1.1 ORQUEST SOFTWARE (hereinafter ORQUEST) is an intelligent staff planning and management solution specifically designed for the retail and QSR industries. ORQUEST has a specific module for the real-time management and control of store performance indicators (hereinafter “KPI”) commercially called “KPI Management”.
1.2 ORQUEST SOFTWARE is offered in SaaS (Software as a Service) mode from the cloud infrastructure offered by Amazon AWS.
1.3 The FREEMIUM Service of the “KPI Management” module, as detailed in http://orquest.com allows retailers to intelligently control and monitor in real time the performance KPIs of the store and of each of the associates working in it.
1.4 As a consequence of the free nature of the FREEMIUM Service, ORQUEST reminds the Customer that no warranty (at the service level) is granted in relation to this free service.
2.1. 2.1. Customer represents, covenants, and warrants that Customer will use the FREEMIUM Services only in compliance with ORQUEST’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. The Customer undertakes to not violate third parties’ rights, specially those regarding copyrights, personal data protection and confidentiality, at the establishment and use of the FREEMIUM service. In any case, it should be noted that the Customer uses the FREEMIUM functions of the KPI Management module taking full and exclusive responsibility. In particular, the Customer is solely ans absolutely responsible for the data introduced in the solution.
2.2. 2.2. The Customer hereby agrees to indemnify and hold ORQUEST harmless from and against any and all damages, losses, damages, liabilities, settlements and expenses (including, without limitation, legal fees and costs) in connection with any claim or action arising out of any alleged breach of the foregoing. Although ORQUEST has no obligation to monitor the Customer’s use of the FREEMIUM Services, it shall have the right to do so and may prohibit any use of the Services which in its opinion is (or may constitute) a breach of the foregoing.
2.3. 2.3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.4 ORQUEST shall have no liability whatsoever: (a) for abnormal or unlawful use of the Software Services offered by ORQUEST, (b) for use of the Solution in breach of the provisions of this Agreement, (c) for temporary inability to access the ORQUEST Software due to technical maintenance operations or outages involving the internet network, independent of ORQUEST, (d) for viral attacks, (e) due to a default or error attributable to the CUSTOMER, (f) non-compatibility of the Software Service with the equipment and computer programs used by the Customer.
2.5 ORQUEST does not guarantee that the use of the FREEMIUM Service will generate an increase in turnover, nor shall ORQUEST incur any liability for any indirect damage, for any financial or commercial loss, loss of profit, business difficulties, damage to a third party, or legal action by a third party against the Customer, as well as its consequences, those associated therewith or their execution. The Customer is solely liable for any loss, direct or indirect, substantial or otherwise, caused by it or any of its employees to ORQUEST or any third party arising out of or resulting from the use of the ORQUEST Software.
3.1. 3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of ORQUEST includes non-public information regarding features, functionality and performance of the Services offered, whichever its nature or format, or the contents of the disclosed information. As for Confidential Information of the Customer, it includes non-public data provided by Customer to ORQUEST to enable the provision of the Services (“Customer Data”). In any case, the Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by its prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2. Notwithstanding anything to the contrary, ORQUEST shall have the right collect and analyze, for statistical purposes and in an aggregated form, data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and ORQUEST will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other ORQUEST offerings, and (ii) disclose the aforementioned data, only in an aggregated or anonymized form, regarding its activity. No additional right or license is hereby granted, outside those mentioned in this document.
4.1. Customer shall own all right, title and interest in and to the Customer Data. ORQUEST shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) all intellectual property rights related to any of the foregoing, and (d) any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.
4.2. All the contents, materials, visual elements, texts, logos, etc. used in the software developed by ORQUEST and the FREEMIUM service are protected by the applicable laws an regulations on Copyright. Customer cannot use them for means differing from those specifically authorized in these Terms and Conditions, or in ways contrary to the provisions of law or accepted principles of morality, or in any manner that could be defined as disloyal behavior.
4.3. In case industrial and intellectual property rights are violated, ORQUEST reserves the right to exercise all those legal actions available against the Customer to uphold its rights.
5.1. ORQUEST shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ORQUEST or by third-party providers. ORQUEST does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and ORQUEST disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
6.1. Notwithstanding anything to the contrary, except for bodily injury of a person, company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business except for the case in exhibit c; (b) for any indirect, exemplary, incidental, special or consequential damages; or (c) for any matter beyond company’s reasonable control.
7.1. The provision of the described services to the Costumer does not imply the treatment of personal data by ORQUEST, except for those related to the persons who sign, the designated users or the contact persons detailed by the Customer in order to keep the relationship correctly. The aforementioned information comprises identifying and professional data (name, surname, email, username, etc.) of the persons designated by the Customer. They will be treated only for the purpose of providing the services, which is entitled by the necessity to execute this contract.
Also, in case it has been consented by the Customer, ORQUEST may treat the given data for information purposes, to keep the costumer aware of new services and offers by ORQUEST.
This data will be conserved during and after the term hereof, for the time legally established during which responsibilities by the parties may arise.
Communication and international transference of data are not included, unless legal obligation arises or they are necessary in order to execute this contract or provide the services. In that case, the appropriate warranties shall be applied to protect them. The Costumer may exercise his/her rights of access, amendment, cancel, oppose, limit and transfer at any time by sending a request and an image of his/her DNI to firstname.lastname@example.org. You can also contact our Data Protection Officer writing an email to email@example.com. In case your request is not attended, you can file a complaint with the Spanish Data Protection Agency.
7.2. During the provision of the service, ORQUEST may have access to data and information regarding the Customer’s activity, commercial information and business indicators in an aggregated form. This will not require the access to personal data by third parties or employees. Nevertheless, in case ORQUEST accesses personal data from third parties not included previously in this clause, they will be treated by REQUEST in its role of Data Processor, although the Customer will always hold its ownership in its role of Data Controller.
In that case, ORQUEST undertakes to keep confidential the accessible data and treat them in accordance with the provisions of Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
This data will be accessed with the only purpose of providing the requested services and just as long as the relationship with the Customer is kept. Also, they will not be used for any purpose differing from those specifically addressed in this contract, or otherwise communicated to third parties. This data will be eliminated once the relationship with the Customer ends. ORQUEST shall undertake the technical and organizational measures to guarantee the security, protection and confidentiality of the Customer’s Data, and will inform him/her of any incident known by ORQUEST regarding those data.
7.3. ORQUEST has outsourced its hosting and the provision of the developed solution to Amazon Web Services EMEA SARL (AWS) in the role of auxiliary service. In all cases, ORQUEST warrants a correct adequacy of the implemented security measures and the protection of the Customer’s information and data that may be accessed by this third party. Any change or modification may be informed to the Customer, although it will not require prior permission from the Customer, being it an auxiliary contractor regarding data protection.
8.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with ORQUEST’s prior written consent. ORQUEST may transfer and assign any of its rights and obligations under this Agreement without consent.
8.2. These Terms and Conditions, accepted by the Customer prior to the provision of the services, will be considered as a binding document, and they will regulate the relationship between the parties. This document will be accessible for the Customer at any given time, and it may be formalized either in English or in Spanish.
8.3. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind ORQUEST in any respect whatsoever.
8.4. For the sole purpose of promoting its experience and work carried out, ORQUEST may advertise in its presentations and offers the execution of this contract, without disclosing the scope or purpose thereof. The contracting parties must collaborate in good faith in the publication of at least one press release, drafted by mutual agreement, at least 120 days from the Effective Date, and the Client undertakes to collaborate reasonably with ORQUEST to serve as a reference account if so requested. The Client authorizes ORQUEST to include the Client’s logo on its web page and other marketing material, committing itself to collaborate in the elaboration of a practical case study and other promotional material. The cost associated with the production of such material shall be borne by ORQUEST.
9.1 Neither party shall be liable for failure to perform or delay in performing its obligations if caused by acts of war, hostility or sabotage; force majeure; pandemics; interruption of telecommunications, Internet or electrical services not caused by the obligor; governmental restrictions (including denial or cancellation of any export, import or other license); or any other event beyond the reasonable control of the obligor. Both parties will use reasonable efforts to mitigate the effects of a force majeure event.
10.1 This contract shall be governed by the substantive and procedural laws of Spain, and the Client and ORQUEST agree to submit to the exclusive jurisdiction of the competent courts of the city of Madrid, which are the headquarters of ORQUEST, for any dispute related to this contract.