Scope
1.1 These OpticalBackup Terms of Service (together, the “Agreement”) are entered into by Spinlegacy Unip Lda (hereinafter referred to as “Company“) and the entity or person agreeing to these terms (“Customer”) and govern Customer’s access to and use of the OpticalBackup Services.

1.2 The Customer will be bound by these Terms of Service immediately upon its subscription to any Service (whether through purchase of a subscription or on a trial basis), and, will remain in full force and effect until the expiration of the term of all subscriptions to Services held by the Customer, regardless of the sales channel through which the Customer procured such Service.

Definitions
2.1 “Passwords” shall mean the Customer established passwords, temporary passwords provided by Company, security credentials, or authentication keys provided or used in relation to the service.

2.2 “Confidential Information”: Confidential Information of Company includes the know-how, inventions (whether or not patentable), techniques or ideas,related to the service; the design and architecture of the service; the computer code, internal documentation, and design and functional specifications of the service; the pricing of the service is provided directly from Company; the terms of this Agreement; and any problem reports, analysis and performance information related to the service.

2.3 “Authorized Distributor or Reseller”: Any person or organization authorized by the Company to engage in transactions with the Customer on behalf of the Company.

2.4 “Customer Users”: Any person or organization who uses the Customer’s product/services.

2.5 “Applicable Data Protection Laws”: shall mean, as applicable the EU Data Protection Directive (Directive 95/46/EC) (prior to May 25, 2018); and the EU General Data Protection Regulation (Regulation 2016/679) (on and after May 25, 2018) (the “EEA Data Protection Laws”

2.5 “Controller”, “Processor”, “Sub-Processors”, “Data Subject”, “Personal Data”, “Processing” (and “Process”) and “Special Categories of Personal Data” shall have the meanings given in the EEA Data Protection Laws;

2.6 “Submitted Data” means any and all Personal Data that the Subscriber submits, uploads or otherwise stores on or through the Cloud Services, directly or indirectly by its users.

Relationship of the parties
3.1 The parties hereby acknowledge and agree that as part of the Customer access and use of Company Services, the Customer will act as the Controller with respect to any Submitted Data submitted directly or on behalf of its users (acting as Controllers). The Customer appoints the Company as a Processor to Process the Submitted Data on the Customer’s behalf for the purposes and within the scope described in the Terms of Services. Each party shall comply with the obligations that apply to it under Applicable Data Protection Laws

Service
4.1 All available online data optical backup services provided by the Company accessible by the URL opticalbackup.com and it’s subdomains under this Agreement are collectively defined as the “Service” or “Services”. The Company shall provide the Service subscribed by the Customer in accordance with this Agreement.

Subscription models
5.1 The Customer may procure a Service by purchasing a subscription through an authorized sales channel. Subscription to Service may require a minimum subscription commitment period. Where applicable, this requirement will be shared with you at the time of your subscription. Certain sales channels may have additional terms and conditions applicable to the purchase of our Service, which will apply in addition to, and not in replacement of, these Terms of Service. You are responsible for ensuring that you understand such additional terms and conditions before subscribing to any Service. In instances where the Company acts as the sales channel for your procurement of a Service, the current Terms of Service will apply.

5.2 We may, from time to time, offer trial subscriptions to some of our Services. Please note that certain features may be limited or not be available as part of trial subscriptions. The duration of such trial may vary from one online Service to another. If the Customer subscribes for a trial, we will make available the relevant Service to the Customer on a trial basis, free of charge, unless otherwise agreed to in writing between us. The trial subscription will end upon the expiration of the trial period, and all uploaded Data erased, unless the Customer will have purchased a paid subscription to such Service before then. The trial subscription may terminate sooner, in accordance with these Terms of Service. Additional terms and conditions may apply with respect to specific Services. If applicable, these additional terms will be disclosed to the Customer prior to the trial subscription, and will apply in addition to, and not in replacement of, these Terms of Service. Unless the Customer purchases a paid subscription, any and all Customer Data collected and stored as part of the trial will be deleted following the expiration of the trial period.

5.3 Customers may purchase a subscription to a Service by executing a subscription order in the form provided by the Company and submitting it electronically through the dedicated subscription portal, by email or other supported means as defined by the Company from time to time (an “Order”). The Order will, amongst other things, identify the Service requested by Customer together with: (i) the Service pertaining to the subscription; (ii) the subscription plan, tier or option selected by you (the “Plan”); (ii) the amounts payable to the Company for the subscription to such Plan (the “Fees”); (iii) the subscription period; (iv) the applicable taxes, if any; and (v) such other details as may be relevant for the Order or the provision of the relevant Service. Unless stated otherwise in the Order, all Fees are quoted and invoiced in Euros (EUR). An Order will become binding when it is received and accepted by the Company either in writing or through other supported manual or automated mechanisms (such as, for example, a Service dashboard portal)

5.4 The Services subscription Fees are subject to change at any time. We will give you a notice to that regard, either by email, through Service subscription portal, by publishing such changes on our website or through other means available to us. However, such changes will not impact any then-current subscription that the Customer may have until the later of (i) the expiration of your then-current subscription Plan term; or (ii) sixty (60) days following the date of such change. This means that, unless you change your Plan during your subscription term, the Fees payable for your then-current subscription will not change during the Initial Term or the then-current Renewal Term applicable to your Plan. Subject to the above, renewals will be charged at the rates in force at the time of renewal.

5.5 The Company may make available for purchase, in relation to a given Plan, certain additional capabilities, enhancements or other optional features that are not included by default in that Plan (each an “Optional Feature”). If the Customer wishes to procure any Optional Feature in relation to its Plan during its term, the Fees pertaining to each such Optional Feature will be charged at the prices in effect at the time the subscription to the Optional Feature is purchased by the Customer, but prorated to the remainder of the then-current subscription term left in the Plan. Purchased Optional Features will be linked to the specific Service Plan subscribed to by the Customer and will, therefore, be automatically renewed or terminated at the same time as the main Plan.

5.6 Unless the Order defines the start date of your subscription to a Service Plan, your subscription to such Service Plan will begin on the later of (i) the date of the Company acceptance of the relevant Order, (ii) the date on which the Company grants you access to the Service covered in such Order (the “Start Date”). The original term of your subscription to the Plan will expire at the end of the subscription period defined in the Order or such other period covered by the Plan following the Start Date (the “Initial Term”). Unless expressly stated otherwise on the Order, upon the expiration of the Initial Term, your subscription to the Plan (and to related Optional Features, if any) will automatically renew for additional successive periods of the same duration as the Initial Term (each a “Renewal Term”; and all Renewal Terms together with the Initial Term are referred to as the “Subscription Term”), unless you provide us with a notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or then-current Renewal Term (as applicable). Such non-renewal notices shall be given to us through automated means made available as part of the Service, a dedicated subscription portal made available by the Company in relation to certain Services, or by contacting us in writing. Unless expressly agreed to otherwise between you and us, your subscription will renew for each Renewal Term at the then-current Company subscription rate applicable to your Plan and the related Optional Features, as applicable.

5.7 If you choose to upgrade your Service Plan during its Initial Term or a Renewal Term to another Service Plan , then we will apply, as a credit towards your payment of the subscription Fees for the new Plan, the prorated Fees until the end of such Initial Term or Renewal Term (as applicable) under the old Plan. As such, you will be required to only pay the outstanding balance of Fees payable to the Company for the new Plan until the expiration of such Initial Term or Renewal Term (as applicable). For clarity, no refund will be issued for any prepaid Fees in case of Plan downgrades. Certain Optional Features may not be available in relation to the new Plan. If the Optional Feature is not compatible with the new Plan, the Optional Feature will be terminated and not renewed. You may contact the Company to confirm the availability of a given Optional Feature in relation to the new Plan before you request a Plan change. In any case, it is your responsibility to ensure that the Optional Feature is available in relation to the new Plan before you request a Plan change.

5.8 Our subscription Services impose monthly data uploading limits that are described upon Service subscription and described in your order. This monthly upload limit can be upgraded or downgraded at any time by subscribing another Service. Unused upload limit in one month does not transit to the next month.

5.9 Data is archived in our optical discs for a maximum of 5 years with an active Service subscription plan unless we receive instructions from Customer to delete the data. After this limit, data stored needs to be re-archived. The Company will notify the Customer of this operation with sixty (60) days in advance. The re-archived data volume will be charged on the upload limit Subscription plan active on the re-archiving date. The Customer must anticipate if the current Subscription plan can hold the re-archived data volume. If the current Subscription is unable to hold the re-archived data volume, this data will be deleted.

Customer account
6.1 To use our Services, the Customer has to create an account for the Customer and/or its Users (the “Customer Account”). The Customer must protect the Customer Account with a complex, secure password, and keep its login information confidential. The Customer is fully responsible for its and its Users’ access and use of the Customer Account, and any Customer Data accessible through it. The Customer may create shared Customer Accounts so that multiple Users or other individuals of your organization would have access to one single Customer Account.

Access and License
7.1 The Customer may only access and use each Service (including any software provided as part of it) for its internal purposes, and not for distribution or resale. The Customer may not access or use the Cloud Service to create products that could be considered competitive with the Company Services. The Customer may not (and shall not encourage, assist or permit any other person to) modify, decompile, reverse engineer or otherwise tamper with any Service, in whole or in part (including without limitation any software provided as part of it, as well as any underlying technologies, systems, networks and services provided in relation to our Services), or create any derivative works therefrom or thereof. Except as expressly allowed herein, the Customer may not copy, sell, distribute, license or sub-license any Service in whole or in part (including without limitation any software provided in association therewith). For avoidance of doubt, the foregoing does not restrict the Customer to designate any individual as a User and permit such User to access and use the Services for or on behalf of the Customer or any of the Customer’s Affiliates. For the purpose of this document, the term “Affiliate” shall mean any entity that owns or controls, is owned or controlled by, or is under common ownership or control with the Customer. We reserve the right to limit or suspend Customer’s (and/or any User’s) access or use of the Services, in whole or in part, if we have reasonable grounds to believe that Customer (or any of its Users) violates these Terms of Services or accesses or uses our Services in a manner that is unlawful, fraudulent, abusive, or that otherwise violates the applicable laws, including without limitation those pertaining to the privacy and property rights (including without limitation intellectual property rights) of others. The Customer understands that by doing so, we will not be liable to the Customer or any other person for any inconvenience, losses or damages whatsoever.

7.2 By accessing and using the Services, the Customer guarantees to the Company that: (i) it possesses all necessary permissions and authorizations to access and use the Services in a manner described in these Terms of Service; (ii) it has taken and will take such steps as may be necessary to ensure that its access and use of the Services complies with the applicable laws and regulations; and (iii) it does not and will not use the Services for any purpose that is illegal, unlawful, fraudulent or contrary to these Terms of Service, and it will fully cooperate with us to investigate any suspected or actual illegal, unlawful, fraudulent or improper activity related to the Services. The Customer further understands and agrees that the Customer is fully liable for its Users’ access and use of the Services and their compliance with these Terms of Service, as well as for all of their actions and omissions, as if they were actions or omissions of the Customer directly.

Support
8.1 Support services in relation to each Service will be provided to the Customer directly by the authorized sales channel through which the Customer procured such Service and may be subject to additional terms and conditions imposed by such sales channel.

Service availability
9.1 We work hard to maximize the availability of our Services. The monthly availability of the Cloud Service is 99.0%. The monthly availability of the Cloud Service is calculated as follows: (Total Time – Downtime) / Total Time x 100, where the “Total Time” represents the total number of minutes in a calendar month, and the “Downtime” corresponds the number of minutes in such month during which the Service was inaccessible to the Customer, as determined by the Company. The foregoing calculation excludes performance availability issues that are generally outside of our reasonable control, or were caused directly or indirectly by the Customer, including, without limitation, the following occurrences: 1) Any Downtime during a period for which no payment was received by the Company as of the time of such Downtime. This includes Customer’s failure to pay for use of the Service by Customer, including but not limited to when subscriptions or prepaid balance run out; 2) Customer’s use of any beta or trial Service; 3) Customer’s failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or use of the Service in a manner inconsistent with the features and functionality of such Service; 4) Factors outside our reasonable control, including, but not limited to, any force majeure events, failures, acts or omissions of your infrastructure providers (e.g. internet service provider) or failures of the internet; 5) Customer’s or third-party hardware or software issues; 6) Actions or inactions of Customer or third parties; 7) Actions of third parties, including but not limited to security compromises, ransomware, denial of service attacks and viruses; 8) Customer’s use of the Service after Customer was advised to modify its use of the Service, if Customer did not modify its use as advised; 9) Acts or omissions of Customer’s employees, agents, contractors, or vendors, or anyone gaining access to Service by means of passwords or equipment;10) Scheduled maintenance announced at least 24 hours in advance; 11) Emergency maintenance periods (that may or may not be announced in advance) necessary to correct an important security vulnerability or other material and timesensitive issue; 12) Customer’s violations of the Terms of Service; 13) Law enforcement activity.

9.2 For any calendar month during which the Company fails to achieve the availability levels set out above, the Company agrees to issue, upon request, a compensation to Customer in the form of a credit calculated based on the actual availability of the Cloud Service as determined by the Company during such month. The credit percentage defined in the table below is granted on the amount received by the Company for the Customer’s subscription to the relevant Service during such month. No credit shall be issued for a Cloud Service made available on a trial basis. Actual availability / month of 98.9 to 98.0% will be credited 10% of the monthly fee; actual availability / month below 98.0% will be credited 20% of the monthly fee.

Data recovery
10.1 Due to the nature of data recording in optical discs and physical offline archiving of the discs, the recovery of data is not instantaneous. Data recovery requests can take up to 48h to be fulfilled. A Priority recovery might be available in some plans that aims to recover data in 2h depending on sistem load.

10.2 A fee is applied to all recovery requests and charged by GB. Recovery fees are published on the subscribtion plans and presented to the client upon subscription.

Service Update
11.1 We may need to adapt the scope of our Services to provide our Customers with our newest features and security protections, as well as to comply with the applicable legal framework. This may include, from time to time, discontinuing features that are of little or no relevance to most of our customers. While we may make these changes without advance notice to our customers, we promise not to materially decrease any key features of the Services without first advising you in writing.

Fees
12.1 The provision of the Service to the Customer by the Company under this Agreement is subject to Customer’s timely payment of all fees owed to the Company or its authorized distributors or resellers transacting with the Customer for use of the Service, as provided in the Customer’s order. All fees paid to the Company are non-refundable.

12.2 Fees shall be paid based on invoices issued by the Company. Invoices for monthly or annual subscriptions will be issued following the activation of the Service (for the Initial Term), and thereafter, on monthly or annual basis. All invoices are payable at the time they are issued.

12.3 Unless expressly stated in the Order or otherwise agreed to in writing between you and us, subscriptions to Services must be paid for via a valid credit or debit card (through major payment card networks generally accepted by the Comapny). If you opted for a preauthorized method of payment, you are expressly authorizing us to have charged all the Fees and other applicable charges pertaining to your procurement of Services to the payment card that you’ll have provided in relation to your subscription, which includes the Fees for recurring payments for subscriptions, payment for any Optional Features, as well as any other charges payable under your Plan or the Terms of Service (including any applicable addendum or Services Supplement thereto). Recurring charges will be charged to your payment card monthly, annually or at such other frequency which corresponds to the Plan and the Optional Features, if any, selected by you.

12.4 Unless otherwise agreed to in writing by between you and us, all payments will be processed by a third-party and the Company will not store your payment card data. Payment processing will be subject to the payment processor’s terms and conditions and privacy policy. For the purpose of this section, payment processing is deemed to be a ThirdParty Service, as defined in the Terms of Service, and the Company shall have no liability to you or your Users for such payment processor’s access and use of your payment card data and such payment processor’s compliance with its own terms of service and privacy policy. Credit and debit card payments are subject to the approval of the card issuer, and the Company will not be liable in any way if a card issuer refuses to accept a credit or debit card for any reason. You are responsible for any credit card chargeback or similar fees for refused or rejected payments chargeable by your card issuer or the thirdparty payment processor. The Company reserves the right to further charge you an administrative fee for refused or rejected payments processed under this Subscription Addendum.

12.5 If the Company has not received payment within thirty (30) days after the due date, or if the payment card associated with your account is declined or fails for any reason, we will send you a written warning notice by email in such case (using the contact information associated with your account for the Service) and allow you a reasonable time (under the circumstances) to issue your payment to us. Except for any invoiced amounts disputed in good faith by you, and without prejudice to any other remedies available to us, we reserve the right to charge you an annual interest rate of nine percent (9%) above the policy interest rate of the Bank of Portugal, or the maximum amount permitted by law, whichever is lower, compounded monthly, until the full payment is received. In addition, in the event legal action is taken by us for payment, you agree that we may recover costs of collection and reasonable attorney’s fees. We further reserve the right to suspend or terminate your access to the Cloud Service if you fail to pay your Fees as they become due.

12.6 Unless expressly stated otherwise by the Company, all Fees are exclusive of applicable sales, valueadded and other similar taxes, all of which shall be paid by you in addition to such Fees. You hereby confirm that we may rely on the information that you provided to us as part of the Order as being the place of supply for such tax purposes. If you are legally entitled to an exemption from the payment of any taxes, you must promptly provide us with a valid tax exemption certificate for each requested taxing jurisdiction. Unless otherwise prohibited by law, we will apply the benefits of any requested tax exemption to charges occurring under your account on a going-forward basis following our receipt and processing period of each such tax exemption certificate.

12.7 If you reasonably and in good faith dispute any portion of the invoiced Fee, you must provide us written notice to that regard within thirty (30) days from the date of your receipt of the relevant invoice, identifying in detail the reasons for the dispute, the amount being disputed, as well as submitting to us all relevant proof as may be reasonably necessary for us to validate your claim. Your dispute as to any portion of the invoice will not excuse your obligation to timely pay the undisputed portion of such invoice. Upon resolution of the dispute between you and us, you must pay any unpaid but payable amounts within thirty (30) days, without further notice from us. Any amounts that are found to be in error resulting in an overpayment by you will be applied as a billing credit towards future invoices or reimbursed for any outstanding billing credits at the expiration or termination of this Subscription Addendum.

Excessive Consumption
13.1 If the Company determines that the Customer’s aggregate activity on the Service imposes an unreasonable load on bandwidth or infrastructure, the Company may impose controls to keep the usage below excessive levels. Upon receiving Service notification (e.g., Email) of excessive (vs. expected) usage, the Customer agrees to immediately work on a usage reduction plan or to work with us or its authorized reseller to enter into a separate fee agreement for the remainder of the Service term. If the parties are not able to establish a resolution within 5 days after the initial Service notification, then Company may institute controls on the Service or terminate the Service and this Agreement, without liability.

Termination
14.1 These Terms of Service will be terminated upon the occurrence of any of the following events: (i) if the Customer terminates these Terms of Service by providing the Company with a notification to that regard; (ii) The Company terminates these Terms of Service by providing the Customer with a written notice by email to that regard if: (a) the Customer (or any of its Users) is in breach of any of the terms of these Terms of Service or any license for third-party software, (b) the Customer’s use of the Services is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Services, Company network or systems, (c) Company receives an order from a court or a regulatory authority to cease the provision of the Services to the Customer or the relevant Services in the territory where such Service was made available to the Customer or in general, or (d) Company discontinues the relevant Services in the territory where such Clud Service was made available to the Customer, or in general (provided that in such case we will not terminate your access to such Service until the later of the expiration of your then-current subscription term or (6) months following issuance of our notice advising you of such discontinuation); or (iv) as otherwise provided in these Terms of Service.

14.2 Upon termination of these Terms of Service: (i) The Company will immediately stop providing all Services to the Customer (including its Users), (ii) all software licenses provided by the Company to the Customer as part of the Services, if any, will immediately terminate, and the Customer must uninstall such software from all of its devices, and destroy all copies thereof. However, the Customer may make a reasonable number of copies of the software for general archiving and compliance purposes.

14.3 If you terminate the Terms of Service or any Plan or Optional Feature as a result of a material breach by the Company of its obligations under the Terms of Service, you will not be liable for any Fees payable for the period following the date of such termination of the Terms of Service, the Plan or Optional Features (except for those Fees arising from your use of the Services prior to them being disconnected), and we will issue to you a prorated refund of all prepaid and unused Fees paid by you for terminated Services. If, however, you terminate the Terms of Service or any Plan or Optional Feature for any reason other than as a result of a material breach by the Company of our obligations under the Terms of Service, you will not be eligible to a refund of any prepaid Fees and must, to the extent permitted by applicable law and without limiting any other right or remedy of the Company, pay, within thirty (30) days of such termination, all amounts that have accrued prior to such termination, as well as Fees payable for the remainder of the Initial Term or the then-current Renewal Term pertaining to your subscription Plan.

Data Protection
15.1 The Customer may provide the Company with cloud application data and network traffic data such as IP address, URL, URL-category, file type, filter result, virus id, files, records, metadata, the Customer selected account names, and activity types, and any other network traffic sent to or received from the Customer through use of the Service, in detail and/or in an aggregate form (collectively “Use Data”).

The Customer may also provide Company with other information such as administrator identifying information, user and group names, and other information through or in connection with the Customer use of the Service (“Admin Data”). The Company shall act as a data processor and process the Use Data and Admin Data of the Customer only on behalf of and under the direction of the Customer (and its designees), as set forth in this Agreement. Company shall use Use Data and Admin Data only for legitimate business purposes in connection with providing and promoting its Services, as set forth in this Agreement.

Obligations
16.1 Customer represents and warrants that:

It will comply with all applicable privacy and data protection laws and regulations applicable to its business and its performance of its obligations under this Agreement with respect to any Use Data and Admin Data uploaded to, submitted to, stored on, or processed by the Service; and

It will provide any notices and obtain required consents related to its use of the Service and Company provision of the Service, including those related to the collection, use, processing, transfer, monitoring, and disclosure of Use Data and Admin Data.

Confidentiality, Privacy
17.1 Either party may provide to the other information under this Agreement which is confidential in nature in connection with business discussions related to the Service, such as, but not limited to, codes, technology, know-how, algorithms, testing procedures, structure, interfaces, specifications documentation, pricing information, bugs, problem reports, analysis and performance information, and other technical, business, operational and product-related data (“Confidential Information”). All such information shall be marked as confidential in order to be protected hereunder and shall not be disclosed to any third party. It is understood that the Company may disclose the Customer Confidential Information to its affiliated companies, contractors, partners and licensors (including their respective directors, officers, contractors, employees, agents and representatives) on a need-to- know basis, in order to be able to provide the Services to the Customer.

17.2 We respect our customers’ privacy. In order to be able to provide the Services, we may need to access, collect and store certain proprietary, confidential or personal information. We may also need to share such information with our licensors and partners who assist us in providing the Services. The objectives and the scope of our collection, use and disclosure of personal data of the Customer and its Users in connection with their use of the Services is outlined in our privacy policy, available at https://opticalbackup.com/privacy. The Customer acceptance of these Terms of Service will also signify the Customer acceptance of the terms of the privacy policy.

Processing of personal data
18.1 The Customer shall not disclose (and shall not permit any user to disclose) any Special Categories of Personal Data to the Company for Processing

18.2 The Company shall ensure that any person it authorises to Process the Submitted Data shall treat and protect the Submitted Data as confidential information, and shall be under a duty of confidentiality (whether contractual or statutory).

18.3 The Company shall implement appropriate technical and organisational measures to protect the Submitted Data from unlawful destruction, or unauthorised disclosure of or access to the Submitted Data (a “Security Incident”) that are based on industry practices and the requirements of the Applicable Data Protection Laws.

18.4 The Company shall provide reasonable and timely assistance to the Customer (at the Customer’s expense) to enable the Customer to support its users in responding to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Laws (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject or regulator in connection with the Processing of the Submitted Data. In the event that any such request, correspondence, enquiry or complaint is made directly to the Company by email, The Company shall promptly inform the Customer providing full details of the same.

18.5 The Company shall provide reasonable cooperation to the Customer (at the Customer’s expense) in connection with any data protection impact assessments or consultations with regulatory authorities that are required under the Applicable Data Protection Laws.

18.6 The Company shall not transfer the Submitted Data of any residents of any Member State outside of the territory of the European Economic Area (“EEA”), unless it has taken such measures as are necessary to ensure the transfer is made in compliance with the EEA Data Protection Laws. Such measures may include (without limitation) transferring the Submitted Data to a recipient in a country that the European Commission has designated as providing adequate protection for Personal Data, to a recipient that has achieved binding corporate rules authorization in accordance with Applicable Data Protection Laws, or that is certified under the EU-US Privacy Shield framework (or its equivalent), or to a recipient that has executed the “standard contractual clauses for the transfer of personal data to processors established in third countries” (as set out in European Commission Decision 2010/87/EU or its replacement).

18.7 If the Company becomes aware of a confirmed Security Incident, the Company shall inform the Customer without undue delay and shall provide reasonable information and cooperation to the Customer. The Company shall further take any reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident and shall keep the Customer informed of all material developments in connection with the Security Incident.

18.8 The Company shall destroy or make available for download, at Customer’s choice, all Data under its control upon the expiration or termination of the Terms of Service. This requirement shall not apply to the extent that the Company is required by applicable law to retain some or all of the Submitted Data, or to Submitted Data it has archived on backup systems, which the Company shall securely isolate and protect from any further Processing, except to the extent required by such law.

Data security.
19.1 We have put in place and will maintain throughout your subscription to the Services administrative, physical, and technical measures for the protection of the security, confidentiality and integrity of the Cutomer Data. Those measures include, safeguards for preventing access, use, modification or disclosure of the Customer Data by our personnel except if necessary to provide you with the Services and any related support, to prevent or resolve service or technical problems, if required by law, or if otherwise agreed to in writing by the Customer.

Support
20.1 Support Services provided with the Service are governed by the terms and conditions located at https://opticalbackup.com/terms-and-conditions which may be updated from time to time and are incorporated into this Agreement by reference. The Service shall include any and all updates, upgrades, and bug fixes that may be provided from time to time to the Customer. In the event the Customer experiences any incidents or failures relating to the Service, the Customer shall report such matters to the Company immediately.

Warranty
21.1 We warrant that during the term of your subscription to a Service, the Services will perform materially in accordance with the applicable documentation throughout the duration of the Custumer’s subscription term, provided that the Service is used in accordance with such documentation. For clarity, the foregoing warranty does not extend to ensuring continuous availability of any Third-Party Services, as they may not be under our control. If we are in breach of any warranty above, the Custumer’s only remedy will be to terminate these Terms of Service in accordance with section 14.1 above.

21.2 The Custumer warrants that its access and use of our Services (including, where applicable, access and use of any software provided hereunder) will be in compliance with all applicable laws, rules and regulations, including privacy, intellectual property, exports and imports laws and regulations in European Union and in other countries. The Custumer is prohibited from downloading, accessing and/or using any Service, in whole or in part, in any territory that is under an embargo by the European Union. In all cases, the Customer is responsible for determining if and how the Customer needs to comply with the applicable laws, rules or regulations, and if the Customer needs to obtain any permits for that before the Customer (including any of its Users) access or use any Service (or access or use any accompanying software and/or hardware, if applicable).

21.3 Except for the warranties described in section 21.1 above, to the maximum extent permitted by law, the company makes no representations and gives no warranties with regards to the Services, including without limitation with regards to their performance, availability, coverage, uninterrupted availability, security, pricing or operation, or that of any software, hardware, services, connections, networks or Third-Party Services used or provided in association with our Services. All Services (including any software provided in association with them) are provided “as is” and “as available”, without any representations or warranties whatsoever, including, without limitation, warranties of title, security, non-infringement, merchantability, quality, availability or fitness for a particular purpose.

21.4 The Customer agrees to defend the Company against or settle any Claims against the Company brought by third party alleging that Customer Data infringes or misappropriates such third party’s privacy or property rights (including without limitation intellectual property rights), or otherwise violates any applicable laws or regulations, and Customer agrees to indemnify and hold harmless the Company from any damages, attorney fees and legal costs awarded against the Company, or the amounts payable by the Company under a settlement approved by the Customer in writing, as a result of such Claim against the Company, provided that the Company promptly gives the Customer a written notice of such Claim, gives the Customer sole control of the defense or settlement of the Claim (provided that the Company shall first approve any settlement in writing, which approval must not be unreasonably withheld), and provides the Customer with all reasonable assistance at the Customer’s expense.

Limitation of Liability
22.1 Except for the parties’ respective confidentiality and indemnity obligations under these Terms of Services, to the maximum extent permitted under the applicable laws, neither party shall be liable to the other party for any special, exemplary, indirect, incidental, consequential or punitive damages, regardless of the theory of action. The Company will not be liable for any loss or corruption of the Cusomer Data, or for any costs or expenses associated with backing up or restoring any of such Customer Data. To the maximum extent permitted under the applicable laws, the Company total aggregate liability for all past, current and future Claims by the Customer (including any of its Users) under these terms of service or in association with the Services provided hereunder shall be limited to the amounts paid by the Customer to the Company for the Services during the twelve (12) months immediately preceding the occurrence of the event giving rise to such Claim.

Arbitration
23.1 In the event of any dispute arising in and out of this Contract between the Parties, it shall be resolved by Arbitration. This agreement hereto shall be governed and interpreted following the laws of Portugal. The place of Arbitration shall be tribunal judicial da comarca de Aveiro, Portugal. The Arbitrators’ decision shall be final and will be binding upon both Parties.

Miscellaneous
24.1 If you wish to contact us for matters related to these Terms of Service, please write us at client@opticalbackup.com. If we need to contact the Customer for matters related to these Terms of Service, we will use the contact information that you will have provided to us as part of your subscription to the Services. Please ensure to promptly advise us of any changes to your contact information. All notices will be deemed delivered on the date shown on the electronic mail confirmation of delivery.

24.2 The Customer hereby acknowledges that circumstances outside of our reasonable control (such as, without limitation, internet or power outages, fires, floods, vandalism, sabotage, large scale outbreaks of computer virus, ransomware, malware or other malicious code, strikes, riots, wars or other military action, civil disorder, acts of terrorism, acts of third parties, or the like) may cause delays in our ability to perform Services. As such, the Customer hereby acknowledges and agrees that the Company shall have no liability whatsoever to the Customer (including its Users) or any third party for any direct or indirect damages whatsoever, resulting from such delays or any incapacity to perform the Services in a timely manner.

24.3 The failure by the Company to fully enforce any of its rights under these Terms of Service shall not affect the right to require such performance at any time thereafter; nor shall any failure or delay to enforce any right or privilege by the Company under these Terms of Service be interpreted as a waiver of such right or privilege by the Company.

24.4 If any provision of these Terms of Service is held by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law. Nonetheless, such provision shall continue to apply in full force and effect in all other jurisdictions, as the case may be. Moreover, the remaining provisions of these Terms of Service shall remain in full force and effect.

24.5 We reserve the right to make changes to these Terms of Service (including any ancillary document, such as any addendum or supplement hereto) at any time by (a) posting a revised version of such terms on our website, or by (b) sending information regarding any such amendment to the email address provided to us by the Customer in connection with the Services (as the case may be). The revised Terms of Service or any such ancillary document will become effective and apply to the Customer within thirty (30) days from the Customer’s receipt of the updated document or from the date of its publication on the website, whichever occurs first.

24.6 Neither party may assign or otherwise transfer these Terms of Service or any of its rights or obligations hereunder to any person or entity, in whole or in part, without the other party’s prior written consent. Any attempted assignment or transfer by the Customer in violation of this requirement will automatically terminate these Terms of Services and any of the rights or privileges granted to the Customer hereunder.

24.7 This agreement represents the entire understanding of the parties superseding all prior agreements, understandings, and discussions whether conveyed orally or in writing, and there are no other warranties, commitments, understandings, or representations with respect to this agreement.