TERMS AND CONDITIONS OF SERVICE
1.1. These terms and conditions of service and the individual purchase order accepted by Njinn (hereinafter together the “Agreement”) set out the rights and obligations between the Njinn user (hereinafter “User”) and Njinn Technologies GmbH (hereinafter “Njinn”) in connection with the use of the online services and software offered by Njinn through its website https://www.njinn.io (hereinafter together “Product”).
1.2. The User understands that the Product is still under development and testing. Therefore, the Product may contain defects and its continuous availability is not insured. THE NJINN USER IS ADVISED AT ALL TIMES TO SAFEGUARD DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE PRODUCT AND/OR ACCOMPANYING MATERIALS.
1.3. General and other terms and conditions of the User only apply if and insofar as their validity is expressly recognized in writing by Njinn.
1.4. The Product is directed exclusively to Users who are entrepreneurs within the meaning of § 1 para 2 KschG (Austrian Consumer Protection Act [Konsumentenschutzgesetz]). By accepting these terms, the User confirms and warrants that he/she is an entrepreneur within the meaning of § 1 para 2 KschG or acts on behalf of such entrepreneur. Njinn reserves the right to request proof of entrepreneurial status at any time.
1.5. Unless otherwise agreed, a legally binding and enforceable contract shall take effect only upon successful completion of the registration process. The registration process shall only be successfully completed when Njinn has informed the User of such via e-mail. The User does not have a claim to enter into a contract. Njinn reserves the right to refuse an offer by the User to enter into a contract with them in its sole discretion.
2. The Product
2.1. The Product provided by Njinn consists of the Online Service and the Worker Software defined as follows:
2.1.1. The Online Service allows the Users to define IT processes for the purpose of automation. This definition and all data which the User has uploaded are stored by Njinn. Processes can be initiated manually by the User, time-based, or by third-party services via Njinn’s API.
2.1.2. The Worker Software may be installed by the User on the User’s machines or may be operated by Njinn on Njinn’s infrastructure. The Worker Software allows the execution of individual automation process steps, as determined by the processes defined the User using the Online Service. Once the Worker Software is installed on a User’s machine, the Product’s Njinn code can be executed on that machine, always provided an internet connection exists. The Worker Service can only be used in conjunction with the Online Service.
2.2. The Product offered globally and exclusively in the English language.
2.4. The Online Service is cloud-based, and Njinn uses the following subcontractor’s to perform the Online Services: Hetzner Online GmbH, Germany.
2.5. Njinn offers various editions of the Product and it remains in Njinn’s sole discretion to alter or amend, update or discontinue offering any edition of the Product. Current specifications for these editions can be found under https://www.njinn.io.
2.6. The individual purchase order as submitted by the User and accepted by Njinn (hereinafter the “Purchase Order”) shall specify the date of the Purchase Order, the edition of the Product ordered, as well as the length of the subscription term and the subscription fees owed thereunder, the Service Level Agreement and such other terms as are agreed.
2.7. Njinn reserves the right to suspend, extend, change, complement, or improve the Product, in particular where such measures are necessary to drive the development of the Product and improve the technological standard of the Product or are deemed necessary or reasonable for preventing abuse or enhancing IT security. The User acknowledges that such modifications may lead to changes in the appearance and functioning of the Product and waives any rights derived from such changed offerings.
2.8. The User may not adapt, amend or change the Product in any technical way without written permission of Njinn. Any warranty or liability of Njinn is excluded if the Product is processed, used, modified or amended by the User contrary to the agreed use or used not according to the manual or if the required cooperation to remedy a defect is denied by the User. If Njinn combines software provided by User or third parties with its Products or provides such software together with its Products, Njinn assumes no warranty, guarantee or liability with regard to such software to the maximum extent permitted by applicable law.
3. Exclusion of Warranties and Liability
3.1. The User acknowledges that the Product is not at the level of performance or compatibility of a final offering. Njinn only warrants that the Product does not contain any malicious code inserted to affect the functioning of the Product or any computer/machine that the Product runs on.
3.2. EXCEPT AS SET FORTH IN SECTION 3.1. ABOVE THE PRODUCT IS PROVIDED “AS IS,” AND THERE ARE NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. NJINN DOES NOT WARRANT THAT THE PRODUCT OR ANY OF ITS PARTS WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION, WILL BE COMPATIBLE WITH ANY SOFTWARE OR HARDWARE USED IN COMBINATION, WILL BE SUFFICIENT FOR ALL NEEDS OF THE USER, OR THAT ALL AND EVERY SOFTWARE BUG CAN BE REPAIRED.
3.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ANY LIABILITY BY NJINN FOR DAMAGES CAUSED BY THE INSTALLATION OR USE OF THE PRODUCT IS EXCLUDED. TO THE EXTENT A COMPLETE EXCLUSION OF LIABILITY IS NOT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF NJINN SHALL BE LIMITED TO ACTUAL AND DIRECT DAMAGES SUFFERED AND PROVEN BY THE USER, THEREFORE EXCLUDING ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES TO THE USER’S SYSTEM, LOSS OF DATA, DATA BEING RENDERED INACCURATE, BUSINESS INTERRUPTION OR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT. IN ANY EVENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF NJINN EXCEED THE AMOUNT PAID TO NJINN BY THE USER.
3.4. To the extent any warranty applies, the warranty period is limited to three (3) months after delivery, i.e. after the User’s first installation of any Njinn Worker Software on its machine(s). All claims must be directed to Njinn in writing within the warranty period, accompanied by an exact written description of the defects. Hidden defects must be notified to Njinn immediately after detection. Proof of the fact that the defect was hidden lies with the User
3.5. To the extent any warranty applies, the User’s sole and exclusive claim shall consist in a request for remedy of the defect [Verbesserung] by way of Njinn using its best efforts to remedy the bugs or malfunction of the Product. Any further warranty claims such as price reduction or rescission from the contract are excluded
4. User’s Rights and Obligations
4.1. The User is granted a non-exclusive, non-transferable, non-sublicensable right to use and access the Online Service and use the Product. In as far as the Product is provided free of charge, this License is revocable at any time. To the extent the Product is provided under a subscription fee, the term of the license shall be the subscription term as defined in the individual Purchase Order. After expiry of the subscription term, all license rights granted hereunder automatically cease.
4.2. Njinn will make the Worker Software available for download by the User. The use of the Worker Software is limited to use together with or as defined by the User in the course of the Online Service and the User may not use the Worker Software for any other purpose and only for the subscription term as defined in the Purchase Order. The Worker Software may not be modified or altered in anyway except by Njinn. The User shall utilize the most current version of the Worker Software made available by Njinn.
4.3. Unless explicitly agreed in writing between Njinn and the User, the User may not copy, reproduce or distribute the Product or any part of it for any purpose
4.4. The User shall not reverse assemble, reverse compile, or reverse engineer the Product, in whole or in part or otherwise try to derive the source code of the Product.
4.5. The User shall not use the Product for any competitive analysis purposes whatsoever unless specifically authorized in writing to do so by Njinn. Furthermore, the User agrees that it will not itself, or through any third party: (i) sell, lease, license, sublicense or otherwise transfer or distribute the Product, in whole or in part, (ii) pledge, encumber or otherwise grant a security interest in the rights of User hereunder, (iii) use the Product to services to third parties, or otherwise use the Product on a service bureau basis, and/or (iv) provide, disclose, divulge or make available to or permit use of the Product by any third party without Njinn´s prior written consent.
4.6. Unless otherwise noted, all software and documentation which are part of the Product are copyright of Njinn or its licensors and are under the protection of national and international copyright laws and protected by patent and design laws. The Agreement transfers to the User neither title nor interest in any proprietary or intellectual property right in the Product or any copyrights, patents, designs (whether registered, pending or not), trade names or trademarks embodied or used in connection therewith, except for the rights explicitly granted herein. The User shall take all steps necessary to protect Njinn’s proprietary rights in the Product.
4.7. The User bears the sole responsibility for the saving and securing of their data ie. defined processes. The Users should regularly create backups of all their data in order to avoid damages due to data loss. DUE TO THE FACT THAT THE PRODUCT IS STILL UNDER DEVELOPMENT AND TESTING NJINN CANNOT GUARANTEE IN ANY WAY THE SAFEGUARD OF DATA.
4.8. The User shall establish appropriate security standards for the User’s access to, and use of, the Products and shall ensure that unauthorised access to, or use of, the Products prevented. For this purpose, the User shall, to the extent necessary, inform its employees and affiliated companies of compliance with copyright law. In the event of such access or use, it shall notify Njinn immediately.
4.9. The User is obliged to check its data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs for this purpose.
4.10. The User undertakes not to import, store, distribute or transmit, in the course of its use of the Product, any content the provision, publication or use of which violates any applicable law or agreements with third parties. Furthermore the User undertakes not to use the Product in any way that would violate applicable law. In the event of a breach of this obligation Njinn shall be entitled to block the User’s access to such content and/or remove such content which Njinn considers to be inappropriate content. The right to terminate the Agreement for good cause remains unaffected.
4.11. The User shall indemnify hold harmless Njinn against all loss, damages, costs and other expenses including any and all third-party claims, actions, proceedings, and suits brought against Njinn or any of its officers, directors, employees, agents or affiliates, and all related liabilities such as settlements, penalties, fines, and expenses incurred in this context (including, reasonable attorneys’ fees and other litigation expenses) resulting from (i) the User’s breach of the Agreement unless the User can prove that he is not responsible for such breach; (ii) the User’s use of the Product; (iii) the User’s violations of applicable laws, rules or regulations in connection the User’s use of the Product; (iv) any claims made by or on behalf of any third party pertaining directly or indirectly to the User’s use of the Product; and (v) violations of the User’s obligations of privacy or applicable data protection law to any third party. Njinn will provide the User with written notice of any claim, suit or action from which the User must indemnify Njinn. The User will cooperate as fully as reasonably required in the defense of any claim at is own expense. Njinn reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by the User
4.12. Unless otherwise agreed expressly in writing, Njinn may, in its sole discretion, but is not obligated to, return or destroy any non-personal data entered by the User in the course of its use of the Product.
5.1. In as far as the Product is provided free of charge, the User shall not be entitled to receive support. Requests for support may nonetheless be made by email through firstname.lastname@example.org and Njinn may, in its sole discretion, decide to respond to such issues.
5.2. If the Product is provided on a subscription fee basis, the User shall be entitled to receive Support upon request. Requests shall be made through the Njinn Support Portal and shall describe the bug or malfunction of the Product as precise as possible. Njinn will provide a first feedback response to any request in the course of a Support request within five (5) working days in Austria. Njinn will use its best efforts, but does not warrant that the bug or malfunction will be remedied within the timeframe for the first feedback response or at a later point. Support may be refused by Njinn in case the Worker Software has not at all times been properly installed and used or if the User has undertaken any modification, alteration or addition.
5.3. Njinn may update the terms of support services at regular intervals and will notify the User of such changes by email or other appropriate means, at its own discretion.
6. Service Disruption
6.1. Njinn endeavors to ensure the best possible availability of the Product. The User acknowledges however, that due to the fact the Product is still under development and other technical reasons as well as due to Njinn’s dependence on external factors, (e.g. unavailability of telecommunications networks, electricity outages, hardware and/or software failure etc), the availability of the Online Service cannot be guaranteed. The User can therefore not assert a claim for continual access to the Product. Access restrictions of a temporary nature shall not constitute grounds for warranty claims nor a right to extraordinary termination beyond Section 6.3.
6.2. In as far as the Product is provided free of charge, the User only has a claim to the use of the services within the framework of the actual availability provided.
6.3. If the Product is provided on a subscription fee basis, the User shall have the right to terminate the Agreement in the event the Online Service uptime falls below 80%
- For two (2) consecutive calendar months; or
- For five (5) calendar months during a twelve (12) calendar month period,
by giving Njinn written notice within a period of thirty (30) days after such occurrence. The Users termination will become effective on the last day of the calendar month in which Njinn has received the Users notice. Consequences of Termination shall be governed by Section 10. SUCH RIGHT TO TERMINATE SHALL BE THE USERS SOLE AND EXCLUSIVE REMEDY IN THIS EVENT.
7. User’s ID and Contact Information
7.1. The User confirms that all the personal data provided by it is true and complete. Njinn reserves the right to request appropriate proof of identity on a case by case basis
7.2. The User is obliged to keep their personal contact information up to date at all times.
7.3. The User is required to maintain strict confidentiality regarding all login data, identification, and passwords in order to prevent third parties from accessing their login data. In the event that the User has reason to believe or suspects that third parties have obtained or may have obtained unauthorized login data, identification, or passwords, they shall inform Njinn immediately and change their login data.
8. Payment Terms
8.1. If the Product is provided on a subscription fee basis, all fees are due in advance for a complete Subscription Period. The subscription fees are non-refundable.
8.2. All amounts payable hereunder by the User shall be payable in Euro currency without deductions for taxes, assessments, fees or charges of any kind. The User shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Product hereunder and (ii) insurance and installation charges.
8.3. Njinn and the User agree that a late payment of the User by over four (4) weeks shall be deemed a material breach of the User incapable of remedy under Clause 9.3.4, entitling Njinn to terminate the Agreement between Njinn and the User for good cause with immediate effect.
8.4. Further payment terms may be set out in the individual Purchase Order.
9. Subscription Term and Termination
9.1. The User’s subscription term commences on the effective date specified in the User’s Purchase Order, but in no event later than the date the User accepts the Purchase Order and is given access to the Online Service.
9.2. If the Product is provided by Njinn free of charge, Njinn may terminate the Agreement and discontinue offering the Product at any time without prior notice. Termination shall be effective through a notice by Njinn whereas communication via Email to User’s last indicated Email address shall be sufficient.
9.3. If the Product is provided on a subscription fee basis to following shall apply:
9.3.1. Unless otherwise agreed in the respective individual Purchase Order and subject to the rights to terminate under Clause 9.3.4 THE SUBSCRIPTION TERM AUTOMATICALLY EXTENDS FOR SUCCESSIVE PERIODS SET OUT IN THE RESPECTIVE INDIVIDUAL PURCHASE ORDER UNLESS A PARTY GIVES 30 DAYS’ PRIOR WRITTEN NOTICE TO THE OTHER PARTY OF ITS INTENTION NOT TO EXTEND THE SUBSCRIPTION TERM.
9.3.2. Njinn shall have the right to terminate the Agreement for convenience at any time by giving three (3) months’ written notice to the User, whereas communication via Email to User’s last indicated Email address shall be sufficient.
9.3.3. The User shall have the right to terminate the Agreement for convenience at any time by giving three (3) months’ written notice to Njinn. No termination for convenience is available to the User during the first six (6) months of the subscription term. Any termination by the User must be communicated to email@example.com.
9.3.4. Each Party may terminate the Agreement for good cause with immediate effect by giving written notice to the other Party:
- If either Party commits a material breach of the Agreement and such breach is not capable of remedy.
- If either Party commits a material breach of the Agreement and such breach, if capable of remedy, is not remedied within thirty (30) days of notice served by the other Party requiring such remedy.
10 Consequences of Termination
10.1. Upon termination of the Agreement, all rights of the User to use the Product shall forthwith terminate and the User shall return to Njinn or delete the Worker Software from its computer systems. Any rights of retention are excluded. Furthermore, the right of the User to use Confidential Information as granted shall immediately terminate.
10.2. All of User’s data and content may be deleted by Njinn from Njinn’s systems after termination of the Agreement. Deleted content cannot be recovered once the Agreement is terminated. Njinn is not liable for any loss or damage following, or as a result of, the termination of the Agreement, and it is User’s responsibility to ensure that any data is backed-up or replicated before termination.
11. Amendments to the Agreement and changes to the Subscription Fees
Njinn shall be entitled to amend the Agreement or change the subscription fees by unilateral notice with proactive effect, observing three months’ notice. If the Product is provided on a subscription fee basis, the User shall have the right to withdraw from the Agreement by unilateral notice, observing one month notice with effect to the effective date of the proposed amendment. Where the User does not exercise this right, the amendment shall become effective.
12.1. The User acknowledges and agrees that the Product may constitute and may contain valuable proprietary products and trade secrets of Njinn, embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, the User agrees to treat the Product as confidential in accordance with the confidentiality requirements and conditions set forth below. The User shall not, without the prior written consent of Njinn, disclose the Confidential Information in whole or in part, or make any aspect of the Confidential Information available to any person or entity, other than to the User’s own employees on a need to know basis solely for the purpose of using the Product under the Agreement; provided, however that each such employee agrees prior to the disclosure of any part of the Confidential Information to be bound by the terms hereof. The User agrees to be responsible for any breach of the Agreement by any of its employees and the User agrees to indemnify and hold Njinn harmless against any loss or damage which Njinn may suffer or incur as a result thereof.
12.2. As used herein, “Confidential Information” shall mean all information (in any form whatsoever) received by the User from Njinn that is either designated as being confidential or proprietary or is confidential and proprietary in nature, including, but not limited to, the Worker Software, any documentation related thereto, plans, research, development, trade secrets, information relating to any client, member, the User, supplier, or affiliate, pricing information, financial information, marketing information, information relating to Njinn’s software or hardware products which may include source code, data files, documentation, specifications, databases, algorithms, networks, architecture and system design, file layouts, tool combinations and development methods. “Confidential Information” does not include any information that the User can prove: (i) was already known to the User or its officers, directors, employees and agents, free of any obligation to keep it confidential; (ii) was or becomes publicly known through no wrongful act of the User or its officers, directors, employees and agents; (iii) was received by the User from a third party without any restriction on confidentiality; (iv) was independently developed by the User or its officers, directors, employees and agents as demonstrated by prior existing documentation; (v) was disclosed to third parties by Njinn without any obligation of confidentiality; (vi) was approved for release by prior written authorization of Njinn, or (vii) must be disclosed in order to comply with applicable law, including any requirement imposed by judicial or administrative process, provided that the User shall give Njinn prompt prior notice before making such disclosure and cooperate with Njinn in all reasonable respects to obtain a protective order and/or minimize any such disclosure.
12.3. The User hereby agrees to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of Njinn’s Confidential Information and to prevent any unauthorized copying, use, distribution, installation or transfer of possession of such information. The User agrees to maintain at least the same procedures regarding Confidential Information that it maintains with respect to its own Confidential Information, but in no event less than a reasonable standard of care. Without limiting the generality of the foregoing, the User shall not permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any material provided by Njinn and the User shall not permit its personnel to reproduce or copy any such material except as expressly authorized hereunder.
12.4. The User acknowledges that the unauthorized use, transfer or disclosure of Njinn’s Confidential Information thereof will (i) substantially diminish the value to Njinn of the trade secrets and other proprietary interests that are the subject of the Agreement; (ii) render Njinn’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (iii) cause immediate and irreparable injury and harm. If the User breaches any of its obligations with respect to the use or confidentiality of the Product, Njinn shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief, without the necessity for Njinn to make an additional showing of irreparable injury and harm.
The User hereby agrees that Njinn shall have the right to advertise or publish, at its sole discretion and in whatever form or media, the fact the User has entered into the Agreement with Njinn and/or is using the Product. Such right to publication shall include the right to use the User’s company name, trade names, logos and/or trademarks.
The User may at its own risk and expense provide Njinn with reasonable information and feedback (including, without limitation, questions, comments, suggestions, or the like) regarding the performance, features, functionality and the User’s overall experience using the Product (hereinafter “Feedback”). The User shall not provide any such Feedback to any third party without Njinn’s prior written consent in each instance. The User hereby grants to Njinn an exclusive, royalty-free, irrevocable, perpetual worldwide right and license to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute any such Feedback without limitation. Further, Njinn will be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including, without limitation, developing, making, marketing, distributing and selling products and services incorporating such Feedback. Njinn will have no obligation to consider, use, return or preserve any Feedback Njinn provides. Any Feedback the User provides may or may not be treated confidentially by us, and Njinn will have no obligation or liability to the User for the use or disclosure of any Feedback.
15. Data Use and Protection
16. Other Regulations
16.1. No modification of or amendments to the Agreement or any supplementary Agreement shall be valid unless made in writing. The same shall apply to any waiver of this written form requirement.
16.2. In the event that any provision of the Agreement shall be invalid or unenforceable, the validity of the remaining provisions of the Agreement shall not be affected. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to fulfilling the economic purpose of the invalid or unenforceable provision. The same shall apply in the event that the Parties subsequently discover that the Agreements that they concluded contain an omission.
16.3. Njinn has the right to use subcontractors to perform its obligations and provide the Product.
16.4. Sections 3., 10., 12, 13., and 14. shall survive the termination of the Agreement, regardless of the cause for termination.
16.5. The User may not transfer or assign to any third party by any means whatsoever whether or not for financial reward, this Agreement or the rights or obligations deriving out of it, without the explicit written consent of Njinn. Any attempt to so assign in contravention of the Agreement shall be void.
16.6. Njinn may assign the Agreement to an affiliate of such party or to any successor corporation or entity (whether by purchase of all or substantially all of the such party’s assets or outstanding capital stock, by merger or consolidation or otherwise). The Agreement will be binding upon and inure to the benefit of any successors or rightful assigns of the parties.
16.7. The Agreement shall be governed and interpreted by the laws of Austria (excluding its conflict of laws principles and excluding the law known as the United Nations Convention for the International Sale of Goods).
16.8. All disputes or claims arising out of or in connection with the Agreement, including disputes relating to its validity, breach, termination or nullity, shall be finally settled by the competent court for 1010, Vienna, Austria
Last Updated on 25.11.2020