Terms & Conditions
Itsafer Continuity Services, S.L.U. (hereinafter “Itsafer®”), with address at C / Faraday nº 7 - 28049 - Madrid and with CIF B88104237 offers software as a service ("SaaS") that the Client can access through the AB Cloud Platform console (the platform").
Itsafer® currently offers SaaS Itsafer Data Assurance and Itsafer Disaster Recovery Silver solutions, through its Platform; and the Client may use the Platform to manage its use by the End Users who use one or more of said services for their intended purposes; and therefore, Itsafer® and the Client agree to the following:
1. Scope of services
1. Term. The "Term" of this Agreement begins on the Effective Date and lasts one (1) year. This Agreement will be renewed for additional periods of one (1) year unless either Party notifies the other Party in writing of the non-renewal at least ninety (90) calendar days prior to the expiration date of the Term in force in that moment.
2. Flow of Obligations. The Client acknowledges that, as a condition to use the Platform, he first accepts the terms and conditions of service provided by Itsafer, which may be updated, and can be found at https://www.itsafer.com/terminos -and-conditions-services-2020 /
3. License policy. Licenses granted under this Agreement are subject to the terms of Itsafer's Licensing Policy, which can be found in the Licensing Policy and may be subject to updating, except for the provisions of that policy regarding the maximum allocation.
2. Customer Service.
The Client will operate at his own cost and risk, and under his own name. The Client will not act or communicate in any way that he can make understand or imply that he has or may have the right to represent or act on behalf of Itsafer®, as an agent or in any other way. The Platform provides the Customer with the technical capacity to suspend the service and / or restrict access to the services of its end users. The use of this capacity by the Client is completely at your own risk. Itsafer® will not be liable in any way for any claim arising from the suspension or restriction of such access by the Client.
The Client is responsible for Level 1 support directly to its End Users. Additional support terms can be found in Annex II. https://www.itsafer.com/terminos-y-condiciones-soporte-2020/
Itsafer® will only support installations of Services that are not older than two (2) previous versions. The Client must update to the most up-to-date version of the Services within six (6) months of its publication. However, the Client must have installed the latest update before reaching technical support. Most of the problems reported in a product or service that have been previously reported may have been corrected in the most recent compilation. Initial versions are an exception.
4. Software delivery and payments
The execution of the Service Delivery Agreement will serve as the initial purchase order for the Services specified in the reference offer and according to Annex I.
1. Payments. Itsafer® will invoice the Client upon receipt of the Monthly Use Report described in Annex I. The Client shall pay all invoices for the Services provided under this Agreement within thirty (30) days of the date on the invoice. In its sole discretion, Itsafer® may evaluate a late payment interest charge against unpaid invoices at least (i) three percent (3%) per month, or (ii) the maximum rate allowed by applicable law. PAYMENTS ARE NON-REFUNDABLE AND PURCHASE ORDERS THAT ARE ISSUED TO ITSAFER, IF THERE ARE, ARE SIGNATURE OR NOT CANCELLABLE.
2. Payment methods. The Client will accept receipt domiciled by Itsafer® to the bank account designated by the Client in this document. Or by other means indicated in the Service Delivery Agreement.
3. Invoices. Itsafer® will calculate the monthly invoices based on the Monthly Report of the Platform that Annex I describe, in the Monthly Use Report, and as established in the Service Delivery Agreement. If there is a Minimum Monthly Commitment, if the actual use is less, the Client will be responsible for the Minimum Monthly Commitment. There is no extension of unused capacity in the following months. All invoices for the Services will be sent to the Customer's email address indicated in the Service Delivery Agreement. An invoice will be considered delivered on the date it is sent electronically to that email address unless Itsafer® receives a delivery error message.
4. Taxes. All amounts payable under this Agreement are prior to sales, value added and all other applicable taxes and duties. The Client is responsible for all applicable taxes and duties. Itsafer® will collect Customer sales taxes unless the Customer has provided a sales tax exemption or certificate. The Client will pay, indemnify and exempt Itsafer® from all taxes, fees, duties, other charges and any other related taxes, penalties and interest derived from inaccurate tax documentation provided by the Client to Itsafer® under the Agreement to which This document is subject.
Customer may only use the login credentials of the platform Itsafer® provides. The Platform will automatically generate reports on the use of the Services by the Client and send them to Itsafer® monthly (the "Monthly Platform Report") within five business days (5) from the end of each month, the Customer will provide Itsafer® with any other information that it may reasonably request from time to time in order to calculate the amounts that the Customer owes to Itsafer® under this Agreement.
1. Books and records.
The Client will keep the books and complete, accurate and current records related to the supply and distribution of the Services. During the term of this Agreement and for three (3) years thereafter, Itsafer® or its authorized representatives may audit the use of the Services by the Client to confirm compliance with the terms of this Agreement. This audit is subject to at least fourteen (14) calendar days in advance of written notification by Itsafer® and will not unreasonably interfere with the commercial activities of the Client. Itsafer® may not perform more than one (1) audit in any twelve (12) month period and only during normal business hours. The Client will reasonably cooperate with Itsafer® and any external auditor and, without prejudice to the other rights of Itsafer, will address any breach identified by the audit through the immediate charge of additional fees. The Client will immediately reimburse Itsafer for all reasonable costs of the audit if the audit reveals that there is a sub payment of more than five (5%) percent of the product and service fees due by the Client to Itsafer during the audited period , or that the Client has not been able to keep accurate records of his use of the Services.
6. Software Suspension
Itsafer may at any time suspend Customer's access to the Services, in whole or in part, for the following reasons:
• in order to comply with any contractual, legal and / or regulatory obligation, a request or order of the law enforcement, or a competent judicial, governmental, supervisory or regulatory body;
• if Itsafer® has reasonable grounds to suspect that the Client and / or its End Users have acted or will act fraudulently, illegally, criminally or in a manner that may harm Itsafer®, others and / or any End User;
• in the event that the Client, or its End Users violate any contractual, legal, regulatory, legal or administrative obligation;
• in the case of Force Majeure, as defined in section 13;
• at any time at the sole discretion of Itsafer®, if the Client has not paid any invoice or other amount due that is not the subject of a dispute in good faith;
• if Itsafer® is informed by the Client that the credentials of access to the product or services have been compromised;
• at the Customer's request for specific end users, to the extent technically possible;
• if Itsafer establishes or has a reasonable belief that (i) the Client, and / or any of its end users damages or jeopardizes the operational availability of any Service; (ii) such action is necessary to prevent or protect against fraud, tricks, manipulation, schemes, false or invalid numbers, false credit devices, electronic devices or any other means or fraudulent device; or (iii) its action is necessary to protect Itsafer®, its affiliates and their respective managers, directors, shareholders, employees and agents, and / or others against actual or potential adverse financial effects;
• if the Client fails or refuses to provide information, or provides false information, regarding the solvency of the Client, its past or current use of the Services, or features related to its planned use or use of the Services;
• when necessary for the maintenance of APIs, infrastructure or any of Itsafer® services;
• if the Customer continues to use any Service that is at the end of its useful life or after its useful life (that is, after Itsafer® stops providing support and / or security patches for that Service).
If the circumstances are reasonably feasible, Itsafer® will inform the Client in advance of the suspension, indicating the reason or reasons for the suspension. Itsafer® will send said notice to the Client by email to an address that the Client designates on the platform as an administrator account. Itsafer® will consider that it has delivered such notification on the date on which it is sent by email to the email address of the administrator account if Itsafer® does not subsequently receive a delivery error message regarding said email. Without prejudice to Itsafer®'s right to directly inform any End User (all of which Itsafer® expressly reserves), the Client is responsible for informing the affected End Users who use the Services through the Suspension Access Platform and liability derived from any breach or delay in the provision of such information.
2. Consequences of suspension.
Itsafer® will not be liable to the customer or third parties for any loss or damage arising from the suspension of access to the Services for any of the reasons mentioned in section 6. The suspension of access to the Services under this section does not exempts the Client from its obligation to pay Itsafer® for the Services before or after the suspension, or any amount owed under this Agreement.
1. User data.
2. Definition of Confidential Information.
"Confidential Information" means all that referred to User Data, Services, valuable, proprietary and confidential information regarding the business of a Party, including, without limitation, information that may be related to the Financial Information, condition or matters of the Party, financial projections, financial analysis, corporate organization documents, business plans, forecasts, products, whether in distribution or in development, secret trade, computer source code and object code, software and other product designs and specifications, methodologies, data, developments, ideas, product and marketing plans, lists of customers and suppliers, and other oral, visual or written lists with information that the Party designates as confidential or proprietary at the time of disclosure or that, in the circumstances surrounding the disclosure, or by the nature of the information, would reasonably be in provided by the other Party as being confidential or proprietary, including, among others, any of the foregoing that is Confidential Information of customers, suppliers, partners, licensors or third parties with respect to which that Party has an obligation of confidentiality. The Services contain Itsafer® trade secrets and are Confidential Information. Confidential Information will not include information from a party that is disclosed in a print or web publication available to the public, that is otherwise in the public domain at the time of disclosure, or becomes public, or that is known by act or unlawful omission by the other Party, or (b) is obtained by the other Party legally from a third party that is not under an obligation of secrecy to the first party and is not under any similar restriction as to use. If a Party is required to disclose any of the Confidential Information of the other Party by a court or government order, the Party will give the other Party reasonable notice in advance of the disclosure and the opportunity of another Party that challenges, to its own cost, the disclosure of Confidential Information, when such notification is not prohibited by law or government order.
3. Confidentiality obligations.
The Client will not disclose access to the Services or any part thereof for any purpose. Each Party agrees that it will keep the Confidential Information of others in confidence, prevent its disclosure and protect it from unauthorized use with at least the same degree of care it uses to protect its own most critical property. Each shall take all reasonable steps to protect the Confidential Information of the other Party from unauthorized access by any person for any purpose other than that of employees or other parties exercising the rights expressly granted under this Agreement. Each of them will prevent the copying or improper use by its employees and others, except for the purpose of exercising the rights expressly granted under this Agreement. Each of them will immediately notify the other Party if they are aware of such copy or unauthorized use. The Client will ensure that any person to whom he makes disclosures or provides access to the Services is bound by confidentiality obligations at least as protective of Itsafer® as in this Agreement.
Customer understands and acknowledges that Itsafer® may monitor the operation and use of the Services through reporting functions in the Services. The Client undertakes to facilitate such supervision by ensuring that all firewall ports necessary for such supervision are open and to notify Itsafer® if there is an operational problem that may prevent remote monitoring. Subject to this section Itsafer® will have the right to use each and every one of the data and information related to Clients, as well as the use of the Services for any legal purpose, including, without limitation, billing, statistical analysis, and research purposes.
Customer is welcome if you provide suggestions, ideas or other comments regarding Itsafer® services ("Comments"). To the extent that the Client provides Itsafer® with any “Comments”, Itsafer® will be free to use them in any way and for any reason (including incorporating the Comments in future versions of the products and services), without any obligation of confidentiality or Customer compensation and no restrictions of any kind.
6. Location of the data.
In accordance with Annex I and its Addenda, the Customer may designate the Itsafer® data center where he wants his User Data stored. Unless otherwise specified in this Agreement, with a thirty (30) day notice to the Customer, Itsafer® may choose to transfer the data to another data center within the same country, except in the case of centers of data from the European Union, which Itsafer® can transfer to another data center only within the European Union.
7. Data return.
At the Client's request, Itsafer® will return to the Client, free of charge through the network, or for a fee if special handling or means are requested, in accordance with the prices in force at that time of Itsafer®, all the data of user or said part of the user data requested by the Client; or and (b) delete all or part of the User Data, in each case to the extent so requested by the Client. Itsafer® will certify to the Client that all these copies have been deleted. However, Itsafer® may use any file repository that contains the User Data for backup purposes only and will keep such backup copies of the User Data as Confidential Customer Information.
8. Responsible for the treatment.
The Client accepts that, between Itsafer® and him, the Client is the data controller of the User Data and is solely responsible for compliance with all applicable laws, rules and regulations relating to the controller data.
8. Property rights
The Services are licensed and not sold under this Agreement, despite any reference herein to the "purchase", "sale" or "resale" of any Product or Service, or any similar import term. The Services are the sole and exclusive property of Itsafer® and its suppliers, regardless of whether the Services are combined with any other product owned by someone other than Itsafer®. Itsafer® rights under this section include but are not limited to: (i) all copies of the Products, in whole or in part; (ii) all intellectual property rights over the Products and Services; and (iii) all modifications and derivative works based on the Products. The Client will not eliminate or alter in any way the intellectual property rights notices of Itsafer® and its suppliers, if any, that appear on any Product. As a condition of the license rights granted to the Client in this Agreement, the Client shall reproduce, and display said notices on each copy of any Product that the Client may make under this Agreement.
2. Duties of the Client.
The Client will make every effort to protect the intellectual property rights of Itsafer® and will promptly inform you of any infringement of the rights known to the Client.
3. Third party infringement.
Itsafer® reserves the sole and exclusive right, at its discretion, to file claims against third parties for infringement or misappropriation or misuse of its intellectual property rights over the Services.
1. Power and authority.
Each Party declares and guarantees that it has sufficient right and authority to grant to the other Party all licenses and rights granted under this Agreement.
2. Disclaimer of other guarantees
Itsafer® does not offer any guarantee to the Client except the guarantee of the preceding section. All Services, accompanying documentation and all other materials that Itsafer® may provide to the Client under this Agreement are provided "as is" To the maximum extent permitted by applicable law, the guarantees in section 9.1 are the sole and exclusive guarantee of any type, express or implied, that is done by Itsafer® in relation to this Agreement. Without limiting the generality of the foregoing, Itsafer® does not specifically guarantee that the Services meet the requirements of the Client, or of any End User, or that the operation of the Services will be accurate, uninterrupted, reliable, without loss of data or free from mistakes. To the extent that Itsafer cannot waive any guarantee as a matter of applicable law, the scope and duration of such guarantee shall be the minimum allowed by said law.
10. Limitations of Liability
1. Exclusion of damages.
In no case will either Party be liable to the other Party for any damage: special, incidental, indirect or consequential (including for those caused by the loss of data), whether based on breach of contract, tort (including negligence) , product, responsibility, or other order, which derives or may derive from the service and even if said Party has been informed of the possibility of such damages.
2. Damage Limitation.
In addition and without exception except for Section 10.1 above, the total cumulative liability of Itsafer® under this Agreement to the Client, and any of its End Users, whether by contract, tort (including negligence or strict liability), or any other legal formula, will not exceed or in any case exceed the amounts for license fees that the Client has paid to Itsafer® in the period of twelve (12) months prior to the circumstances that gave rise to the first contested claim . The existence of several notifications will not increase or exceed this limit.
The limitations of Section 10.1 do not apply to breaches of Section 8 and / or any other misappropriation of the intellectual property of the other Party. The limitations of Section 10.2 do not apply to any misappropriation or misuse of the intellectual property of the other Party.
4. Breach of essential purpose.
The Parties recognize that the license fees reflect the risk allocation set forth in this Agreement and that Itsafer® would not enter into this Agreement without the limitations of its liability in this article in this Section 10. The Parties agree that the limitations specified in this Section 10 will remain in effect and will apply even if it is found that any limited resource specified in this Agreement has failed to fulfill its essential purpose.
11. Acceptable use and behavior
1. Legal use.
Customer will use the Services only in accordance with this Agreement and in accordance with all applicable laws.
Itsafer® cannot decrypt any files that Customers, or any of their end users have marked to encrypt. Encryption is the best way for the Client and end users to protect against data loss.
Either Party shall have the right to terminate this Agreement if the other Party breaches any material term or condition of this Agreement and does not remedy it within thirty (30) days after the written notification, ten (10) days in the case of default. All payment defaults constitute an essential condition of this agreement. Either Party may, at its option, and upon prior written notification to the other Party, terminate this Agreement or suspend its fulfillment (except those referring to payment obligations for services rendered) if a Party does not fulfill its obligations to the other Party.
Itsafer® may terminate this Agreement without cause and without incurring liability to the Client, or any end User, with written notice of sixty (60) days
2. Termination after change of customer control
Itsafer® may terminate this agreement with thirty (30) days written notice to the Client if it is subject to: (a) any consolidation or merger of the Client with or in any other entity, or similar transaction, provided that as a result of said operation, the holders of the outstanding shares of the Client, do not retain shares or titles that represent the majority of the voting power of the resulting entity; (b) the sale, transfer or transfer of capital of the Client that represents the majority of the voting power of said Party to an acquiring entity or group; or (c) the sale of all or substantially all of the Client's assets linked or referred to in this Agreement.
3. Termination after bankruptcy or insolvency.
This Agreement will terminate and be terminated, without the need for prior notice or additional action, in the event of initiating a procedure or request for insolvency, by the client or a third party against a Party, in any process of this nature regardless of its denomination, by bankruptcy, bankruptcy, insolvency, dissolution, liquidation, administration or similar, or seeking the appointment of a recipient, trustee, custodian, conservator, judicial administrator or similar officer for the Party or for a substantial part of its assets or assets, or If a Party makes an agreement, trust? or for the benefit of the creditors, or if a Party takes any measure in order to carry out any of the foregoing or any other procedure with a similar purpose.
4. Effect of termination.
Upon termination or expiration of this Agreement: (a) all licenses granted to the Client by this Agreement will terminate; (b) Customer will confirm to Itsafer® that all installed instances of the Products have been removed and uninstalled from all machines; (c) the Customer will return to Itsafer® any hardware owned by Itsafer® at the expense of the Customer and using shipping methods designated by Itsafer®; and (d) Customer will pay any amount due to Itsafer® under this Agreement.
5. Damage due to termination.
Neither Party shall be liable to the other for damages of any kind, including incidental, indirect or consequential damages due to, arising from the termination or expiration of this Agreement, in accordance with its terms, including in said exemption, among others, profit loss, reimbursement or damages for the loss of funds of potential benefits or anticipated income, or because of any expense or other reason. The Client waives any right he may have to receive any compensation or repair at the end or expiration of this Agreement under the law of any country providing the service or otherwise, except as expressly provided in this Agreement.
13. General provisions
1. Professional services.
If the Client opts for Itsafer® to provide professional services to the Client in relation to the Services, Itsafer® will provide such professional services under a separate agreement to this Agreement or under an independent contract, and the parties will not be subject to the terms of this Agreement, but to the extent that it can agree on that agreement.
2. Non-exclusive remedy.
The exercise by any Party of any remedy under this Agreement shall be without prejudice to its other resources under this Agreement.
The rights and obligations of the Parties contained in this document will survive the termination or expiration of this Agreement in those cases where it is provided for in the text thereof.
This Agreement will be binding and will benefit each Party and the successors and assigns allowed by the Parties, in accordance with its provisions. Customer may not assign this Agreement, in whole or in part, without the written consent of Itsafer®. Any commitment on the part of the Client of any right under this Agreement without the express written consent of Itsafer® will be null and void and in no case will it be enforceable against Itsafer®. The assignment of this Agreement by the Client with the consent of Itsafer® will not exempt the Client from the responsibility as principal debtor for the amounts whose payment is pending applicable law.
This Agreement shall be governed by and construed in accordance with the laws of Spain, without any legal principles or requirements that require the laws of a different country or State. The Parties expressly include the application of the United Nations Convention on Contracts for the International Sale of Goods, in all matters not provided for in this Agreement.
5. Severability or Severability. Maximum validity
If a court of justice maintains that any provision of this Agreement is invalid or unenforceable, that provision shall apply to the maximum extent permitted, and the other provisions of this Agreement shall remain in full force and effect.
6. Force Majeure
Except for payments due under this Agreement, neither Party shall be liable for any breach due to causes beyond its reasonable control (each of them "Force Majeure" cases) including, but not limited to natural disasters or circumstances. social or legal that are over your control, war, riots, civil or military authorities, fires, floods, earthquakes, accidents, strikes or fuel crises. The time will be extended for a period equal to the duration of the Force Majeure, but during that time, the Client will be responsible only for the actual use in accordance with Annex I.
Unless otherwise specified in this Agreement, all notices, requests and other communications under this Agreement must be in writing and must be delivered personally or sent by certified or registered email or postal or express courier recognized at the level National, return receipt requested. The notification delivered personally will be considered given on the delivery date. The notification by email, postal or courier will be considered given on the date of receipt or five (5) days after the deposit with the mail or courier
Si a Itsafer®
Yes to the Client
Itsafer® Continuity Services S.L.U
C/ Faraday nº 7
Address indicated in the Service Delivery Agreement.
8. Dispute resolution.
All disputes arising under this document, which cannot be resolved amicably by the Parties, will be subject to the exclusive jurisdiction of the courts of Spain.
9. Relationship between the Parties.
The Parties are entering into this agreement as independent contractors. Nothing in this Agreement shall be deemed to create an employer / employee, principal / agent or joint venture relationship. Neither Party shall have the authority to enter into any contract in the name or on behalf of the other Party or otherwise link to said other Party.
10. Entire agreement.
This Agreement and its appendices are the complete agreement between the Parties regarding the service to be provided, replacing each and every one of the previous agreements, communications and understandings (both written and oral) with respect to said subject. There are no implied exemptions.
The waiver by any of the parties to any provision of this Agreement shall not in itself imply a waiver of the provision itself or any claim for breach thereafter and shall not imply waiver of any other provision of this Agreement.
This Agreement may be executed in counterparts, each of which will be considered original, but all of which together will constitute the same instrument