Terms of Use

§ 1 Subject of the terms of use

(1) BackHub UG (haftungsbeschränkt) (hereinafter referred to as “Service Provider”) provides a platform (hereinafter referred to as “Platform”) on the GitHub marketplace via which registered users can back up GitHub repositories. Further information about the services of the Platform can be found in the service description, § 8.

(2) These amended and restated terms of use (“Terms of Use”) govern the provision of the services by the Service Provider and the use of these services by you as a duly registered user (“You”/”Your”).  The Service Provider and You intend that the provision of services and access to the Platform hereunder be implemented through mutually agreed upon Orders placed using the Service Provider’s prescribed Order Form accepted by authorized representatives of each party and each of which will be deemed to incorporate these Terms of Use.  In the event of a conflict between these Terms of Use and any Order Form, these Terms of Use will control.

(3) Address and information about the Service Provider:
333 Preston St., Suite 200,
Ottawa, Ontario
K1S 5N4

§ 2 Changes to terms of use

(1) You acknowledge and agree that the Service Provider may amend these Terms of Use at any time by posting the relevant amended and restated terms of use on the Service Provider’s website, available at https://www.backhub.co/terms-of-use and such amendments to the Terms of Use are effective as of the date of posting. Your continued use of the Platform and/or the services after the amended terms of use are posted to the Service Provider’s website constitutes Your agreement to, and acceptance of, the amended terms of use which form a binding contract between You and Service Provider. If You do not agree to any changes to the Terms of Use, do not continue to use the Platform and/or the services and advise the Service Provider accordingly.

(2)  In the event of changes in value added tax or the application of other taxes (including, without limitation, any applicable goods and services, harmonized sale, sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, provincial/state, territorial or local taxing authority or governmental or regulatory entity on amounts payable on the use of the Platform or services hereunder), the Service Provider is entitled to collect the amount of such applicable taxes from Customer and Customer will be liable to the Service Provider for the payment of any such applicable taxes; provided Customer will not be responsible for any taxes imposed on, or with respect to the Service Provider’s income, revenues or real or personal property or assets.

§ 3 Right to registration

(1) The use of the services available on the Platform requires Your registration as a user.  The Service Provider reserves the right to refuse access to the Platform and the use of the services available on the Platform to anyone for any reason at any time.

(2) You are only permitted to register if You are of legal age and have unlimited legal capacity and pursue a commercial or independent professional activity. Minors are not allowed to register. For a legal entity, registration must be done by a legally competent natural person fully authorized to represent that entity.

§ 4 Login to the platform

(1) You may subscribe among various available usage plans on the Platform, the scope of services of which can be viewed on the following page: github.com/marketplace/backhub.

(2) The registration takes place via the marketplace of the provider GitHub, for which a separate access to the services of this provider is required. The provisions of the contract with GitHub are not affected by these Terms of Use.

§ 5 Access data

(1) During the registration process You will be asked to grant access to Your data at GitHub. After Your access has been activated You can log in to BackHub with your GitHub access.

(2) It is Your responsibility to keep the access data, including Your username and password, secret and to not make them accessible to unauthorised third parties.  The Service Provider is not responsible and cannot be liable for any loss or damage from Your failure to maintain the security of Your account, username and/or password or for access to the Platform and use of the services using Your username and password.

(3) It is also Your responsibility to ensure that access to the Platform and use of the services available on the Platform is performed only by You or by persons authorized by You. If You are concerned that unauthorised third parties have gained or will gain knowledge of Your username and/or password or have or will gain access to Your data, please inform the Service Provider immediately. You are also responsible for all use and/or other activities that are performed by You relating to Your data including, without limitation, arising by operation of applicable law.

§ 6 Updating the user data

It is Your responsibility to keep Your information (including Your contact details) up-to-date. If there is a change in Your information at any time during Your participation, You must promptly correct the information in Your personal settings on the Platform. If You are unable to do so, please notify the Service Provider immediately via e-mail or fax about the changes to Your information.

§ 7 Termination

(1) You can terminate GitHub plans at any time as provided in this §7. There will be no refunds or credits for unused periods of service in the event of any reduction, downgrade or termination. However, the service remains active for the duration of the paid billing period subject to the continued application of these Terms of Use for such period.

(2) The Service Provider can terminate the contractual relationship between You and the Service Provider (the “Contract”) and/or any orders (existing or pending) immediately by giving notice of termination to Customer in the event of: (a) a material breach or non-performance, including non-payment, if such breach remains uncured fifteen (15) days after receiving notice of the breach by the Service Provider; or (b) Your bankruptcy or insolvency. Notwithstanding anything herein to the contrary, the Service Provider shall be entitled to terminate the contractual relationship with You with immediate effect in the event of a breach of §14 below.

(3)  The Contract shall commence as of the Effective Date and, except as otherwise terminated as provided in this §7, shall continue for an initial term of twelve (12) months from the Effective Date (the “Initial Term”). After expiry of the Initial Term, the Contract shall be automatically renewed for a further twelve (12) months unless either party terminates the contract with thirty (30) days’ notice prior to expiry of the Initial Term or any respective renewal period (the “Renewal Term(s)”).  As used herein “Term” means the Initial Term and all successive Renewal Term(s).

(4) Once termination takes effect, the Contract ends and Your access to the Platform will be revoked. The Service Provider reserves the right to block Your username and password once termination takes effect.

(5) The Service Provider is entitled to irretrievably delete all data in Your account after a period of thirty (30) calendar days from the effective date of termination and after the expiration of any legally mandated record-keeping deadlines.

§ 8 Services offered and availability of services

(1) Using its Platform, the Service Provider provides You with a data backup function for temporary use for the repository service provider GitHub on its marketplace. The service includes the storage and recovery of public and private GitHub repositories including metadata (hereinafter collectively referred to as “Content”). The Content is backed up as an incremental backup (daily) and kept for the last thirty (30) days. You are given the opportunity to download the Content from Backhub via web interface or to restore it to GitHub. When You delete a repository on GitHub, the backup is automatically archived.  The last snapshot of the archived Content is retained for the period of time set out in the usage plan to which You subscribe.

(2) Content and scope of the services are further determined by the various usage plan(s) to which You subscribe and the functionalities which are available on the Platform from time-to-time. The available usage plans and the scope of the functionalities/features for these usage plans are more fully described on the subscriptions page of the Service Provider’s website found at:  https://www.backhub.co/pricing/backhub.

(3) The services available on the Platform also include services of third parties to which the Service Provider merely provides access such as, but not limited to, the Service Provider's own cloud services provider. The use of such third-party services is subject to their own terms of service, which may be different or supplementary to these Terms of Use, and the Service Provider is not responsible and cannot be liable for any loss or damage resulting from the provision of any services provided by such third parties.

(4) The Service Provider is committed to providing its services with as few disruptions as possible. However, temporary restrictions or interruptions may occur due to technical disruptions (such as loss of power, hardware and software errors, or technical problems with the data lines).

§ 9 Service changes

(a) The Service Provider is entitled, at any time, to change, modify or discontinue the services, in whole or in part, provided hereunder, to make new services available, and to cease the provision of unpaid services. In this regard, You may, at Your sole discretion, choose to accept these proposed changes, modifications or discontinuance in the services, in whole or in part, or may terminate the Contract in accordance with §7 above.  

(b) Prices for using the Platform and the services are subject to change from time to time and the Service Provider will communicate any price changes on thirty (30) days’ advance notice. Customer may, at its sole discretion, choose to accept these proposed changes or may terminate the Contract in accordance with §7 above.

§ 10 Responsibility for Content and services of third parties

Content from users and other third parties is collectively referred to as “Third-party Content”. The Service Provider does not check Third-party Content for completeness, accuracy or legality and therefore assumes no responsibility or liability for the completeness, accuracy, legality or timeliness of Third-party Content. This also applies with regard to the availability of Third-party Content and its suitability for the specific purpose of the Platform.

§ 11 Scope of permitted use, monitoring of usage activity

(1) Your authorization for use is limited to access to the Platform, as well as the use of the services available on the Platform under the provisions of these Terms of Use and the timely payment of the applicable fees.  

(2) You are responsible for creating, in your area of responsibility, the necessary technical prerequisites for the contractual use of the services.  The Service Provider is not required to provide any advice on this subject.

(3) The Service Provider reserves the right to monitor your usage activity to ensure compliance with §14 below and applicable law. This may potentially include the logging of IP connection data and conversation histories, as well as their evaluation, in the event of a concrete suspicion of a violation of the present Terms of Use and/or a concrete suspicion of the existence of any illegal act or offense.

§ 12 Use of paid services

(1) After a 14-day trial period, the Service Provider shall only offer chargeable services on the Platform. Please refer to the current price list for the applicable prices.

(2) The use of the services available within the access is covered by the monthly usage fee. Please note: With Your booking on the GitHub marketplace You declare in a binding manner that You want to use the respective services. As a result, You accept in a binding manner the Service Provider’s offer about the provision of the paid services, and a contractual relationship is created. The present Terms of Use apply to this contractual relationship.

(3) Please note further: You arrange the provision of the chargeable services directly through Your booking in the GitHub marketplace. The use of the services can then be revoked within 14 days. You must cancel the 14-day trial period in the GitHub marketplace.

(4) In the case of GitHub marketplace plans, the fee for the chargeable services used by You will be collected via GitHub and the method of payment agreed there. You can access the invoice for the chargeable services You used in your personal area of GitHub. The terms and conditions for Your payment and fees are governed by the relevant section of your current GitHub terms of use.

(5)  In the event of default, the Service Provider shall be entitled to charge default interest of 5% above the base rate for consumers and 9% above the base rate for entrepreneurs, unless the Customer proves a lower loss or the Service Provider proves a higher loss.

(7) You may not set-off payment of any amounts due and payable under these Terms of Use as a result of any claim or dispute with the Service Provider or for any other reason.

§ 13 Backing up own Content

(1) Insofar as functionality is available on the Platform, You may back up the Content on the Platform subject to the following provisions. The Content posted by You remains Your property and is treated by the Service Provider in accordance with the Service Provider’s data protection agreement as more described in §16 (2) below.

(2) By posting Content, You grant the Service Provider a non-exclusive, royalty-free and transferable license to use the respective Content, in particular

  • to access, copy, modify, translate, store, reproduce and display the Content on the server of the Service Provider (including the right to collect Content from Your cloud service) for the purpose of providing the services hereunder;
  • to duplicate the Content, as far as this is necessary for the storage of the respective Content; 
  • Insofar as You withdraw the Content You have posted from the Platform, the license granted herein will expire. However, You agree that the Service Provider shall remain entitled to keep copies made for backup and/or verification purposes.

(3) You are fully responsible for the Content you submit. The Service Provider does not undertake a review of the Content for completeness, accuracy, legality, timeliness, quality and suitability for a particular purpose. You therefore represent and warrant to the Service Provider that You are the sole owner of all rights to the Content You post on the Platform, or that You are otherwise authorised (e.g.: have obtained all necessary, consents, permissions, and licenses required in order for Service Provider to provide the services) to post the Content on the Platform and to grant the licenses to the Service Provider in accordance with paragraph (2) above.

(4) The Service Provider reserves the right to refuse the posting of Content and/or to edit, block or remove any posted Content without prior notice to You, if the posting of the Content or the Content itself is a violation of §14 or if, in the Service Provider’s opinion, the Content is likely to result in a violation of §14. 

(5) You also grant to the Service Provider a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Platform and/or services, any suggestions, enhancement requests, recommendations, or other feedback provided by You relating to the Platform and/or services.

§ 14 Prohibited activities

(1) You are prohibited from any activities in connection with the Platform that violate applicable law, the rights of third parties or the principles of youth protection. In particular, the following actions are prohibited:

  • the posting of Content, services and/or products that are pornographic in nature (including, without limitation, any Content that in the United States depicts or describes “sexually explicit conduct” as defined in 18 United States Code §2256 (2) and any Content that in Canada is “obscene” as defined by the Criminal Code, R.S.C., 1985, c. C-46, ss. 163 (1) and 163.1 (1)), violates child protection laws, data protection laws and/or other law and/or are fraudulent;
  • the use of Content that insults or slanders other participants or third parties;
  • the use, provision and distribution of Content, services and/or products that are protected by law or encumbered with third party rights (e.g.: copyright) without explicit authorization.

(2) You are prohibited from engaging in any of the following activities, regardless of any violation of the law, in backing up Your Content on the Platform:

  • the dissemination of viruses, trojans and other harmful files;
  • asking other participants to disclose and saving their passwords or Personal Data for commercial or unlawful purposes;
  • the distribution and/or publication of Content available on the Platform, to the extent that this is not expressly permitted by the respective authors or provided as an explicit functionality on the Platform.

(3) You shall also be prohibited from any action which may affect the smooth operation of the Platform, in particular to unduly burden the systems of the Service Provider.

(4) Should You become aware of any illegal, abusive, use contrary to the Contract, or otherwise unauthorized use of the Platform and/or the services, please contact support@backhub.co. The Service Provider will investigate any such report and, as necessary, take appropriate steps to address any such illegal, abusive, use contrary to the Contract or any other unauthorized use of the Platform and/or the services.

(6) If a suspicion of unlawful or criminal acts exists, the Service Provider is entitled, and may be obliged by applicable law, to review Your activities and to initiate appropriate legal action. This may include notifying public authorities of any such activities and providing records to the appropriate public authorities.

§ 15 Suspension of access

(1) The Service Provider reserves the right to temporarily or permanently suspend your access to the Platform in the event of a breach of these Terms of Use and/or of applicable law, or if the Service Provider has any other legitimate interest in suspending your account. 

(2) Should a temporary or permanent suspension occur, the Service Provider shall suspend Your access authorisation and notify You thereof via email.

(3) In the event of a temporary suspension, the Service Provider shall reactivate your access authorisation after the suspension period expires and notify You thereof via email. Permanently suspended access authorisation cannot be recovered. Permanently suspended individuals are permanently excluded from participation in the Platform and may not log on to the Platform again.

§16 Confidential Information and Data Protection

(1) (a) You and the Service Provider acknowledge that during the Term, Confidential Information may be disclosed to each other. For the purposes of these Terms of Use, and except as otherwise expressly provided herein, “Confidential Information” means all non-public business, technical and financial information of a party (the “Discloser”) disclosed to the other party (the “Recipient”), and all other information, which, if in writing or other permanent visual form (such as, for example, a physical prototype, physical sample, photograph, videotape, electronic file, or sound recording), is clearly marked “confidential”, or, if disclosed orally, all information that is designated orally as “confidential”, or is otherwise treated as confidential at the time of disclosure or within a reasonable period of time thereafter. 

(b) The Recipient agrees to keep confidential all Confidential Information disclosed to it by the Discloser, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). Confidential Information shall not include information which: (a) is already known to the Recipient at the time of disclosure as evidenced by written documents of its own; (b) is known publicly or is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Recipient, subsequent to disclosure by the Discloser; or (d) is received by the Recipient from a third-party who, to the best knowledge of the Recipient, had a legal right to provide it or it is otherwise lawfully known or received by the Recipient. 

(c) §16 will not be construed to prohibit the disclosure of Confidential Information if such disclosure is required by any governmental agency, administrative agency, tribunal, court or other quasi-judicial or regulatory body or is otherwise required by law or legal process; provided that, to the extent possible and legally permitted, the Recipient will give notice to the Discloser of such requirement, so that the Discloser has the opportunity to seek a protective order to prevent the disclosure of such information and the Recipient will comply with any such protective order. 

(d) The Recipient may disclose Confidential Information to its employees, contractors or agents who need to know such information in connection with the Contract; provided that such persons are bound by obligations of confidentiality to the Recipient that are at least as stringent as those set out here.

(e) Unless expressly authorized by the Discloser in writing, the Recipient shall keep all Confidential Information it receives in confidence for a period of at least three (3) years after the date of disclosure.

(f) At any time upon written request from the Discloser, the Recipient will destroy or return, at the Recipient’s option, any Confidential Information of the Discloser in the Recipient’s possession except that documentary evidence may be retained for legal purposes as evidence of what was received (which will continue to be treated as confidential beyond any expiration or termination of these Terms of Use until they have been destroyed or returned to the Discloser). This obligation to delete or destroy Confidential Information, however, shall not apply to electronic archives or backup electronic files that are not readily available, which shall continue to be treated as confidential beyond the expiration or termination of the Term until they have been destroyed or returned to the Discloser.

(2) (a) Any Personal Data entered by or on behalf of the Customer on the Platform will only be collected, stored, and processed by the Service Provider in connection with the provisions of services hereunder. In the event that this includes Personal Information of Data Subjects to whom either the General Data Protection Regulation (EU) 2016/679 (“GDPR”) or the Data Protection Act 2018/UK GDPR (“UK GDPR”) applies, then Customer shall be deemed to be the Controller and the Service Provider shall be deemed to be the Processor and the Backup Data Processing Agreement (“DPA”) found at: https://f.hubspotusercontent20.net/hubfs/8116923/DPA/BackHub-DPA_Form.pdf shall be incorporated into and form part of these Terms of Use.  As used here: Personal Data means any information relating to a Data Subject; Data Subject means an identified or identifiable individual to whom the Personal Data relates. 

§ 17 Limitation of liability

(1) To the maximum extent permitted by applicable law, in no event will the Service Provider, its parent, subsidiaries, affiliates, partners, officers, directors, employees, agents, suppliers, licensors, and/or resellers (collectively, the “Service Provider Parties”)  be liable for any indirect, incidental, special, consequential or punitive damages arising out of the use of or inability to use the Platform or the services including, without limitation, damages for loss of goodwill, computer failure or malfunction, damage to data or to Your systems, cost of procuring replacement products, loss of profit, business interruption or any and all other commercial or economic damages or losses, even if advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort (including negligence), or otherwise) on which the claim is based. To the extent permitted by applicable law, the Service Provider’s cumulative liability to You or to any other party for damages for any cause whatsoever, and regardless of the legal or equitable theory (contract, tort (including negligence), or otherwise) on which the claim is based, will be limited to no more than the fees paid by You to the Service Provider in the twelve (12) month period prior to the first claim. You are responsible for any liability arising out of the collection, retention, use and disclosure by You of Content and of any Third-party Content.  

(2) You agree, at Your own expense, to defend the Service Provider Parties in any claim, demand, action, complaint, suit or proceeding brought by any third party and to indemnify and hold the Service Provider Parties harmless from and against any settlement amounts agreed to by You and/or any losses, damages, expenses or costs (including, but not limited to, reasonable attorneys’ fees), awarded to any such third party against any of the Service Provider Parties due to or arising out of Your breach of these Terms of Use or any documents these Terms of Use incorporate by reference, the Content, the Third-party Content, Your access to or use of the Platform and/or the services hereunder, and/or Your violation of any law or the rights of any third party. 

(3) The Platform and the services are provided “as-is”.  The Service Provider makes no warranties or conditions hereunder, and expressly disclaims all warranties and conditions, express, implied or statutory, including warranties of non-infringement, merchantability and fitness for a particular purpose. Without limiting the foregoing, the Service Provider further disclaims all representations, warranties, and conditions, express, implied, or statutory, that the Platform and/or services satisfies Your requirements or will be uninterrupted, error-free or free from harmful components.

(4) Each party acknowledges that the other has agreed to the fees and entered into these Terms of Use in reliance upon the limitations and the disclaimers of warranties set out in these Terms of Use and that they form an essential basis of the bargain between the parties. 

(5) This §17 shall be given full effect even if any remedy specified in these Terms of Use, or in any documents these Terms of Use incorporate by reference, are deemed to have failed in its essential purpose and shall survive the expiration or termination of these Terms of Use for any reason.

§ 18 Final provisions

(1) Unless otherwise expressly indicated in these Terms of Use, any notice, approval, request, authorization or other communication under these Terms of Use (“Notices”) must be submitted in written form or by email. The e-mail address of the Service Provider is support@backhub.co. The postal address of the Service Provider is 333 Preston St., Suite 200, Ottawa, Ontario K1S 5N4. Contact information is subject to change. The Service Provider shall inform You of any such changes by posting the updated address on the Service Provider’s website.

(2) If any provision of these Terms of Use shall be or become invalid, the validity of the remaining provisions shall remain unaffected. The parties shall agree to replace the invalid provision with a valid provision that most closely fulfills the economic intentions of both parties.

(3)  These Terms of Use and any associated contract shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the law of Canada applicable therein, without regard to its conflicts of laws provisions. The parties hereby agree to attorn to the exclusive jurisdiction of the courts of the Province of Ontario, in the city of Ottawa, Ontario, Canada with respect to any dispute or claim arising out of or in connection with these Terms of Use. If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for its legal fees and costs associated therewith.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Use and is hereby expressly excluded.

§19 Assignment

All the terms and provisions of any contract incorporating these Terms of Use shall be binding upon and inure to the benefit of the parties to such contract and to their respective heirs, successors, permitted assigns and legal representatives. The Service Provider shall be permitted to assign such contract without notice to or consent from You. You shall have no right to assign or otherwise transfer such contract, or any of its rights or obligations hereunder, to any third party without the Service Provider’s prior written consent, to be given or withheld in the Service Provider’s sole discretion.

 

§ 20 No Third-Party Rights

The Terms of Use and any associated contract are for the sole and exclusive benefit of You and the Service Provider, and the respective successors and permitted assigns of each, and does not create any benefit in favour of any third parties, regardless of whether they have been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, this shall not affect the rights of any permitted assignee of these Terms of Use.

§ 21 Survival 

Any provisions in these Terms of Use which by their nature extend beyond termination hereunder will survive, including, but not limited to, §5, 7 (1), 7 (5), 8 (3), 10, 12 (5), 13 (except for §13 (4)), 16, 17, 18, 19, 20, 21 and 22.

§ 22 Entire Agreement


These Terms of Use, including any documents linked or attached hereto or otherwise incorporated or referenced herein, including, without limitation, any Order Forms (using the Service Provider’s prescribed Order Form), Data Protection Agreement, List of Third-Party Sub-processors, sets forth the entire agreement with respect to the subject matter hereof and supersedes any and all prior agreements, written or oral, between You and the Service Provider. There shall be no force and effect to any different terms and conditions of any related purchase order (or similar form) even if signed by the parties. A waiver by either party of any term or conditions of these Terms of Use or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.  The relationship between You and the Service Provider is that of independent contractors and neither You nor Your agents shall have any authority to bind the Service Provider in any way. The headings to the sections of these Terms of Use are used for convenience only and shall have no substantive meaning.  These Terms of Use and the terms and conditions of any contract incorporating these Terms of Use shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting any instrument or any provision or causing any instrument or provision to be drafted. 

Contact options

The Service Provider can be contacted as follows: 

E-Mail: support@backhub.co

Address:   BackHub UG (haftungsbeschränkt)

Rewind Software Inc.
333 Preston St., Suite 200, 
Ottawa, Ontario
K1S 5N4