Subscription Services Agreement

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THESE SERVICES.
 
  • By using the Services, clicking Agree, or electronically or manually signing a Services Order Form, you agree to be bound by this Subscription Services Agreement (“Agreement”).
  • If you are agreeing to this Agreement on behalf of or for the benefit a company, organization, or other entity, or another individual, then you represent and warrant that you have the necessary authority to agree to this Agreement on behalf of that company, organization, other entity or individual.
  • If you do not have that authority, or if you do not agree to the terms of this Agreement, you must not accept this Agreement and may not use OwnBackup products or services.
  • If Customer (defined below) has a written agreement with OwnBackup covering the Purpose below, then that agreement applies instead of this Agreement.
  • You may not access OwnBackup products or services if you are OwnBackup's direct competitor, or to monitor the availability, performance or functionality of OwnBackup products or services, or for any benchmarking or competitive purpose, except with OwnBackup's prior written consent. These restrictions apply to everyone in your company or organization.

This Agreement was last updated on July 20, 2021. It is effective as of the date Customer first accepts it between Customer and the OwnBackup entity named in Section 11.1 (General) below.

 

1. PURPOSE

This Agreement governs Customer’s acquisition and use, and OwnBackup’s provision, of Services and Support.

 

2. DEFINITIONS

"Affiliate" means any company controlling, controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.

"Customer" means the company, organization, other entity, or individual on behalf of which this Agreement is accepted, as described above. If Customer is a company, organization or other entity, then “Customer” also includes such entity’s Affiliates.

"Customer Data" means data uploaded or submitted to the Services by or for Customer.

"Documentation" means, for Services, the technical documentation including administrator and user guides, and for Support, the customer support policy, in each case available in the Support section of www.ownbackup.com or other web pages designated by OwnBackup.

"Order Form" means an ordering document for Services and/or Support entered into between Customer and OwnBackup or its Affiliate under this Agreement, including any addenda and supplements thereto.

"Security Measures" means the security measures described in Section 6.4 (Data Security) below.

"Services" means the OwnBackup web-based application services specified in an Order Form hereunder, as described in the Documentation.

"Support" means customer support for the Services, as described in the Documentation.

"Third-Party Services" means third-party services with which Services interoperate (for example, from which the Services back up data).

 

3. SERVICES

3.1. Provision of Services and Support. OwnBackup will (a) provide the Services to Customer pursuant to this Agreement, Order Forms, the Service Level Addendum at https://www.ownbackup.com/SLA, and the Documentation, and (b) provide standard Support for the Services to Customer at no additional charge, and/or upgraded Support if purchased.

3.2. Affiliates and Contractors. Customer, including its Affiliates, may enter into Order Forms with OwnBackup and its Affiliates. An Affiliate entering into an Order Form adopts and agrees to be bound by this Agreement as if it were an original party hereto. Customer may allow its Affiliates and contractors to use the Services, provided Customer is responsible for their compliance with the terms of this Agreement, and use by such contractors is solely for Customer’s benefit.

3.3. Customer Responsibilities. Customer (a) will keep its Services passwords secure and confidential; (b) is primarily responsible for Customer Data, as uploaded or submitted to the Services, and for activity in its Services accounts when accessed using Customer’s login credentials; (c) will notify OwnBackup promptly of any unauthorized access to its Service account of which Customer becomes aware; and (d) will use the Services only in accordance with the Documentation and applicable law.

 

4. WARRANTIES AND EXCLUSIVE REMEDY

4.1. Warranties. OwnBackup warrants to Customer that: (a) the Services and Support will materially perform the functions described in the Documentation, and (b) neither the Services, Support nor Security Measures will materially decrease during any order term.

4.2. Exclusive Remedy. For any warranty breach, Customer’s exclusive remedy and OwnBackup’s sole obligation shall be: (a) OwnBackup’s cure of the breach within a reasonable period after Customer’s notice to OwnBackup specifying the breach, or (b) if OwnBackup does not cure the breach within such period, termination of this Agreement with immediate effect upon notice to OwnBackup, along with the remedies for termination for breach described in Section 8.5 (Effect of Termination) below.

4.3. Disclaimer. OwnBackup disclaims all implied warranties, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, and satisfactory quality. OwnBackup does not guarantee that Services will be uninterrupted, error-free or invulnerable. OwnBackup is not responsible for the effectiveness of encryption keys generated by Customer without using an OwnBackup sample script, or generated, stored or transmitted by Customer using a compromised system or network not managed by OwnBackup.

 

5. PAYMENT

5.1 Fees and Payment Fees are due and payable net 30 days from the invoice date. Except as provided herein or in an Order Form, payment obligations are noncancelable, fees paid are nonrefundable, and quantities cannot be decreased during a paid term. Customer is responsible for payment of all sales, use, VAT, withholding (without reducing the amounts payable to OwnBackup under invoices) and similar taxes.

5.2 Nonpayment Invoiced amounts not received by OwnBackup by the due date may accrue interest at the lower of 1.5% per month or the maximum rate allowed by law. If an invoiced amount is 30 days or more past due, OwnBackup may suspend Services and Support until the amount is paid in full, provided OwnBackup has given Customer at least 30 days’ prior written notice that its account is past due. OwnBackup will not exercise its rights under this paragraph to the extent Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

 

6. CONFIDENTIALITY AND DATA PROTECTION

6.1. Confidential Information Definition. "Confidential Information" means non-public information disclosed orally or in writing by a party (Discloser) to the other party (Recipient), including but not limited to information about its business, finances, customers, operations, products, technology or plans, that is designated as confidential or reasonably should be considered confidential given the nature of the information and the circumstances of its disclosure. Customer’s Confidential Information includes, without limitation, the Customer Data. OwnBackup’s Confidential Information includes, without limitation, the Services and their pricing.

6.2. Protection of Confidential Information. Recipient will use the same degree of care that it uses to protect the confidentiality of its own information of a like nature, but in no event less than reasonable care, (a) not to use Discloser’s Confidential Information for a purpose inconsistent with the activities contemplated under this Agreement, and (b) to limit access to Discloser’s Confidential Information to those of Recipient’s and its Affiliates’ employees, directors, contractors, advisors and auditors who need such access for activities contemplated under this Agreement and who are legally or contractually bound to protect the Confidential Information as provided in this section. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of a duty owed to Discloser, (ii) was known to Recipient before its disclosure hereunder without breach of a duty owed to Discloser, (iii) is received from a third party without breach of a duty owed to Discloser, or (iv) is independently developed by Recipient without use of Discloser’s Confidential Information.

6.3. Requests for Confidential Information. If Recipient receives a government or other third-party request for Discloser’s Confidential Information (including but not limited to Customer Data), Recipient will direct the requestor to, and promptly so notify, Discloser if legally permitted to do so. Recipient will comply with such a third-party request only if so required by law; in such event, Recipient will seek to limit the disclosure to that Confidential Information which it is required by law to disclose.

6.4 Data Security. OwnBackup will maintain the following minimum Security Measures, as further detailed at https://www.ownbackup.com/company/security-controls: (a) appropriate technical, physical, administrative and organizational controls designed to maintain the confidentiality, security and integrity of Customer’s Confidential Information, including Customer Data, (b) systems and procedures for detecting, preventing and responding to attacks, intrusions, and system failures, and regular testing and monitoring of the effectiveness of such systems and procedures, including, without limitation, through vulnerability scans and penetration testing, (c) a team of employees dedicated to implementation and maintenance of security controls, and (d) annual assessment of risks that could result in unauthorized disclosure, misuse, alteration, destruction or other compromise of Customer’s Confidential Information, including Customer Data, and of the sufficiency of systems and procedures in place to mitigate those risks. On request, OwnBackup will provide to Customer its SOC 2 type 2 independent audit report, ISO 27001 and 27701 certifications, Standardized Information Gathering (SIG) and Cloud Security Alliance Consensus Assessment Initiative (CSA CAIQ) questionnaires, and summary penetration test reports, which shall be considered responsive to Customer requests for OwnBackup security information.

6.5. Data Privacy. OwnBackup shall protect the privacy of Customer Data in accordance with the Data Processing Addendum at https://www.ownbackup.com/company/dpa, which is hereby incorporated into this Agreement by reference, except as otherwise agreed by the parties in writing.

6.6. Data Breach. If OwnBackup becomes aware of an unauthorized access to or disclosure, loss or alteration of Customer Data, OwnBackup will promptly notify Customer, seek to mitigate the breach and preserve forensic evidence, and provide information to Customer about the nature and scope of the breach.

 

7. PROPRIETARY RIGHTS

7.1. Ownership and Use Rights. As between the parties, Customer solely owns the Customer Data, including all intellectual property rights therein, and OwnBackup and its licensors solely own the Services, including their underlying software, interfaces and architecture, and all intellectual property rights therein. Customer grants OwnBackup the right to use the Customer Data solely to perform its obligations under this Agreement and reserves all rights in the Customer Data not expressly granted to OwnBackup. OwnBackup grants Customer the right to use the Services solely as described in this Agreement, Order Forms and the Documentation, and reserves all rights not expressly granted to Customer.

7.2. Restrictions. Customer may not (a) make a Service available to, or use a Service for the benefit of, anyone other than Customer, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit material in violation of privacy rights, intellectual property rights or applicable law, (d) use a Service to store or transmit malware, (e) interfere with or disrupt the integrity or performance of any Service, (f) attempt to gain unauthorized access to a Service, its related systems or networks, or third-party data contained therein, (g) reverse engineer or decompile a Service (to the extent such restriction is permitted by law), or (h) access a Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes. OwnBackup may suspend Services to Customer if OwnBackup believes in good faith that Customer’s use of a Service poses an imminent threat to the security, availability or legality of the Services. OwnBackup will work with Customer beforehand to avoid such suspension to the extent practicable, and in the event of such suspension will work with Customer to address the issue and restore Services as quickly as possible.

7.3. Third-Party Services. OwnBackup’s Services depend on the continuing availability of, and access to, the Third-Party Services, including application programming interfaces. If a Third-Party Service for which Customer has purchased OwnBackup’s Services ceases to be available on reasonable terms for interoperation with OwnBackup’s Services (other than due to a temporary issue or Customer’s act or omission), then Customer may terminate the affected Order Forms and OwnBackup will refund to Customer any prepaid and unused fees on a pro rata basis. Customer must purchase Third-Party Services separately. Customer acknowledges that Customer Data will be copied from the Third-Party Services to OwnBackup’s Services, that Third-Party Service providers are not responsible for the privacy, security or integrity of such copies of Customer Data in OwnBackup’s Services, and that those copies of Customer Data are instead covered by the protections in this Agreement. OwnBackup’s Services may automatically query Customer’s Third-Party Service accounts for the sole purpose of validating the purchased quantity of OwnBackup’s Services.

 

8. TERM AND TERMINATION

8.1. Term of this Agreement. This Agreement continues until the 30th day after all Order Forms have expired, unless earlier terminated as provided below.

8.2. Term of Order Forms. Each Order Form shall specify an order term. Except as provided in an Order Form, (a) a party may cancel the Order Form at the end of the order term (the “Renewal Date”) by so notifying the other party 30 or more days before the Renewal Date, (b) if no such notice is given, then on the Renewal Date the Order Form and all subscriptions under it will renew for an additional year, (c) in any such renewal, the Order Form terms will remain unchanged from the prior term except for any pricing increase of which OwnBackup has notified Customer 60 or more days before the Renewal Date, which increase will not exceed 7% over the per-unit pricing in the prior term unless the prior pricing was clearly designated in the Order Form as promotional or one-time, and (d) the Order Form will continue to renew until canceled in accordance with this section.

8.3. Termination for Material Breach. If either party is in material breach of this Agreement, the other party may terminate this Agreement, together with all Order Forms, at the end of a written 30-day notice and cure period, if the breach has not been cured.

8.4. Return of Customer Data. Within 15 days after termination, upon written request OwnBackup will make the Services available for Customer to export Customer Data at no additional charge. After such 15-day period, OwnBackup will have no obligation to maintain the Customer Data and will destroy the Customer Data unless otherwise required by law.

8.5. Effect of Termination. If this Agreement is terminated for OwnBackup’s breach, OwnBackup will refund fees prepaid by Customer, prorated for the remaining term of outstanding Order Forms after the termination date. If this Agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all Order Forms. Upon request following any termination of this Agreement, each party will destroy or return all copies of the other party’s Confidential Information that it holds, subject to its regular backup retention processes and Section 8.4 (Return of Customer Data) above.

8.6. Survival of Terms. Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement, will survive (including, without limitation, the confidentiality and ownership terms in this Agreement).

 

9. LIABILITY LIMIT

9.1. Exclusion of Indirect Damages. To the maximum extent allowed by law, neither party will be liable for any indirect, special, incidental or consequential damages or losses arising out of or related to this Agreement (including, without limitation, lost profits, lost revenue, lost savings, or costs of delay).

9.2. Total Liability Limit. To the maximum extent allowed by law, neither party’s total, aggregate liability arising out of or related to this Agreement will exceed the amount paid by Customer within the 12 months before the first incident out of which the liability arose.

9.3. Increased Liability Limit if Advanced Security Features are Used. Notwithstanding the above, Section 9.2 (Total Liability Limit) will not apply to any breach by OwnBackup of its security, confidentiality or privacy obligations regarding Customer Data while the Advanced Security Features are enabled and in use in Customer’s applicable Service instance(s), provided in no event will OwnBackup's total, aggregate liability for such breaches exceed two times the amount paid by Customer within the 12 months before the breach. "Advanced Security Features" means Advanced Key Management, IP range restrictions, and either multi-factor authentication or single sign-on, in each case to the extent available from OwnBackup for the applicable Services.

9.4. Conditions. The above exclusions and liability limits reflect the parties’ allocation of risk and apply under any legal theory (including, without limitation, contract or tort), even where a party was aware of the possibility of such damages, the damages were foreseeable, and/or any remedies hereunder fail of their essential purpose. The above exclusions and limits do not limit Customer’s payment obligations under Order Forms.

 

10. INDEMNIFICATION

OwnBackup will defend Customer against any claim, demand, suit or proceeding against Customer alleging that use of the Services in accordance with this Agreement infringes or misappropriates a third party’s intellectual property rights (a "Claim"), and will indemnify and hold harmless Customer from and against any damages, attorney fees and costs awarded against Customer as a result of, or for amounts paid by Customer in settlement of, a Claim, provided Customer (a) promptly notifies OwnBackup of the Claim, (b) gives OwnBackup sole control of the defense and settlement of the Claim (except OwnBackup may not settle a Claim unless Customer is unconditionally released of all liability), and (c) gives OwnBackup all reasonable assistance at OwnBackup’s expense. If Customer’s use of the Service is enjoined, OwnBackup shall (or if OwnBackup receives information about a potential or actual Claim, OwnBackup may), at no cost to Customer (i) modify the Service without breaching OwnBackup’s warranties above, (ii) obtain a license for Customer’s continued use of the Service in accordance with this Agreement, or if options (i) and (ii) are not reasonably available to OwnBackup, (iii) terminate the applicable Order Forms and refund Customer all fees prepaid for the remainder of the term of such Order Forms after the termination date. OwnBackup’s obligations in this section do not apply if (1) the allegation does not specify that the Services are the basis of the Claim, or (2) a Claim arises from the use or combination of Services or any part thereof with software, hardware, data, or processes not provided by OwnBackup, if the Services or use thereof would not infringe without such combination. This section states OwnBackup’s sole liability and Customer’s exclusive remedy for infringement.

 

11. WHO CUSTOMER IS CONTRACTING WITH, GOVERNING LAW, JURISDICTION AND ARBITRATION

11.1. General. Who Customer is contracting with under this Agreement, what law will apply in disputes arising in connection with this Agreement, and where and such disputes will be resolved, depend on where Customer is domiciled.

 

If Customer is domiciled in:Customer is contracting with:The governing law is:The exclusive forum for resolving disputes is:
United StatesOwnBackup Inc.New Jersey and controlling United States federal lawBinding arbitration in Newark, New Jersey, under JAMS Comprehensive Arbitration Rules and Expedited Procedures, as set forth in Section 11.2 below
IsraelOwnBackup Ltd.IsraelCourts in Israel
Any country other than United States or IsraelOwnBackup Inc.New Jersey and controlling United States federal lawBinding arbitration in Newark, New Jersey, U.S.A. under JAMS International Arbitration Rules and Expedited Procedures, as set forth in Section 11.2 below

 

11.2. Arbitration for Customers Domiciled in Countries Other Than Israel. If Customer is domiciled in a country for which arbitration is designated in Section 11.1 (General) above as the exclusive forum for dispute resolution, then any dispute or claim arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the scope or applicability of this arbitration clause, will be determined by confidential and binding arbitration in Newark, New Jersey, United States, before a single arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or its International Rules and Procedures, as provided in Section 11.1 above, in either case in accordance with the Expedited Procedures in those Rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. The parties will treat all disputes arising under this Agreement, including arbitration proceedings and awards, as Confidential Information of both parties, except as necessary in connection with a judicial challenge to or enforcement of an award or otherwise required by law or judicial decision. Notwithstanding the above, either party may seek injunctive relief in a court of competent jurisdiction, and issues of patent or copyright ownership or infringement may be decided only by a federal court in Newark, New Jersey and not by arbitration. The prevailing party in any action arising from or relating to this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs including, without limitation, arbitration and expert fees.

11.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to mandatory, binding arbitration and/or the exclusive jurisdiction of the courts above, as applicable.

 

12. TERMS FOR AUSTRALIAN CUSTOMERS

12.1. Terms Applicable to all Australian Customers. OwnBackup will protect Customer Data in accordance with the Privacy Act 1988 (Cth)).

12.2. Terms Applicable to Australian Customers with Contracted Fees of AUD 40,000 or Less. If Customer is domiciled in Australia and the total fees payable by Customer to OwnBackup are AUD 40,000 or less, then OwnBackup products and services come with guarantees that cannot be excluded under the Australian Consumer Law, and the following terms apply:

a. To the extent OwnBackup is liable under a statutory guarantee that cannot be excluded under the Australian Consumer Law with respect to OwnBackup products and services, OwnBackup’s liability is limited to, at OwnBackup’s election, any one or more of the following:

i. in the case of OwnBackup products, (A) replacement of the goods or the supply of equivalent goods, (B) repair of the goods; (C) payment of the cost of replacing the goods or of acquiring equivalent goods; or (D) payment of the cost of having the goods repaired; and

ii. in the case of OwnBackup services, (A) supplying of the services again; or (B) payment of the cost of having the services supplied again.

b. The following provisions apply only to the extent permitted by applicable law, and are subject to Customer’s rights under applicable guarantees that cannot be excluded under the Australian Consumer Law: Section 4.2 (Exclusive Remedies), Section 4.3 (Disclaimer), the second sentence of Section 5.1 (Fees and Payment), the second sentence of Section 8.2 (Term of Order Forms), the second sentence of Section 8.5 (Effect of Termination), and Article 11 (Who Customer is Contracting With, Governing Law, Jurisdiction and Arbitration).

 

13. OTHER TERMS

13.1. Entire Agreement, Amendment and Order of Precedence. This Agreement and the Order Forms constitute the entire agreement of the parties and supersede all prior and contemporaneous discussions and agreements, oral and written, related to this Agreement’s subject matter. Neither party is relying on any representation not expressly included in this Agreement concerning the subject matter hereof. No representation, promise or inducement not included in this Agreement is binding. Any amendment or modification of this Agreement requires both parties’ signatures. In the event of any inconsistency among the following documents, the order of precedence shall be: (1) Order Forms, (2) this Agreement and (3) the Documentation. OwnBackup rejects any term or condition in any Customer-form purchasing document (excluding Order Forms).

13.2. No Assignment. Neither party may assign or transfer this Agreement or an Order Form to a third party, except that this Agreement with all Order Forms may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all a party’s assets, business, or stock not involving a competitor of the other party, or at any time to an Affiliate.

13.3. Export Compliance. The Services and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.

13.4. Anti-Corruption. The parties shall comply with all applicable laws relating to anti-bribery and anti-corruption. Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement.

13.5. Corporate Responsibility. OwnBackup is committed to ethical and responsible business practices. For more information please see OwnBackup’s Business Conduct Principles at https://www.ownbackup.com/legal/.

13.6. Notices. Notices under this Agreement will be written and be effective on (i) the second business day after mailing, (ii) confirmed delivery by courier service, or (iii), except for notices of breach or an indemnifiable claim (Legal Notices), the day sent by email. Notices to OwnBackup will be addressed to its VP Customer Success, with a copy to its General Counsel, at the address first listed above, and to success@ownbackup.com with a copy to legal@ownbackup.com. Billing notices to Customer will be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer will be addressed to Customer and be clearly marked as Legal Notices. Other notices to Customer will be addressed to the account contact designated by Customer.

13.7. Independent Contractors. The parties are independent contractors with respect to each other.

13.8. Waiver and Enforceability. Any waiver of a right under this Agreement requires the waiving party’s signature. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect.

13.9. Money Damages Insufficient. A party’s breach of its confidentiality obligations under this Agreement or violation of the other party’s intellectual property rights could cause the other party irreparable harm. The other party may seek a court order to stop or prevent any such breach or violation.

13.10. Feedback. If Customer provides feedback or suggestions about the Services, then OwnBackup (and those it allows to use its technology) may use such information without obligation to Customer.

13.11. Reference. OwnBackup may include Customer’s name and logo in sales and marketing materials, in accordance with any branding guidelines provided by Customer.

13.12. No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

13.13. Purchases Through Resellers. To the extent this Agreement governs Customer’s use of Services purchased through an OwnBackup authorized reseller, terms agreed between Customer and the reseller concerning fees, payment, support and renewal will take precedence over those in Sections 3.1 (Provision of Services and Support) and 8.2 (Term of Order Forms) and Article 5 (Payment) above.

Subscription Services Agreements - Effective prior to July 20, 2021

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