agency, at www.aepd.es.

13. MISCELLANEOUS DISPOSALS

13.1. In the event that any provision of this Contract is deemed invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the remainder of this Contract continues to be in full force and effect. The Client may not assign, transfer, or sublicense this Contract without Orquest’s prior written consent. Orquest may transfer and assign any of the rights and obligations attributed to it under this Contract without the need for prior consent.

13.2. This Contract does not constitute an agency, partnership, joint venture, or employment relationship, and the Client does not have the authority to bind Orquest in any way.

13.3. All notifications related to this Contract must be in writing and shall be deemed duly served: upon receipt, when delivered in person; when electronically confirmed, in the case of fax or email delivery; the day after sending, when sent via a reputable next-day courier service; and upon receipt, when sent by certified mail with return receipt.

13.4. The Client hereby expressly authorizes Orquest to use its name and logo as a reference on its website and/or in its commercial services. This use is intended solely to identify the Client as a customer of Orquest. Furthermore, the Client and Orquest agree to collaborate in good faith for the publication of a minimum of one press release, to be mutually agreed upon within a period of four (4) months from the initiation of Services according to the Purchase Order. The Client agrees to cooperate reasonably with Orquest in serving as a reference account, if requested to do so. The Client agrees to collaborate in the development of a case study and other promotional material. Orquest will assume all costs associated with the drafting and production of these materials.

14. FORCE MAJEURE

14.1. In the event that Orquest is wholly or partially unable to fulfill its contractual obligations due to Force Majeure, the performance of the affected obligation(s) shall be suspended, without any liability on the part of Orquest, for as long as reasonably necessary under the circumstances. Force Majeure shall mean any cause or circumstance beyond the reasonable control of Orquest, including but not limited to: supplier strikes, transport and service disruptions, failures in third-party supplies, failures in transport systems, natural disasters, floods, storms, pandemics, riots, armed conflicts, cyberattacks, strikes, labor disputes, strikes by Orquest personnel or its subcontractors, sabotage, acts, omissions, and other force majeure causes as contemplated in current legislation directly or indirectly affecting Orquest’s activities.

14.2. In the event of a Force Majeure occurrence, Orquest will promptly inform the Client, providing a detailed explanation of the underlying cause and its anticipated duration. Orquest will also notify the Client of the cessation of the cause, specifying the timeframe in which it will fulfill the suspended obligation(s) due to it. In the event of a Force Majeure occurrence, Orquest reserves the right to request a reasonable extension of the deadline for the provision of Services. If the Force Majeure cause lasts for more than three (3) months, the Parties shall consult to try to find a fair and appropriate solution to the circumstances, taking into account Orquest’s difficulties. If no solution is found within thirty (30) days, Orquest may consider the order terminated without liability to itself by written notice to the Client.

15. APPLICABLE LAW AND JURISDICTION

15.1. This contract is of a commercial nature and is governed by Spanish law. The parties agree to submit any dispute arising from the interpretation, execution, or termination of this Contract to the jurisdiction of the competent courts of the city of Madrid, expressly rejecting any other forum that may correspond to them.