TERMS AND
CONDITIONS FREEMIUM

Index

TERMS AND CONDITIONS FREEMIUM

1. DESCRIPTION OF THE SERVICE

1.1 ORQUEST SOFTWARE (hereinafter ORQUEST) is an intelligent staff planning and management solution specifically designed for the retail and fast-food 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.

2. SAAS SERVICES AND SUPPORT

2.1. Subject to the terms of this Agreement, ORQUEST will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Appendix A “Service Level”.

2.2. Subject to the terms hereof, ORQUEST will provide Customer with reasonable technical support services in accordance with the terms set forth in the “Technical Assistance” section.

3. RESTRICTION AND RESPONSABILITIES

3.1. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless ORQUEST against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Although ORQUEST has no obligation to monitor Customer’s use of the Services, ORQUEST may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3.2. 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.

3.3. 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.

3.4 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.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1. 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 “Proprietary Information” of the Disclosing Party). Proprietary Information of ORQUEST includes non-public information regarding features, functionality and performance of the Service, as well as the commercial conditions of this Agreement. Proprietary Information of Customer includes non-public data provided by Customer to ORQUEST to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary 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 Proprietary 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.

4.2. 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.

4.3. Notwithstanding anything to the contrary, ORQUEST shall have the right collect and analyze 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. No additional right or license is hereby granted, outside those mentioned in this document.

5. PAYMENT OF FEES

5.1. Customer will pay ORQUEST the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”), plus any other applicable taxes and bank service fees.

If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.

5.2. In the event of a renewal of this Agreement after the end of the Service Term, ORQUEST reserves the right to change the Fees or applicable charges, by up to 10%, and to institute new charges and Fees at the end of the Service Term or the then current renewal term, upon forty five (45) days prior notice to Customer before the end of the term (which may be sent by email).

5.3. If Customer believes that ORQUEST has billed Customer incorrectly, Customer must contact ORQUEST no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to ORQUEST’s customer support department.

5.4. . Payment will be made by means of a bank transfer to the bank account of ORQUEST SOFTWARE S.L. opened in the bank BANCO SANTANDER with IBAN number ES05 0049 1817 0724 1028 8673 and BIC/SWIFT-code: BSCHESMM within thirty (30) days following the receipt by the Client of the invoice issued by ORQUEST. Invoices issued by ORQUEST will be sent via email. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than Spain taxes based on ORQUEST’s net income. All prices in the order form and in any other parts of this Agreement exclude VAT.

6. TERM AND TERMINATION

6.1. Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form.

6.2. This agreement shall be automatically renewed for additional periods of three years at the end of the Service Term, unless there is an explicit written notice by Customer or ORQUEST 30 days in advance.

6.3. In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement and provided that such breach has not been cured within a 30 days’ grace period following a notice of default from the non-defaulting party. This includes the case of non-payment, or where the other party is in material breach of any of the terms and conditions of this Agreement, including unavailability of service for more than 7 consecutive business days, or 10 non-consecutive business days in any three month period. Customer shall pay for the Services in full up to and including the last day on which the Services have been provided to Customer. All provisions of this Agreement which by their nature survive termination of this Agreement shall survive such termination, including, but not limited to, payment entitlements already accrued, confidentiality obligations, warranty disclaimers and limitations of liability.

6. LIMITATION OF LIABILITY

7.1 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, or because of other causes beyond ORQUEST’s reasonable control, but ORQUEST shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption and shall undertake all reasonable efforts to minimize any inconvenience caused by such service disruption. However, without prejudice to any expressly agreed rights of termination of customer, 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.

8. INDEMNITY

8.1 ORQUEST shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States or EU patent or any copyright or misappropriation of any trade secret, provided ORQUEST is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; ORQUEST will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by ORQUEST, (ii) intentionally deleted, (iii) that are modified after delivery by Customer, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by ORQUEST to be infringing, ORQUEST may, at its option and expense, (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

9. LIMITATION OF LIABILITY

9.1 Notwithstanding anything to the contrary, except for bodily injury of a person, ORQUEST 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; (c) for any matter beyond ORQUEST’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by customer to ORQUEST for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not ORQUEST has been advised of the possibility of such damages.

10. PERSONAL DATA PROTECTION

10.1. In the provision to the Client of the services described above, ORQUEST will be considered as the Data Controller, which implies access to the personal data processed by the Client as Data Processor.

10.2. In order to regulate the relationship between the parties in accordance with the provisions of Regulation (EU) 2016/679 of the European Parliament and of the 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, the parties undertake to comply with the following obligations:

(a) The data processor must process the data on behalf of the data controller, subject to the instructions determined by the latter and without using the data for purposes other than those provided for in this contract.

(b) ORQUEST, as Data Controller, shall have access for the provision of its services to the data of the persons designated by the Client as users of the platforms developed by ORQUEST, in particular to their professional e-mail addresses.

(c) ORQUEST undertakes to observe all the provisions, organizational and technical measures that may be necessary and to carry out all those acts that may be required or simply recommended in order to strictly comply with the obligations that correspond to it as data processor, in accordance with the regulations in force. Likewise, he or she must assist the person responsible for data protection in the fulfilment of the established obligations and keep the supporting documentation at his or her disposal. He/she will also collaborate with the Responsible in the response to the exercise of the rights by the interested parties.

(d) ORQUEST undertakes to keep the due confidentiality regarding the personal data to which it may have access during the provision of the service, even if the access was accidental, as well as to transfer this obligation to those workers involved in the data processing.

(e) The data processor undertakes to destroy or return, after the end of the service provision relationship, at the discretion of the data controller, the personal data to which he had access. Notwithstanding the above, the destruction of the data will not proceed when there is a legal provision that requires its conservation, in which case the data must be returned guaranteeing such conservation.

(f) The person in charge of the treatment must implement the technical and organizational measures that correspond to maintain the security of the data, avoiding its alteration, loss, treatment or non authorized access, all this in accordance with the state of the technology, the nature of the data and the possible risks to which they are exposed.

(g) The Parties will proceed to the treatment of the personal data contained in this contract, and the subsequent ones that may be generated during the execution of this contract, with the purpose of managing the relationship between the parties, legitimated in that such treatment is necessary for the execution of this contract.

(h) The processing may involve international transfers of data 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. The parties undertake to adopt the necessary compliance measures in case of international transfer of data, providing adequate guarantees to ensure compliance with data protection requirements and the rights of the data subjects. In particular, these measures must relate to compliance with the general principles relating to the processing of personal data and the principles of data protection from the design and default.

(i) The data will be kept after the end of the contractual relationship for the periods of time that arise from the prescription of legal actions related to this treatment.

(j) The interested parties may exercise their rights of access, rectification, suppression and portability of their data, limitation or opposition to the treatment by contacting the address indicated in the heading of this Agreement, attaching a photocopy of their DNI or similar document (driving license, NIE or passport) and indicating the right they wish to exercise. In addition, you can file a complaint with the Spanish Data Protection Agency at www.agpd.es.

10.3. Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

10.4. The Customer consents to ORQUEST appointing Amazon Web Services EMEA SARL (AWS) as a third-party processor of personal data under this Agreement. Where ORQUEST wishes to replace AWS or to appoint an additional third-party processor of personal data under this Agreement, ORQUEST confirms that it will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the Customer and ORQUEST, ORQUEST shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.

10.5. Either party may, at any time on not less than thirty (30) days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).

11. MISCELLANEOUS

11.1 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.

11.2 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.

11.3 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

11.4 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.

12. FORCE MAJEURE

12.1 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. If such an event persists for more than 30 days, either party may cancel outstanding Services and affected orders by giving written notice. This provision does not relieve the parties of the obligation to take reasonable steps to follow their normal disaster recovery procedures or Your obligation to pay for the Services.

13. APPLICABLE LAW AND JURISDICTION

13.1 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.

APPENDIX A

Service level conditions

The Services will be available 99.9% of the time, measured monthly, excluding holidays and weekends, as well as scheduled maintenance intervals that will be notified in advance to the Customer. If the Client requests maintenance tasks to be performed during the computable hours, any period affected by such maintenance will be excluded from the calculation of the times of availability of the Services. Likewise, any unavailability deriving from an interruption in the supply or connection services provided by third parties, or from any other cause beyond ORQUEST’s control, shall not be taken into account for said calculation.

The only and exclusive compensation available to the Client, which shall also be considered the maximum responsibility attributable to ORQUEST, in relation to the availability of the Service shall be that ORQUEST shall discount the Client from the monthly fee the proportional amount of one day of the Services for each period of 60 consecutive minutes (or more) of unavailability; although no more than one discount of this type may be accrued per day.

The unavailability interval will begin at the time the Client becomes aware that the Services are unavailable (by notifying ORQUEST), and will end when the availability of the Services is restored. In order to benefit from the unavailability discount, the Client must notify ORQUEST in writing of this circumstance within 12 hours of the interruption; if the Client does not do so, he or she will lose the right to benefit from the unavailability discount.

These discounts may not be replaced by cash payments, and in no case may discounts be accumulated, in one (1) same calendar month, for a collective amount greater than the Fee for the Services corresponding to one (1) week. ORQUEST shall only apply the discount to its invoicing corresponding to the month in which the incident occurs. The blocking by ORQUEST of its data communications and other Services in accordance with its own policies shall not be considered a breach by ORQUEST of its agreed service levels under this Contract.