TERMS AND CONDITIONS

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 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. 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 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 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, 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.

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.

5.5 At the time of contract renewal, the Subscription Services price will be updated by 3% relative to the price established in the original contract. This update will be applied automatically and will not require customer approval.

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 90 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.

7. WARRANTY AND DISCLAIMER

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 order to provide the services, ORQUEST needs to access and process the personal data on behalf of the Client, acquiring the status of Data Processor. In compliance with Regulation (EU) 2016/679, General Data Protection and other applicable regulations, the parties regulate said access and processing of personal data, in accordance with the following provisions.

10.2. For the correct provision of services, ORQUEST requires the performance of the following processing operations: collection, registration, structuring, modification, conservation, consultation, communication, interconnection, collation, limitation, deletion and destruction.

10.3. The personal data ORQUEST, among others, may make available to the Client for the provision of services correspond to the following categories of data: identification data, employment and academic details and commercial information related to suppliers, clients and users and employees of the Client as well as any other category of data or interested parties that is necessary for the provision of services. In any case, the data processed are adequate, pertinent and limited to the purposes of the Services and in no case may the Client use them for a different purpose. The duration of the treatment will be linked to the duration established in the contract for the provision of services that implies access to personal data on behalf of ORQUEST.

10.4. In accordance with the regulations on data protection, the Processor and its staff undertake to comply with the following obligations:

a) Treat the data exclusively for the purpose of the provision of services, without being able to use it for its own purposes. In the event that ORQUEST uses the data for its own purposes, it will be considered responsible for the treatment in relation to the mentioned treatment.

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

c) Not transfer or communicate, in any case, to third parties, the personal data object of the treatment activities that have been entrusted to it, nor allow any type of access to them by third parties.

d) Comply with the duty of secrecy and confidentiality regarding the personal data provided by the Client. ORQUEST guarantees that the people who participate, directly or indirectly, in the development of the services, expressly commit in writing to respect the duty of confidentiality and the obligation to keep secrets. Likewise, ORQUEST guarantees the necessary training in data protection for workers authorized to process personal data.

e) Confidentiality obligations will remain in force during the provision of the services object of the contract and once it has ended.

f) Help the Client to guarantee compliance with the obligations that may correspond to him, taking into account the nature of the treatment and the information available to ORQUEST.

g) Collaborate with the Client in carrying out Impact Assessments and Risk Analysis derived from the treatments carried out as a result of the provision of the Services.

h) Assist the client in carrying out prior consultations with the control authority, when appropriate.

10.5. ORQUEST undertakes to implement the technical and organizational measures that may be necessary, resulting from the Risk Analysis and to execute all those acts required or simply recommended to strictly comply with the obligations that correspond to it, in accordance with current regulations.

In this way, the Processor must implement, merely by way of example and not limitation, measures that allow:

a) Guarantee the confidentiality, integrity, availability and permanent resilience of treatment systems and services.

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

c) Verify, evaluate and assess, on a regular basis, the effectiveness of the technical and organizational measures implemented to guarantee the safety of the treatment.

d) Pseudonymize and encrypt personal data.

10.6. ORQUEST will notify the Client, without undue delay, and in any case, within a maximum period of 36 hours from effective knowledge, of the existence of security violations that affect personal data.

The content of said communication will be, at a minimum, the following:

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

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

c) The possible harmful consequences of illegal access.

d) The measures adopted by ORQUEST to mitigate the possible negative effects.
If it is not possible to provide the above information simultaneously, and to the extent that it is not, ORQUEST must provide it gradually without undue delay.

10.7. ORQUEST will assist the Client through appropriate technical and organizational measures in fulfilling its obligation to respond to requests that have as their object the exercise of the rights of the interested parties 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 the requests for the exercise of rights presented to him, together with other relevant information to attend to the request.

10.8. ORQUEST may not resort to another person in charge of the treatment, incorporate or replace other managers without the prior written authorization of the Client, except for the auxiliary services necessary for the normal operation of the ORQUEST services.

If it is necessary to subcontract any treatment, ORQUEST must communicate this fact to the Client, in writing and in advance, indicating the treatment’s object of subcontracting, as well as the identification of the third party in charge. The Client must grant or deny the authorization within 10 working days. In case of not having received a response within said period, it will be understood as denied.

If subcontracting is authorized, the subcontractor, who will have the status of treatment manager (hereinafter, “sub-manager”), will also be obliged to comply with the obligations established in this Contract for the Manager and the instructions issued by the Client. Thus, ORQUEST must formalize the relationship with the sub-manager in the same terms and conditions in relation to the processing of personal data provided for in this Agreement. In any case, the Client of the treatment will have the right to demand a copy of said contract from the Manager.

In the event of non-compliance by the sub-manager, ORQUEST will remain fully responsible to the Client in relation to the fulfillment of the obligations.

10.9. Under no circumstances ORQUEST will carry out activities that involve the processing of personal data owned by the Client in third countries outside the European Economic Area without their prior written authorization, unless it is obliged to do so by virtue of the law of the Union or of the Member State. , informing the Client of this legal requirement.

When for the provision of services it is necessary to carry out said international transfer, ORQUEST must obtain the authorizations and permits, as well as adopt the necessary measures to guarantee an adequate level of protection in the place of destination, being able to adopt, among others, approved standard contractual clauses by the European Commission.

In any case and in matters not provided for in this clause, ORQUEST must comply with the provisions of articles 44 and following of the RGPD regarding international transfers of personal data.

10.10. At the end of the services that require the access and processing of personal data, ORQUEST must, at the Client’s choice, return or destroy them within a maximum period of 30 calendar days from the Client’s communication.

In the case of opting for the return of the data and this is not possible or is technically very burdensome, in whole or in part, the personal data and all its supports must be destroyed immediately, and in any case, within a period less than 15 calendar days, by means of a procedure endowed with the maximum guarantees.

However, ORQUEST may keep a copy with the data duly blocked as long as responsibilities may arise from the execution of the service or it is obliged to do so by virtue of the law of the European Union or of the Member States of the European Union, a circumstance that will be communicated to the Client of the treatment without undue delay.

10.11. The parties are informed of the processing of their personal data as a result of this contract. The data subject to treatment will be those related to the signatories, contact persons and other participants in the provision of the service. The purpose is the management and fulfillment of the relationship between the parties, being the processing of personal data necessary for the execution of this contract.

Personal data will be kept during the term of the contractual relationship and, subsequently, during the periods in which any type of responsibility may arise.

Personal data will not be communicated to third parties or transferred internationally except in those cases in which there is a legal obligation or it is necessary for the execution of the contract. In any case, based on legitimate interest, the data may be communicated between the companies of the ORQUEST Group.

The owners of personal data may exercise their rights of access, rectification, deletion, portability and limitation of treatment, by contacting the addresses indicated in the heading of this contract. In the case of interested parties of ORQUEST, the exercise of the aforementioned rights may be requested, as well as contacting the Data Protection Delegate through dpo@orquest.com.

In the event that their request is not satisfied, the interested parties have the right to file a claim with the Spanish Agency for Data Protection, at the address www.aepd.es.

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 24 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.