Backup Ninja Terms of Service
- These General Terms are applicable to the Agreement between the Customer and the Company and set out the terms under which the Company shall provide the Services to the Customer.
- The Customer enters into the Agreement with the Company by filling out the relevant signup form located at the Company’s Web Site and by accepting these General Terms and any other terms applicable to the Agreement, as appropriate.
- The use of the Services is at all times subject to the Agreement.
- “Agreement” shall mean the agreement between the Company and the Customer, consisting of the above General Terms and any other terms applicable to the Services;
- “Services” shall mean the web-based SaaS services provided (branded Backup Ninja) by the Company to the Customer, as set out in the Agreement;
- “Company” shall mean Severalnines AB (Business ID: 556839-2897), a company duly registered under the laws of Sweden, having its principal place of business at Knipuddevägen 18, SE-394 77 Kalmar, Sweden;
- “Customer” shall mean the company or individual entering into the Agreement with the Company;
- “Intellectual Property Rights” shall mean any and all patents, utility models, design rights, copyrights (including the right to amend, modify, develop and assign), trademarks, trade names, inventions, trade secrets, domain names, know-how and any other industrial or intellectual property rights (including applications thereof);
- “Parties” and “Party” shall mean the Company and the Customer jointly and separately;
- “Subscription Fee(s)” means the compensation paid by the Customer for access to and use of the Services;
- “Web Site” shall mean the Company’s web site located at https://backup.ninja
- “Application” shall mean the Company’s Services website located at https://app.backup.ninja
Use of Services
- The Customer may use our services, provided that they have the authority to form a binding contract and are not barred from receiving such services under applicable local laws or jurisdictions.
- The Customer may access our services but will be required to provide current and factual identification, contact, and other information as part of the Web Site registration process.
- The Customer is solely responsible for all activities which occur within the Application and agrees to immediately notify the Company of any unauthorized use of their account or any other breach of security. The Company will not be liable for any loss or damage which results due to a failure of the Customer to provide us with accurate information or to keep your account secure.
- The service descriptions setting out the functionalities and features of the Services have been set out at the Company’s Web Site. The Company shall provide Services to the Customer substantially as set out in the service documentation.
- The Customer may order Services from the Company subject to the following:
- Subscriptions may be made by the Customer at the Company’s Web Site or at any other site owned and operated by the Company
- The Customer shall be responsible for any subscriptions made under the Customer’s account, whether by the Customer itself, by its authorized users, and shall be responsible for the payment of all Fees based on orders made under the Customer’s account;
- After completing the subscription, the Company shall provide Services to the Customer without undue delay after the Customer’s order.
- The Company reserves the right to make changes to the Services at any time.
- The Customer shall be responsible for paying any recurring Subscription Fees properly due in accordance with the Agreement.
- The Customer shall be responsible for its own devices, systems, applications, connections and software used to access the Services.
- The Customer shall be responsible for the protection of their customer’s data communications and data systems and costs for communications and other comparable costs related to the use of the Services.
- The Customer may authorize users to use the Services under the Customer’s account. The Customer shall ensure that any users it authorizes to use the Services under the Customer’s account comply with these Terms of Service at all times and use the Services only in accordance with the Agreement. The Customer shall be responsible for any use of the Services under the Customer’s account.
- The Customer shall be responsible for ensuring that its authorized users maintain their usernames and passwords diligently and not disclose them to third parties. The Customer undertakes to inform the Company without delay if any password has been revealed to a third party or if the Customer has a reason to suspect misuse of a username or password.
- The Customer shall change the password required for the use of the Services upon request of the Company if necessary due to data security risk to the Services.
- The Company (and its subcontractors where appropriate) reserve the right but assume no obligation to review the Customer’s use of the Services, including the Customer’s data to ensure compliance with the acceptable use policy and to discontinue any use by the Customer of the Services and removing any infringing data of the Customer. The Company (and its subcontractors where appropriate) may report suspected infringing activities to officials, regulators or other appropriate third parties, including the disclosure of appropriate information regarding the Customer.
- If the Customer becomes aware that its use of the Services infringes the policy set out herein, the Customer agrees to immediately cease the infringing use of the Services without separate notice. The Customer agrees to comply with any requests of the Company as regards to the ceasing of any use of the Services that infringes the policies set out herein.
- The Customer agrees that they will not engage in any of the activities listed below which are considered prohibited usage and may result in immediate account suspension or cancellation without refund.
- to violate, or encourage the violation of, the legal rights (including without limitation Intellectual Property Rights) of others;
- to engage in, promote or encourage any illegal activity;
- for any unlawful, invasive, infringing, defamatory, offensive, harmful or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
- to violate security or integrity of any network, computer or communications system, software application or network or computing device (such violations to include without limitation unauthorized access, interception of data or traffic or falsification of origin);
- to make connections to any users, hosts or networks unless the Customer has permission to communicate with them (such network abuses to include without limitation monitoring or crawling, denial of service attacks, intentional interference, operating open proxies, open mail relays or open recursive domain name servers, or to avoid system restrictions);
- to interfere with the use of the Services, or the equipment used to provide Services, by others;
- to disable, interfere with or circumvent any aspect of the Services;
- to use the Services, or any interfaces provided with the Services, to access any other product or service of the Company or its subcontractors in a manner that violates their applicable terms of service.
- by providing false data when registering for the Application, including fraudulent use of credit card numbers.
- Other activities viewed as Illegal or harmful such as engaging in illegal activities or engaging in activities harmful to the operations of the Company or its Customers.
Suspension, Discontinuation, or Termination of Service
- The Agreement shall remain in force until terminated by a Party. The Customer shall have the right to terminate the Services at any time.
- Upon the termination of the Agreement for any reason, any Fees owed by the Customer for any use of the Services until the effective date of the termination shall become immediately due.
- The Company shall have the right to suspend the provision of the Services for a reasonable period of time if this is necessary in order to perform installation, change or maintenance work in respect of the Services or if such suspension results from installation, change or maintenance work in respect of public communication networks.
- The Company shall also have the right to suspend the provision of the Services and/or deny the Customer’s access to the Services without first hearing the Customer due to a data security risk to the Services or if law or administrative order requires the Company to do so or if the Company becomes aware of or reasonably suspects any activities of the Customer or its authorized users that infringe on the policies set out in these Terms of Service or if the Services are used contrary to, or for a purpose prohibited by the Agreement, applicable laws or administrative orders or in a manner that jeopardizes the provision of the Services to other users .
- The Company shall always have the right to suspend the Services, if the Customer is in default with its payment of the Subscription Fees due under the Agreement. The suspension can be continued until the Customer has paid all Fees due under the Agreement.
- The Customer understands that the Services are hosted by a subcontractor of the Company chosen by the Customer from the options provided by the Company. Such subcontractors may reserve rights to discontinue their hosting at any time. The Company shall not be liable in any way for any discontinuation of such services provided by subcontractors.
- The rates applicable for the Services may be reviewed at the Company’s Web Site.
- The Company uses a credit card processing service provided by Stripe Payments Europe, Ltd. (https://stripe.com/) (“ Stripe”) to process its payments. The Customer consents to the use of the Stripe service and to the transfer of its credit card details (including any personal data contained therein) to Stripe. The Customer is familiar and agrees to be bound by any third party terms applicable to the Stripe service.
- The Subscription Fees for the use of the Services shall be charged via Stripe monthly. Unless otherwise agreed to between the Customer and Company.
- The Company reserves the right to increase the rates applicable to the Services where this is justified due to the general increase of the Company’s costs and expenses of production (such as but not limited to general increase of labor costs and expenses), or in the case of increase of costs of third party offerings. The Company shall inform the Customer of such change at least thirty (30) days before the effective date of the change. In such a case the Customer shall have the right to terminate the Agreement at that time.
- All rates and Fees are set out without value added tax (VAT) or any other applicable sales tax, which shall be added to the rates and Fees in accordance with the then-applicable tax laws and regulations.
Personal Data and Customer Data
- All facilities used to store and process the Customer’s data will adhere to reasonable security standards no less protective than the security standards at facilities where the Company (or its subcontractor as relevant) processes and stores its own information of a similar type.
- To the extent the Customer inputs any personal data in to the Services, the Company (or its subcontractor where appropriate) processes such data on behalf and for the benefit of the Customer while the Customer remains at all times the data controller for such personal data. The Company processes the personal data submitted by the Customer to the Company in accordance with the Customer’s instructions and applicable data protection legislation.
- The Company implements appropriate technical and organizational measures to secure the Customer’s personal data; such measures include implementing reasonable and sufficient confidentiality obligations.
- The Company shall assist the Customer in complying with its obligations under applicable data protection laws, including assisting in responding to requests by data subjects and supervisory authorities to the extent reasonably necessary. The Company shall notify the Customer of any data breaches concerning personal data. The Company shall be entitled to charge for any reasonable costs and expenses incurred as a result of such assistance.
- The Company shall make available to the Customer information reasonably necessary to demonstrate compliance with the applicable data protection laws and contribute to audits conducted by the Customer or its representative in relation to the processing of personal data by the Company. The Company shall be entitled to charge for any reasonable costs and expenses incurred to Company.
- The Customer understands, accepts and consents to that the Customer’s data may be provided to the Company’s subcontractors for the purposes of providing the Services and for securing and improving their services as well as other purposes set out in this Agreement. The Company shall reasonably ensure that such subcontractors are subject to equivalent requirements regarding confidentiality and data protection, as those set out in this Agreement.
Intellectual Property Rights
- All rights, title and interest, including all Intellectual Property Rights in and to the Services and any changes thereto shall belong exclusively to the Company or its licensors. Except for the express license to use the Services granted to the Customer under and in accordance with the terms and conditions of the Agreement, the Customer shall have no and shall not by virtue of the Agreement obtain any rights, license or interests in and to the Services or any Intellectual Property Rights pertaining thereto.
- The Customer shall have a limited non-exclusive, non-transferable, non-sublicensable right to use the Services during the term of the Agreement.
- This section sets out the entire liability of the Company and the Customer’s sole remedy in case of any infringement of any Intellectual Property Rights.
- The Company agrees to defend the Customer, at the Company’s own expense, against any third party claims or actions where a third party claims that the Services infringe upon Intellectual Property Rights of a third party valid in the European Economic Area (EEA), provided that the Customer:
- notifies the Company of such claim immediately upon receipt of notice thereof;
- provides the Company, free of charge, with all the available information, permissions and assistance;
- grants the Company the sole and exclusive right to control the defense of the claim; and
- does not agree on any settlement of such claim or action prior to a final judgment thereon by a competent court of law or court of arbitration, without the express prior written consent of the Company.
- If the Customer has acted in accordance with the above, the Company shall pay any damages finally awarded to the third party claimant by a competent court of law or court of arbitration.
- The indemnity in this section shall not apply to, and the Company is not liable for any claim that (a) is based on a claim by any Customer Affiliate; or (b) is based on the modification or alteration of the Services or a modification or alteration influencing the Services by the Customer or any third party; or (c) results from complying with any instructions, specifications or design given by the Customer or any third party under the command and control of the Customer; (d) arises or results from the use of the Services in combination with any software, equipment or products not developed or supplied by the Company or which are contrary to instructions given by the Company; or (e) could have been avoided by using the latest version of the Services made available by the Company to the Customer.
- The Customer agrees to indemnify the Company, at the Customer’s own expense, against any claims made towards the Company based on any information or data the Customer inputs to the Services, including without limitation claims that the Customer’s data infringes third party intellectual property rights or that the data otherwise infringes applicable laws.
- THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
Limitation of Liability
- The total aggregate liability of a Party towards the other Party under the Agreement shall not exceed (i) an amount corresponding the average monthly fee of the six (6) months preceding the event giving rise to the liability multiplied by six (6), or (ii) fifty thousand (50.000) Euro, whichever is less.
- A Party shall not be liable for any indirect, incidental, or consequential damages such as loss of profits, revenue or business, damages caused due to decrease in turnover or production or loss, alteration, destruction or corruption of data.
- The limitations of liability shall not apply to damages caused by willful misconduct or gross negligence or to liability under these Terms of Service.
- IN NO EVENT SHALL WE, NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES (I) FOR ANY LOST PROFITS, DATA LOSS, DATA THEFT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF FEES PAID TO US FOR THE PARTICULAR SERVICES DURING THE IMMEDIATELY PREVIOUS ONE MONTH PERIOD, EVEN IF OTTOMATIK HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. SUBSCRIBER ACKNOWLEDGES THAT THE FEES PAID BY HIM OR HER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT OTTOMATIK WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS. SUBSCRIBER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST OTTOMATIK ARISING OUT OF SUBSCRIBER'S PURCHASE OR USE OF THE SERVICES, OR ANY CONDUCT OF OTTOMATIK’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO OR USE OF THE SERVICES.
Governing Law and Disputes
- The Agreement shall be governed by and construed in accordance with the substantive laws of Sweden, excluding its choice of law provisions.
- Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration. The number of arbitrators shall be one. The seat of arbitration shall be Stokholm, Sweden. The language of the arbitration shall be English.
- Notwithstanding anything set out in these Terms of Service, the Company shall have the right to claim unpaid Fees in a public court.
- The Company shall be free to use subcontractors in the performance of its obligations and exercise its rights under the Agreement. The Company shall be liable for the acts and omissions of its subcontractors under the Agreement as for its own.
- The Company shall have the right to use its relationship with the Customer in its marketing and sales promotion activities.
- Neither Party shall be entitled to assign nor transfer all or any of its rights, benefits and obligations under the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. The Company shall, however have the right to assign the Agreement in connection with a sale or transfer of its business or a relevant part thereof.
- The Company shall have the right to update the General Terms at its sole discretion. Should the Customer not accept the updated Terms of Service, the Customer shall have the right to terminate the Agreement.
- Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of the Agreement shall also be deemed to survive.