Terms of Service for Businesses

Last updated: 15 November 2022

The following terms of service (hereinafter also the “Terms of Service”) govern the Client’s use of Tenon’s services. These Terms of Service shall apply to all present and future services provided by Tenon to the Client, even if no express reference is made to the Terms of Service in individual cases when the contract is concluded.

1. Definitions

“Client” means the user of the services, with whom a service agreement has been concluded.

“Data” means unencrypted data.

“Party” means either the Client or Tenon and “Parties” means both the Client and Tenon together.

“Services” means the services set out in Section 2 of these Terms of Service.

“Tenon” means Tenon GmbH, Pater-Schwartz-Gasse 11A, A-1150 Vienna, FN511922b.

“We” and “our” will refer to Tenon, “you” and “your” will refer to the Client.

2. Service

Tenon is a secure off-site backup solution that allows customers to store encrypted backup copies of their data on systems operated by Tenon and restore that data at a later point. All data is encrypted with your personal encryption key before being transferred to our systems. In order to decrypt your backups, you need a copy of your personal encryption key.

Nobody – including Tenon – can access your Data without your encryption key, so it is vital that you keep a copy of your encryption key in a safe place. Since your encryption key protects your backups from unauthorized access, you should never share your encryption key. We do not have access to your encryption key and will never ask for your encryption key.

When you first connect a device to Tenon, you can choose the storage location of your encrypted backups. Your encrypted backups will never leave the jurisdiction that you have chosen without your explicit consent.

3. Fees and Payment Modalities

3.1 Service Fees

Tenon shall charge you their fees as set out in your individual service agreement.

3.2 Invoicing and Payment

Tenon shall invoice all fees in accordance with the frequency, method, payment terms and currency set out in the individual service agreement and in any case in advance. In the case of period billing, any partial period shall be pro-rated.

3.3 Overdue Charges

In case any amount due is not received by Tenon within thirty (30) days after the date of invoice, Tenon shall be entitled to stop providing the Services to you. Tenon shall also be entitled to charge statutory default interest in the amount of 9.2 percent above the base interest rate annually from the date that the payment by the Client is due if the Client is at fault for the default. In other cases, the default interest will be 4 percent annually.

3.4 Taxes

All Service Fees are net of taxes. You will be responsible for payment of all applicable VAT, duties, sales, use or withholding taxes, or other similar taxes, fees, or charges whether now or hereafter enacted, however imposed on or based on the provision, sale or use of the Services (“Taxes”). If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

4. Service Level Agreement (SLA)

4.1 Service availability Targets

Tenon shall use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, with an overall 99.95% annual availability (i.e. 365 days minus 4hours20min), except for:

4.2 Service unavailability refund

Except under the conditions mentioned in section 4.1 above, if the Services’ Availability is less than 99.95%, you will be issued a refund in the amount detailed in the following table by Tenon:

You shall address a service unavailability refund request within 10 business days via email to office@tenon-backup.com mentioning your name and address as well as the times and dates of the unavailability. If the unavailability is confirmed by us, you will receive your refund within six weeks after our receipt of your refund request at the latest.

5. Use of the Services

5.1 Your responsibilities

The data you store with Tenon belongs to you and you alone. While Tenon provides the means of creating and restoring backup copies of your Data, we can never access your Data. Therefore, you are solely responsible for ensuring that the data stored at Tenon matches your expectations and verifying its integrity regularly.

Nobody can access your Data without your personal encryption key. It is your responsibility to (i) ensure the safety of your encryption key and to (ii) always keep a copy of your encryption key in a safe place so you can access your backups should you lose access to your original encryption key.

Since your encryption key protects your Data from unauthorized access, you should never share your encryption key. We do not have access to your encryption key and will never ask for your encryption key. Tenon will not be liable nor responsible if your Data is accessed due to you (i) losing, (ii) sharing (may it be intentionally or not) or (iii) handling your encryption key in such a way that a third party may have knowledge about it.

5.2 Misuse of the Services

You shall not

  1. interfere with or disrupt the integrity or performance of the Services or third-party data contained therein,
  2. attempt to gain unauthorised access to the Services or their related systems or networks,
  3. use Tenon for purposes other than creating backup copies of your data or restoring these backup copies to your systems, or
  4. sell, resell, rent or lease the Services without our explicit permission.

5.3 Interruption of the Services

In case Tenon’s infrastructure is damaged (or threatened to be damaged) through the IP address of a client (e.g. virus or hacking) or otherwise, we are expressly authorized to immediately interrupt the Services and shall immediately inform you thereof.

6. Exclusion of Warranties

Except for the representations and warranties expressly made in these Terms of Service, we make no representations or warranties, express or implied, statutory or otherwise, including warranties of merchantability, satisfactory quality, and fitness for a particular use or non-infringement of third parties’ rights. If Tenon makes use of sub-contractors to fulfil its obligations, and if Tenon has claims against those sub-contractors on the basis of representations or warranties, Tenon shall assign these warranty rights to the Client and the Client shall not have any claims against Tenon.

7. Indemnification

7.1 Exclusion of Indirect and Consequential Damages

Notwithstanding any other provision hereof, Tenon and any party acting for Tenon, including, but not limited to affiliates, agents and employees, shall not be liable for any indirect, incidental or consequential damages (including but not limited to damages for lost profits, lost revenues, loss of goodwill, loss of anticipated savings, loss of customers, loss of data, interference with business or cost of purchasing replacement services), arising out of the performance or failure to perform the Services, whether or not caused by the acts or omissions of Tenon and any party acting for Tenon, including, but not limited to affiliates, agents and employees, and regardless of whether Tenon and any party acting for Tenon, including, but not limited to affiliates, agents and employees have been informed of the possibility or the likelihood of such damages, provided however, that the foregoing limitations shall not apply to Tenon’s expressly stipulated contractual indemnity obligations. These provisions do not apply in cases in which such damages are finally judicially determined to have resulted primarily from the willful misconduct (Vorsatz) of Tenon.

7.2 Limitation of Liability

Tenon’s and any parties’ acting for Tenon, including, but not limited to affiliates’, agents’ and employees’ sole liability for damages with the exception of personal injuries, arising out of or in connection with its Services provided under the individual service agreement as well as these Terms of Service is limited to cases in which such damages are finally judicially determined to have resulted primarily from gross negligence (grobe Fahrlässigkeit) or willful misconduct (Vorsatz) of Tenon.

Further, the liability of Tenon and any party acting for Tenon, including, but not limited to affiliates, agents and employees, will be limited with i) any amount paid by you hereunder in the three (3) months preceding the incident and/or (ii) your right to terminate the Service, being specified that in no event shall Tenon’s aggregate liability arising out of or related to this Agreement exceed the total amount paid by you hereunder. The foregoing shall not limit your payment obligations under Section 3.

Tenon will not be liable for the content of your Data since Tenon cannot even access your Data. Subsequently, Tenon is not responsible for your data and its contents pursuant to Section 16 Austrian E-Commerce-Act (E-Commerce-Gesetz).

7.3 Statute of limitations

Claims for damages shall become statute-barred no later than the expiry of one year from knowledge of the damage and the damaging party.

8. Term and Termination

8.1 Term

The Services will be provided on an indefinite-time basis and may be terminated at any Party upon a thirty (30) day prior written notice to the other Party.

8.2 Termination or Suspension by Tenon

Tenon shall have the right, upon written notice, to immediately terminate and/or suspend the delivery of the Services (without liability) in the event that:

  1. You have violated (i) any law rule, regulation or directive of any governmental authority related to the Services or your use thereof or (ii) Section 5 (Use of the Services);
  2. Tenon receives any direction, notification or instruction from any governmental authority (or any independent Internet content monitoring entity) to suspend or terminate the provision of the Services to you;
  3. Tenon receives plausible information that your Data contains illegal materials;

Tenon cannot access your Data and has therefore no knowledge of its contents. However, if a misuse of the Services has become evident due to (i) a large number of clients accessing the same data simultaneously, (ii) an unusually high read to write ratio, (iii) unusually high data transfer volumes, or (iv) other signs that strongly indicate a misuse of the Services, Tenon may terminate delivery of the Services to you without liability.

8.3 Tenon’s Remedies

In the event Tenon terminates or suspends the Services because of any reasons set forth in Section 8.2, then you agree to pay to Tenon the agreed-upon fees and/or any other fixed minimum charges for the term of your service agreement and these Terms of Service. Any partial period shall be pro-rated.

8.4 Return of Data

In the event Tenon terminates the Services, you will be able to access a read-only copy of your data for thirty (30) days before your data is deleted from Tenon’s systems, starting from the date of the termination notice.

8.5 Surviving Provisions

Sections 3 (Fees and Payment Modalities), 6 (Exclusion of Warranties), 7 (Indemnification), 8 (Term and Termination), 9 (Miscellaneous Provisions) shall survive any termination or expiration of these Terms of Service.

9. Miscellaneous Provisions

9.1 Severability; No Waiver

The invalidity, illegality or unenforceability of any provision of these Terms of Service shall in no way affect the validity, legality or enforceability of any other provision thereof. The Parties undertake to negotiate in good faith with a view to replace such invalid, illegal or unenforceable provision with another provision that best reflects the intentions of the Parties.

The failure by either Party to exercise or enforce any provision of these Terms of Service shall not be deemed to be a waiver of the application of such provision or of a right nor to operate so as to bar the exercise or enforcement of any such provision or right on any later occasion.

9.2 Notice

Any notice shall be sent by a Party to the other Party by email, registered mail or courier, to the following address:

a) To Tenon:

Tenon GmbH, Pater-Schwartz-Gasse 11A, 1150 Vienna, Austria

Email: office@tenon-backup.com

b) To you:

at the address set forth in your individual service agreement or at such other address as may hereafter be provided by you.

9.3 Amendments

Tenon may modify these Terms of Service upon a thirty (30) day notice to you. Upon receipt of such notice, you may terminate any Order by delivering a written thirty (30) day notice of termination no later than thirty (30) days after the notification date of the change.

9.4 Storage Location / Governing Law; Jurisdiction

When you first connect a device to Tenon, you can choose the storage location of your encrypted backups. Your encrypted backups will never leave the jurisdiction that you have chosen without your explicit consent.

These Terms of Service and any individual service agreement shall be governed by the laws of Austria, without giving effect to any choice or conflicts of law provision or rule that would cause the application of the law of any jurisdiction other than Austria. The Parties irrevocably submit to the exclusive jurisdiction of Handelsgericht Wien. Notwithstanding the above, Tenon may submit any dispute to any court of competent jurisdiction.