Las presentes Condiciones Generales, junto con los documentos que aquí se mencionen, se aplican al uso del Software titularidad de ORQUEST SOFTWARE, S.L. sociedad de nacionalidad española, con domicilio social en Calle Albasanz, nº 16, (28037)- Madrid, provista de NIF B-88.422.050, e inscrita en Registro Mercantil de Madrid, Tomo 39.374, Folio 92, Hoja M-699.129 (“ORQUEST”). Las presentes condiciones generales, junto con la orden de compra y el documento de alcance del trabajo (“SoW”) serán denominados conjuntamente como los “Términos y Condiciones” o el “Contrato”).

La utilización de los Servicios ofrecidos por ORQUEST conlleva la aceptación plena y sin reservas de las presentes Condiciones por parte del ClienteEn ocasiones, la reserva o uso de algunos Servicios pueden encontrarse sujetas a condiciones particulares las cuales, según los casos, sustituyen, completan y/o modifican parcialmente las presentes Condiciones. Por lo tanto, los Clientes han de tener en cuenta que también pueden resultar aplicables las correspondientes condiciones particulares que se le muestren en las fichas descriptivas u hojas de contratación durante el proceso de compra o reserva. 

Cualesquiera otras condiciones no aceptadas expresamente por ORQUEST se considerarán sin valor a todos los efectos. ORQUEST podrá modificar en cualquier momento las presentes Condiciones para adaptarlas a potenciales cambios regulatorios, debido a modificaciones técnicas o funcionales de https://orquest.com/ (el “Sitio Web”), como consecuencia de cambios en los Servicios prestados o para su adecuación a las prácticas, usos y costumbres del sector. 

En caso de que se produzcan cambios relevantes, ORQUEST facilitará información suficiente por medio de avisos en el Sitio Web o a través de cualquier tipo de comunicación dirigida a los Clientes.

1. DESCRIPTION OF THE SERVICES

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

2. Likewise, these Terms and Conditions shall be applicable in any other services that may be provided regarding the software, such as User Support Services, and the technical support services as stated in the Purchase Order signed with the Client (altogether, the “Services”).

2. SUPPORT SERVICES AND SAAS SUPPORT  

2.1 The Client shall be entitled to all updates that ORQUESTS implements in the Software during the term of the Licence, at no additional cost. Such updates may include corrections, evolutions or improvements that ORQUEST implements in the Software regarding the existing functionalities in the version under contract.

2.2 The Licence price confers on the Client the right to use the available Software version at the moment of its purchase, as well as any updates that may implement during the term of the Contract. The price also includes, at no additional cost, Technical Support Services from ORQUEST. 

2.3 As part of the Technical Support Services, ORQUEST shall provide assistance and support for the incidents resolution and for the corrective maintenance of potential errors or bugs that affect the Software. 

2.4 Additionally, the Client may contract the User Support services offered through a specific channel enabled on the Website (chatbox) that ORQUEST makes available to the Client for the purpose of providing assistance and orientation about the characteristics and functionalities of the Software, as well as clarifications and orientation about its operating. The Client accepts that, by using the Services, any assistance or user support is complementary and does not replace the technical support services included in the price of the Licence and/or Services.   

2.5 The assistance service and technical support of ORQUEST shall be available Monday to Friday, from 9.00 am to 7.00 pm (excluding public holidays in the Community of Madrid).

3. AVAILABILITY

3.1 The Client understands and accepts that ORQUEST may not guarantee that the Software shall be available uninterruptedly 100% of the time. ORQUEST shall make all reasonable efforts for the Software to be available for its access and use for the Client in a monthly average of at least 99% of the time, excluding permitted unviability periods (“Availability Objective”). 

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

3.3 “Planned Interruptions” means the period of time during which ORQUEST carries out programmed maintenance works of the systems in which the Software operates. Excepting urgency circumstances or security motives. ORQUEST compromises that the Planned Interruptions shall take place outside the work time stablished on clause 3.1 or previous notice to the Client 24 hours in advance when the maintenance works may not be delayed.

3.4 In the event that, apart from the Permitted Unavailability Periods, the Availability Objective is not fulfilled in a monthly period, the Client shall be entitled to have ORQUEST deduct from the annual fee the proportional amount of one day Services for each period of 60 consecutive minutes (or more) of unavailability; although no more than one of these discounts may be accumulated per day. Such reduction shall be applied by means of a compensation in the next invoice. The annual fee reduction shall be the only right of the Client and the sole responsibility of ORQUEST, for the breach of the Availability Objective. The Availability Objective breach shall start counting from the moment in which the Client is aware that the Services are not available (noticing to ORQUEST) and shall finalize once the availability is restored. In order to claim the unviability discount, the Client shall notify it in writing to ORQUEST in the next 24 hours to the interruptions. If they not do so, they will lose the right to benefit from such unviability discount. 

3.5 These discounts may not be replaced for cash payments and, under any circumstance, may the discounts be accumulated that they exceed collectively the Service Fee for one (1) week in one (1) natural month. ORQUEST shall only apply the discount to its annual invoicing regarding the year in which the incident occurred. The block from ORQUEST of its data communications and other Services according its own policies shall not be considered a breach by ORQUEST of its agreed service levels under this Agreement. 

4. TERMS OF USE

4.1 The Client is obliged to do a diligent use of the Software subject to the foreseen terms in this Contract and in the applicable law. 

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

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

4.4 The Client shall be the sole responsible for how they use the functionalities offered by the Software, as well as the files control, data, statistics, and other content linked to the Software’s use which, if applicable, are stored in their equipment or in ORQEST’s systems. 

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

4.6 The Client shall be the sole responsible for the use of the Services made by their employees and for any incident or responsibility derived from such use, including any eventual damages or defects that they may cause to the Software. Likewise, the Client is the sole responsible for commercial relations or of any nature maintained with the Third Parties, as well as for any responsibility that may arise from them, of which ORQUEST shall in no case be part. 

4.7 In no case and under no circumstance shall ORQUEST be responsible to the Client or to any third parties for any damage, lost, cost, compensation, penalty or detriment derived from: (i) breach by the Client of the stablished obligations in these Terms and Conditions; (ii) use of the Client of the Software contravening the specifications contained in the technical documentation or infringing these Contract terms; (iii) failure of the Client to comply with any legal obligations owed to themselves; (iv) faults or lack of diligence which are solely attributable to the Client, to their staff or to any third party outside ORQUEST; (v) contractual relations of the Client maintained by with their clients, providers or any person or company with which ORQUEST has no legal relation; or (vi) the content, files or data stored, transferred or disseminated by the Client through the Software that may be contrary to the legislation or may infringe third parties rights.  

4.8 The Client shall compensate and shall maintain ORQUEST harmless from any damage, lost, cost, compensation, penalty or detriment that may be claimed or imposed to ORQUEST as a consequence of the forementioned circumstances. 

5. PROHIBITIONS

5.1 The Client under no circumstance may assign, sublicense, resell, rent or transfer to any third parties the rights of use attributed to them regarding the Software by virtue of the Licence and in no event shall be authorized to use, distribute or commercially exploit the Software. 

5.2 In no event the Licence permits the Client to decipher, decompile or disassemble, or to try to decipher, decompile or disassemble, totally or partially the Software, or perform reverse engineering works or to in any other manner try to ascertain the algorithms, programs, or codes regarding the Software with the target of copying, reproducing or developing or obtaining an equal technology, equivalent or similar. Nor it permits the Client to perform or authorize any third parties to make modifications, adaptations or successive or derived versions of the Software with no previous authorization from ORQUEST. 

5.3 Under no circumstance the Client may:

• Modify, interfere or manipulate the Software, use or try to access to functionalities or systems to which has no given access or that are of restricted use, as well as performing any act which eludes or manipulates the potential restrictions or security measures or installed control; 
• Try to probe, investigate, analyse, explore or prove the Software’s vulnerability or ORQUEST’s informatic systems, or try to disassemble, decipher or deactivate any measure or security system, control or authentication regarding the Software or the systems or technologies with which operates;
• Host or store in ORQUEST’s systems or through the Software files or contents that infringe intellectual or industrial property rights of third parties or that are fraudulent, unlawful or illegal; and
• Damage or generate a damage threat to ORQUEST’s systems and networks linked to the Software, manipulate or attempt to manipulate the access to themselves in any manner, or possess programs or tools dedicated to hacking or computing system assaulting, including viruses, sniffers, spoofers, bouncers, port scanners, cracks, exploits and similar. 

5.4 The Software is equipped with automatic control mechanisms and systems to monitor and control that the Software is used in accordance with the terms stablished in this Contract and, without detriment of any legal actions which may be undertaken in order to claim suffered damages, shall be entitled to revoke the Licence and restrict immediately the access to the Services as soon as it has record of the Client or any person under their charge o with their authorization breaches the stablished restrictions in this Contract. 

6. LICENCE AND INTELLECTUAL PROPERTY RIGHTS

6.1 Under these Terms and Conditions, ORQUEST grants the Client a licence of temporary use, non-exclusive and nontransferable (the “Licence”) that allows the Software’s use and be receiver of the contracted Services with ORQUEST during the term of the Licence. 

6.2 The Licence has no limitation on the number of sessions that the Client may carry out through the Software, but its use is subject to a different price according to volumetric of sell points, among other parameters. 

6.3 The intellectual and industrial property rights inherent or associated to the Services – including, but not limited to, the Software, its design, architecture, programming, interfaces, source code, technology, graphic material, user manuals and technical documentation, as well as names, brands and logotypes associated to the Service-, as well as any updates, evolutions, adaptations or improvements that ORQUEST implements on the Software, belong and shall belong at all times to ORQUEST. 

6.4 Nothing in these Terms and Conditions shall be construed as an assignment or transfer of any proprietary rights in the Software. The Client acknowledges that no rights are granted to it in respect of the Software other than a mere licence to use the Software as an end user for the purposes and on the terms specified in these Terms and Conditions. ORQUEST reserves all rights not expressly granted to the Client under the Licence.

6.5 The Client compromises to respect at all times the intellectual and industrial property rights of ORQUEST regarding the Services and to not perform any action aimed to limit, appropriate, or infringe its rights. 

7. CONFIDENTIALITY; INFORMATION PROPERTY

7.1 For the purposes of this Contract, “Confidential Information” shall mean any information and documentation provided or exchanged between the Parties under this Contract by any medium that is designated as confidential or that should reasonably be understood as confidential because of its nature and its disclosure circumstances. Particularly, it shall be considered Confidential Information all technical information regarding the Software which ORQUEST may provide or make available to the Client, as well as the prices, fees, and commercial terms negotiated and/or agreed with the Client. 

7.2 The Party receiving Confidential Information (hereinafter, the “Receiving Party”) is obliged before the party who discloses Confidential Information (hereinafter, the “Disclosing Party”) to: (i) not disclose, disseminate, divulge or make public by any means the Confidential Information without the previous authorization of the Disclosing Party; (ii) adopt, at least, the same diligence and procedures used in the custody and protection of its own confidential information; (iii) restrict the access to the Confidential Information solely to employees, providers, representatives, and/or directors who may need access to it for tasks and actions regarding this Contract’s object provided that these people or entities are subject to the duty of secrecy under the Receiving Party; (iv) use the Confidential Information solely for the exercise of rights and compliance of the obligations stated in this Contract.

7.3 ORQUEST’s proprietary Information includes non-public information about the features, functions and operation of the Services. The Client’s proprietary Information includes non-public data provided by the Client to ORQUEST to enable the provision of the Services (hereinafter, “Client’s Data”). The Receiving Party is committed to (i) take all reasonable precautions to protect such Exclusive proprietary Information, and (ii) not use (excepting 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 be applicable to any information after five (5) years from its disclosure, or to the information that the Receiving Party may demonstrate that (a) is or has become of public knowledge, (b) was properly disclosed to it without restriction by a third party, (d) was independently developed without using Confidential Information of the Disclosing Party, or (e) is required to be disclosed by law. 

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

7.5 Notwithstanding any provision to the contrary, ORQUEST shall have the right to collect and analyse all data and other information related to the provision, use, and performance of various aspects of the Services and the systems and technologies related thereto (including, merely as an example, information related to Client 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 Software and Services and for other development, diagnostic, and correction purposes in connection with the Services and other offerings provided by ORQUEST, and (ii) disclose such data, solely in aggregated or anonymized form, in connection with its business, provided that these data shall not allow in any case to disclose Client’s Confidential Information. No other right or license is granted other than those expressly stated herein.

7.6 It shall not be under confidentiality obligation the information: (i) that is or becomes of public domain or knowledge without the Receiving Party intervention or fault, (ii) that has been independently developed by the Receiving Party without using the Disclosing Party’s Confidential Information; (iii) that is possessed by the Receiving Party before its disclosure by the Disclosing Party; or (iv) it must be revealed by rule of a legal provision or by court order. In this case, the party obligated to disclose the Confidential Information shall notify the Disclosing Party in writing in advance of such disclosure to allow the Disclosing Party to take any measures it deems appropriate to minimize any potential damages that the disclosure of Confidential Information may cause.

7.7 The confidentiality obligations set forth in this section shall remain in effect during the term of the Contract and for an additional period of two (2) years following its termination for any cause, unless otherwise agreed in writing between the parties.

8. FEES AND INVOCINCING

8.1 The Client shall pay ORQUEST the applicable fees at each moment for subscription licence 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.

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

8.3 The prices and discounts applied in the signed Purchase Order, are confidential and the Client obliges not to reveal them to third parties. The confidentiality obligations established in clause 7 of these Terms and Conditions shall apply to these prices, fees, and discounts, including the obligation to maintain their confidentiality during the term of this Contract and for an additional period of two (2) years following its termination.

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

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

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

8.7 In case that the Client considers that the invoicing by ORQUEST is incorrect, the Client must contact ORQUEST within thirty (30) days from the closing date of the first invocing 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.

8.8 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.

8.9 In the moment of contract renewal, the Fees of the 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 Fees of the Services by a percentage greater than the aforementioned, requiring the express written approval of the Client.

8.10 All mentioned fees are expressed in euros. Except where a different amount is specified at the time of contracting, the total price for each contracted service modalities may vary according to the applicable VAT to the Client.

9. TERM AND TERMINATION

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

9.2 Unless otherwise is specified In the Purchase Order or the parties agree and sign it in writing, this agreement will automatically be extended for additional periods of the same duration as the initial Service period, unless either party initiates termination by providing written notice to the other at least ninety (90) days before the end of the current period.

9.3 Either party may also terminate this Contract at any moment, prior written notice to the other, if this party substantially breaches the Contract and does not rectify it within fifteen (15) days from the reception of the written notice of such breach from the non-infringing party.

9.4 Upon termination of this Contract for any reason, all rights and obligations of the parties, and the licences granted by ORQUEST to the Client, shall terminate immediately, except for pending payments obligations which have arisen before the effective date of termination and any other provisions which, according to its terms, is intended to survive the termination or expiration of the Contract. Termination of the Contract on account of ORQUEST shall not exempt the Client from their obligation to pay the pending amounts in that moment and shall not imply the obligation of reimburse any prepaid fees. 

10. WARRANTY AND DISCLAIMER OF LIABILITY

10.1 ORQUEST makes the Software available to the Client with the functionalities and in the development state in which it is at the signing date of these Terms and Conditions. Without detriment of any updates, improvements or evolutions that discretionally may implement, ORQUEST solely guarantees the development level at which the Software is at the time of its contract, without ensuring or committing to any functionality not specifically identified, any expectation of satisfaction that the Client may have or the capacity to use them for specific purposes, activities, functions or actions that have not been specifically detailed by ORQUEST. 

10.2 The Client is the sole responsible of determining whether the Software and its functionalities are adjusted to their needs and meets the targets for which it is contracted for, so ORQUEST declines any type of responsibility in the event that it does not adjust to the specific needs or expectations that the Client may have. 

10.3 ORQUEST may not guarantee that the Software is fully free of faults, without detriment that, provided that it is up to date with the according Fee payments, ORQUEST assumes the responsibility of trying to solve the faults affecting the Software in the established terms in the Clause 2 of the present General Conditions. 

10.4 In any case, ORQUEST declines any kind of liability regarding faults, disconformities or consequences resulting from: (i) delays, faults or incidents referred to the provided connectivity services by Internet access providers or associated to the lack of capacity of the contracted connectivity services by the Client; (ii) unauthorized use in contravention of the specifications contained in the user manuals and technical documentation made available to the Client; (iii) manipulation or transformation of the Software by the Client or by any unauthorised third party by ORQUEST; (iv) damages, fluctuations, outages or any type of interruption or incidence affecting the Client’s systems, equipment or installation o due to the presence of viruses; (v) use of non-actualized software versions; (vi) force majeure circumstances; or (vii) out of control incidences and ORQUEST responsibility, such as informatic attacks, power cuts or telecommunication network outages.

11. LIMITATION OF LIABILITY

11.1 In any event and under no circumstance shall ORQUEST be responsible to the Client or to third parties of any fault, loss, cost, indemnity, penalty or detriment derived from: (i) compliance breach of the Client of the established obligations in these Conditions; (ii) use of the Client of the Software contravening the specifications contained in the technical documentation or infringing this Contract’s terms; (iii) breach of the Client of the enforceable legal obligations; (iv) faults or lack of diligence exclusively attributable to the Client, to their staff or any third party external to ORQUEST; (v) contractual relationships maintained by the Client with their clients, providers or any person or company with whom ORQUEST does not have a legal relationship; or (vi) any content, files or data that the Client stores, transmits or disseminates through the Software that may be contrary to the law or may infringe third party’s rights. 

11.2 The Client shall indemnify and hold ORQUEST harmless from any fault, loss, cost, indemnity, penalty or detriment that may be claimed or imposed to ORQUEST as a consequence of the beforementioned conditions. The eventual liability of ORQUEST under this Contract towards the Client shall solely be limited to the direct damages that it may suffer as a consequence of an attributable breach to ORQUEST, and, unless there has been wilful misconduct or gross negligence from ORQUEST or their staff, in any event and under no circumstance the maximum responsibility of ORQUEST towards the Client shall exceed the fees for the provided services by virtue of this Contract in the twelve (12) months preceding the event giving rise to liability. 

11.3 The express liability limitation contained herein is assumed by the Client as an essential condition and inexcusable for the subscription of the present Contract by ORQUEST. 

11.4 ORQUEST shall not be responsible under this Contract for any indirect, incidental or consequential detriment or damages, including the lost profit which the Client may suffer for the use of the Software or its unavailability, without detriment of the compensations which the Client is entitled to under this Contract.

12. PERSONAL DATA PROTECTION

12.1 As holder of the personal data of their own employees, the Client shall be responsible of their employee’s personal data and ORQUEST shall limit to process the personal data of their employees as data processor, on behalf of and in the interests of the Client.  

12.2 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.

12.3 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.

12.4 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 information regarding the Client’s employees (full name, abilities , job position and working calendar).  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.

12.5 In accordance with data protection regulations, the Processor and their staff commit to complying with the following obligations:

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

12.6 ORQUEST commits to implement the technical and organisational measures, resulting from the Risk Analysis, and to accomplish all required actions or simply recommended to strictly comply with its obligations by virtue of the law in force. In this manner, the Controller shall implement, merely as an example and not limited to, measures to:

• Secure the permanent confidentiality, integrity, availability and resilience in the processing systems and services.
• Restore rapidly the availability and access to personal data in case of a physical or technical incident.
• Verify, asses and valuate periodically the effectiveness of the technical and organisational measures implemented to guarantee the processing security.
• Pseudonymise and cypher of personal data. 

12.7 ORQUEST shall notify promptly, and in any case, in the maximum term of 36 hours from the effective knowing of the event, to the Client the security breach existence affecting personal data. The content of such notification shall include, at least:

• A description of the incident nature and reach, including the category and approximate number of interested parties and the affected data registers. 
• Name and data of the Data Protection Delegate contact or other contact point where it may be possible to obtain further information.
• Possible detrimental consequences of the unauthorized access. 
• Adopted measures from ORQUEST to mitigate the possible negative effects

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

12.8 ORQUEST shall 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.

12.9 ORQUEST may not engage another data processor, incorporate, or replace other processors without the prior written authorization of the Client, except for auxiliary services necessary for the normal operation of ORQUEST’s services. 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.

12.10 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.

12.11 Upon completion of services that require access to and processing of personal data, ORQUEST must, at the Client’s choice, either return or destroy them within a maximum period of sixty (60) calendar days from the Client’s communication. If 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.

12.12 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.

12.13 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 fulfilment of the relationship between the parties, with the processing of personal data being necessary for the execution of this contract.

12.14 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.

12.15 Data subjects may exercise their rights of access, rectification, erasure, portability, and restriction of processing by contacting the addresses indicated in the header of this contract. 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. 

12.16 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.

13. MISCELLANEOUS DISPOSALS

13.1 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.

13.2 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.

13.3 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.

13.4 The Client expressly authorises ORQUEST to use its name and logo as a reference on its website and/or in commercial services. In any case such use shall solely conduct for the purposes of identifying the Client as ORQUEST’s customer. Likewise, the Client and ORQUEST shall collaborate in good faith in the publication of at least a press release, written in mutual agreement, in a minimum term of four (4) months from the initiation of the services according to the purchase order, committing the Client to collaborate reasonably with ORQUEST to serve as reference account if requested to do so. The Client commits to collaborate in the development of a case study and other promotional material. Any associated cost to the drafting and production of such material will be assumed entirely by ORQUEST.

14. FORCE MAJEURE

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

14.2. 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.

15. APPLICABLE LAW AND JURISDICTION

15.1. The present Contract is of a commercial nature and is governed by Spanish law. The parties agree to submit any dispute aroused in the relation regarding interpretation, execution, or termination of the present Contract to the jurisdiction of the competent courts of the city of Madrid, with express refusal of any other forum that may correspond to them.