TERMS AND CONDITIONS

The sales of subscription software license services in accordance with these general conditions, to be carried out by ORQUEST SOFTWARE, S.L. (hereinafter, “ORQUEST”), shall be governed by these General Subscription License Conditions, except in everything that is expressly agreed differently in the corresponding offer or in the acceptance of the order, constituting the specific conditions in each particular case. Therefore, any other conditions not expressly accepted by ORQUEST shall be deemed to be of no value for all purposes.

These General Conditions shall be deemed communicated to the Customer from the moment the Customer is notified of the web page where they are located or receives a purchase order from ORQUEST referring to these Conditions. Alternatively, they shall be considered communicated if the Customer received them previously in the course of their commercial relationship with ORQUEST, being considered, in all these cases, accepted by the Customer for all purposes upon placing an order.

Unless expressly agreed in writing by ORQUEST, these general conditions for the sale of subscription license services take precedence over any other provisions, regardless of their nature, even those promulgated subsequently, particularly those that may appear in other documents of the customer. Consequently, any obligation regarding ORQUEST’s liability without its express written consent shall not be enforceable against it.

1. DESCRIPTION OF THE SERVICE

1.1 ORQUEST is an intelligent planning and management solution for staff specifically and exclusively designed and intended for professional needs in the context of establishments in the retail and fast-food sectors (hereinafter, the “Services” and/or “Software Services”).

1.2 ORQUEST SOFTWARE is offered as a SaaS (Software as a Service) solution from the cloud infrastructure provided by Amazon AWS.

2. SAAS SERVICES AND SUPPORT

2.1. Subject to the terms of this Agreement, ORQUEST will use all its commercially  efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit C.

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

3. RESTRICTIONS AND LIABILITIES

3.1. The Customer declares, commits, and guarantees that they will use the Services solely for the purpose for which they were created and in compliance with applicable laws and regulations. The Customer hereby agrees to indemnify and hold ORQUEST harmless from any damages, losses, harms, liabilities, out-of-court settlements, and expenses (including, merely as an example, legal assistance expenses and fees) related to any claim or action arising from any alleged violation of the foregoing. While ORQUEST is not obligated to monitor the Customer’s use of the Services, it has the right to do so and may prohibit any use of the Services that, in its opinion, constitutes or may constitute a violation of the foregoing.

3.2. The Customer shall be responsible for obtaining and maintaining the necessary equipment and auxiliary services to connect, access, or otherwise use the Services, including, without limitation, modems, physical computer devices (hardware), servers, logical computer elements (software), operating systems, network connections, web servers, and the like (collectively referred to as the “Equipment”). The Customer shall also be responsible for maintaining the security of the Equipment, the Customer’s account, passwords (including, merely as an example, administrator and user passwords), and files, as well as all uses of the Customer’s account or Equipment, whether with or without the knowledge or consent of the Customer. Additionally, the Customer shall not alter the software provided by ORQUEST for the provision of the Services.

3.3. ORQUEST shall have no liability for: (a) abnormal or unlawful use of the software service offered by ORQUEST, (b) use of the solution that violates the provisions of this agreement, (c) temporary inability to access the ORQUEST solution due to internet network operations or technical maintenance interruptions unrelated to ORQUEST, (d) viral attacks, (e) a breach or error attributable to the CLIENT, (f) incompatibility of the Software Service with the equipment and computer programs used by the Customer.

3.4. The intellectual and/or industrial property of the Services, and information related to them, as well as the technical documentation and software incorporated or related to the Services, belong to ORQUEST. Therefore, their use by the Customer for purposes other than fulfilling the order is expressly prohibited, as is their total or partial copying or transfer of use to third parties without the prior written consent of ORQUEST. The Customer must treat the software as any other copyrighted material. The written material and software resident in the system cannot be copied.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1. Each party (hereinafter, the “Receiving Party”) is aware that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information related to the activities of the Disclosing Party (hereinafter, “Proprietary Information” of the Disclosing Party). ORQUEST’s Proprietary Information includes non-public information regarding the features, functions, and operation of the Services. The Customer’s Proprietary Information includes non-public data provided by the Customer to ORQUEST to enable the provision of the Services (hereinafter, “Customer Data”). The Receiving Party agrees to: (i) take all reasonable precautions to protect such Proprietary Information, and (ii) not use (except for the provision of the Services or in other circumstances contemplated herein) or disclose such Proprietary Information to third parties. The Disclosing Party agrees that the above shall not apply to any information after five (5) years from its disclosure, or to information that the Receiving Party can demonstrate (a) is or has become public knowledge, (b) was known or possessed by it before the Disclosing Party disclosed it, (c) was properly disclosed to it without restrictions by a third party, (d) was independently developed without using Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.

4.2. The Customer shall be the full owner of all rights and interests in, or related to, the Customer Data. ORQUEST shall retain and be the full owner of all rights and interests in, or related to, (a) the Services and the Software, as well as all improvements, expansions, or modifications thereof, (b) any software, application, invention, or other technology developed in connection with the Implementation Services or assistance, (c) all intellectual property rights related to any of the foregoing, and (d) any data based on or derived from the Customer Data and provided to the Customer as part of the Services.

4.3. Notwithstanding any provision to the contrary, ORQUEST shall have 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 Customer Data and data derived therefrom). ORQUEST shall be free (both during and after the term of this Agreement) to (i) use such information and data for the improvement and enhancement of the 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. No other right or license is granted other than those expressly stated herein.

5. PAYMENT OF FEES

5.1. The Customer 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 customer (hereinafter, “the Fees”), along with any applicable taxes and bank charges.

If the Customer’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 Customer in writing, requesting rectification of this situation, and will bill the Customer for such usage without additional cost, with the Customer committing to pay the additional fees as provided herein.

5.2. ORQUEST reserves the right to modify the Fees or applicable consideration up to a maximum of 10%, as well as establish new Fees and considerations at the end of the initial term of the Service or the current extension thereof, providing notice to the Customer thirty (30) days in advance (notice that may be sent by email).

5.3. In case the Customer believes that the billing by ORQUEST is incorrect, the Customer must contact ORQUEST within thirty (30) days from the closing date of the first billing statement in which the possible error or problem appeared, in order to obtain the corresponding credit or adjustment. Any such inquiries should be directed to ORQUEST’s finance department.

5.4. Payment shall be made via a bank transfer to the account of ORQUEST SOFTWARE S.L. held at BANCO SANTANDER with IBAN number ES05 0049 1817 0724 1028 8673 and BIC/SWIFT code: BSCHESMM within thirty (30) days following the Client’s receipt of the invoice issued by ORQUEST. Invoices issued by ORQUEST will be sent via email. Unpaid amounts are subject to 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, and 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.

5.5. In the moment of contract renewal, the price of Subscription Services will be updated relative to the price established in the original contract, adjusting 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 approval of the Client. Notwithstanding the above, ORQUEST may update the price of License Subscription Services by a percentage greater than the aforementioned, requiring the express written approval of the Client.

6. TERM AND TERMINATION

6.1. Subject to early termination as subsequently provided, this Contract will remain in force during the initial period specified in the Purchase Order for the Service.

6.2. This agreement will automatically be extended for additional periods of the same duration as the initial Service period (hereinafter collectively referred to as the “Term”), unless either party initiates termination by providing written notice to the other at least ninety (90) days before the end of the current period.

6.3. In addition to any other legal remedy available to the respective party, either party may also terminate this Contract by sending written notice to the other with a minimum advance notice of ninety (90) days, or without prior notice, in case of non-payment, or when the other party incurs a substantial breach of any of the terms and conditions of this Contract that is not rectified within fifteen (15) days after the written request from the other party to remedy the breach. In any case, the party terminating the contract reserves the right to claim damages, and also reserves the right for immediate withdrawal and suspension of access to the Services. The Client shall fully pay for the Services until the last day on which they were provided, inclusive. All provisions of this Contract that, by their nature, should survive the termination of this agreement will remain in effect after such termination, including, but not limited to, accrued payment rights, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. WARRANTY AND DISCLAIMER OF LIABILITY

7.1. ORQUEST will exert its reasonable best efforts, in accordance with prevailing industry practices, to provide the Services in a manner that minimizes errors and interruptions, and to deliver Software Services efficiently and professionally. Services may be temporarily interrupted for scheduled maintenance or unscheduled emergency maintenance, either by ORQUEST or third-party providers, as well as for other reasons beyond the reasonable control of ORQUEST. However, ORQUEST does not guarantee that the Services will be free from interruptions or errors.

8. LIMITATION OF LIABILITY

8.1. Notwithstanding any contrary provision, except in the case of personal injury to a person, the company and its suppliers (including, among others, all equipment and technology providers), directors, representatives, contractors, and employees will not be liable or obligated with respect to any matter under this agreement or the related terms and conditions under any contract, negligence, strict liability, or other theory: a) for any loss or interruption of use or for the loss, inaccuracy, or corruption of data or loss of business; b) for any indirect, exemplary, incidental, special, or consequential damages; c) for any matter beyond the reasonable control of ORQUEST; or d) for any amount that, when added to the amounts associated with all other claims, exceeds the fees paid by the Client to ORQUEST for the services rendered under this agreement in the 12 months preceding the act that gave rise to liability, in each case, whether or not ORQUEST has been advised of the possibility of such damages.

9. PERSONAL DATA PROTECTION

9.1. For the provision of services, ORQUEST needs to 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.

9.2. For the proper provision of services, ORQUEST requires carrying out the following processing operations: collection, recording, structuring, modification, storage, consultation, communication, interconnection, comparison, limitation, deletion, and destruction.

9.3. The personal data that ORQUEST may make available to the Client for service provision corresponds to the following categories: identification data, employment and academic details, and commercial information regarding suppliers, clients, users, and employees of the Client, as well as any other category of data or data subjects necessary for the provision of services. In any case, the processed data is 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 will be linked to the duration established in the service provision contract that implies access to personal data on behalf of ORQUEST.

9.4. In accordance with data protection regulations, the Processor and its staff commit to complying with the following obligations:

a) Process data exclusively for the purpose of providing the services, without using them for its own purposes. In the event that ORQUEST uses the data for its own purposes, it will be considered the Data Controller for such processing.

b) Process data in accordance with the Client’s documented instructions. Instructions will be provided to ORQUEST in writing, for example, via email. If ORQUEST believes that any instructions given by the Client violate any data protection regulations, it must inform the Client of this fact.

c) Not transfer or disclose, under any circumstances, the personal data subject to the processing activities entrusted to it to third parties, nor allow any access to them by third parties, except for 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 ensures that individuals directly or indirectly involved in the development of services expressly and in writing commit to respecting the duty of confidentiality and the obligation to maintain secrecy. Additionally, ORQUEST ensures the necessary training on data protection for authorized personnel processing personal data.

e) Confidentiality obligations will remain in force during the provision of the services under the contract and after its termination.

f) Assist the Client in ensuring compliance with obligations that may apply to them, taking into account the nature of the processing and the information available to ORQUEST.

9.5. ORQUEST commits to implementing the technical and organizational measures necessary, resulting from the Risk Analysis, and to carry out all acts required or simply recommended to strictly comply with its obligations under current regulations. In this way, the Processor must implement, in an illustrative and non-limiting manner, measures to:

a) Ensure the permanent confidentiality, integrity, availability, and resilience of the processing systems and services.

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

c) Regularly verify, assess, and evaluate the effectiveness of the technical and organizational measures implemented to ensure the security of the processing.

d) Pseudonymize and encrypt personal data.

9.6. ORQUEST will promptly, and in any case, within a maximum period of 36 hours from the effective knowledge, notify the Client of the existence of security breaches affecting personal data. The content of such notification will include, at a minimum:

a) A description of the nature and extent of the incident, including the category and approximate number of data subjects and records of affected data.

b) The name and contact details of the Data Protection Officer or another contact point where more information can be obtained.

c) The potential harmful consequences of the unauthorized access.

d) Measures taken by ORQUEST to mitigate potential negative effects.

If it is not possible to provide the above information simultaneously, and to the extent that it is not possible, ORQUEST must provide it gradually without undue delay.

9.7. ORQUEST will assist the Client through appropriate technical and organizational measures 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 as soon as possible and, in any case, within a maximum period of 48 hours, of requests to exercise rights submitted to it, along with other relevant information to address the request.

9.8. 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. If it is necessary to subcontract any processing, ORQUEST must 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 must grant or deny authorization within 10 business days. In case 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. Thus, 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.

9.9. ORQUEST, under no circumstances, will carry out activities involving the processing of personal data owned by the Client 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, informing the Client of this legal requirement. When it is necessary to make such international transfers for the provision of services, ORQUEST must obtain the authorizations and permits, as well as take the necessary measures to ensure an adequate level of protection at the destination, which 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.

9.10. 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 30 calendar days from the Client’s communication. If the option is to return the data and this is not possible or is technically very burdensome, in whole or in part, the personal data and all their media must be immediately destroyed, and in any case, within a period of less than 15 calendar days, through a procedure endowed with the highest guarantees.

However, ORQUEST may 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, a circumstance that will be communicated to the data processing Client without undue delay.

9.11. The parties are 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. The purpose is the management and fulfillment of the relationship between the parties, with the processing of personal data being necessary for the execution of this contract.

Personal data will be retained during the validity of the contractual relationship and, subsequently, during the 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. In any case, based on legitimate interest, data may be communicated between ORQUEST Group companies.

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. In the case of data subjects of ORQUEST, requests to exercise the mentioned rights can be made, as well as contacting the Data Protection Officer, via dpo@orquest.com.

If their request is not satisfied, data subjects have the right to lodge a complaint with the Spanish Data Protection Agency, at www.aepd.es.

10. MISCELLANEOUS PROVISIONS

10.1 In the event that any provision of this Agreement is deemed invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the rest of this Agreement continues to be in full force and effect. This Agreement may not be assigned, transferred, or sublicensed by the Client without the prior written consent of ORQUEST. ORQUEST may transfer and assign any of the rights and obligations attributed to it under this Agreement without the need for prior consent.

10.2 No agency, partnership, joint venture, or employment relationship is established under this Agreement, and the Client lacks any authority to bind ORQUEST for any purpose.

10.3 All notifications related to this Agreement 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.

10.4 For the sole purpose of promoting its experience and work, ORQUEST may advertise the execution of this contract in its presentations and offers, without revealing the scope or purpose of it. The contracting parties must cooperate in good faith in the publication of at least one press release, drafted by mutual agreement, at least 120 days from the Effective Date, with the Client committing to reasonably collaborate with ORQUEST to serve as a reference account if requested. The Client authorizes ORQUEST to include the Client’s logo on its website and other marketing materials, committing to collaborate in the development of a case study and other promotional materials. The cost associated with the production of such material will be borne by ORQUEST.

11. FORCE MAJEURE

11.1 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. When a Force Majeure event occurs, ORQUEST shall notify the Client as soon as possible, stating the cause and its foreseeable duration. It shall also notify the cessation of the cause, specifying the time in which it will fulfill the suspended obligation(s) due to it. The occurrence of a Force Majeure event shall entitle ORQUEST to a reasonable extension of the deadline for the provision of the 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 such solution can be found within the next thirty (30) days, ORQUEST may consider the order terminated, without liability on its part, by written notice to the Client.

12. APPLICABLE LAW AND JURISDICTION

12.1 This contract shall be governed by the substantive and procedural laws of Spain, and the Client and ORQUEST agree to submit exclusively to the jurisdiction of the competent courts of the city of Madrid, which hosts the central offices 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 intervals of scheduled maintenance that will be notified in advance to the Client. If the Client requests maintenance tasks during the computable hours, any period affected by such maintenance will be excluded from the calculation of Service availability times. Likewise, any unavailability resulting from an interruption of supply or connection services provided by third parties, or any other cause beyond ORQUEST’s control, will not be taken into account for this calculation.

The sole and exclusive compensation available to the Client, in relation to the availability of the Service, will be that ORQUEST will deduct from the annual fee the proportional amount of one day of Services for each period of 60 consecutive minutes (or more) of unavailability; although no more than one such discount per day can be accrued.

The unavailability interval will begin to be counted from the moment the Client becomes aware that the Services are not available (notifying ORQUEST) and will end once the availability is restored. To be eligible for the unavailability discount, the Client must notify ORQUEST in writing within 24 hours of the interruption; if it fails to do so, it will forfeit the right to benefit from such unavailability discount.

These discounts cannot be replaced by cash payments and, under no circumstances, can discounts collectively exceeding the Service Fee for one (1) week in one (1) natural month be accumulated. ORQUEST will only apply the discount to its annual billing corresponding to the year in which the incident occurs. The blocking by ORQUEST of its data communications and other Services in accordance with its own policies will not be considered a breach by ORQUEST of its agreed service levels under this Agreement.