Terms of Service (TOS)
As of 6th of September 2019
§1 Scope of application
- The following terms and conditions apply to all services of BackupMonkey UG (haftungsbeschränkt), represented by the managing director Robert Deutz, Alte Wallgasse 6, 50672 Cologne - hereinafter referred to as BACKUPMONKEY.
- BACKUPMONKEY does not accept any conflicting or deviating terms and conditions and hereby expressly objects to them.
- BACKUPMONKEY is entitled at any time to change or supplement the general terms and conditions with a reasonable period of notice.
§2 Use of Service
- The contract for the use of the services offered by BACKUPMONKEY is concluded when a representative authorised by BACKUPMONKEY accepts the registration of the customer. Acceptance shall be confirmed in writing or implied by the first act of performance. BACKUPMONKEY is entitled to refuse the conclusion of the contract without giving reasons. Insofar as BACKUPMONKEY uses third parties to perform the agreed service, they shall not become contractual partners of the customer.
- With the conclusion of the contract the client agrees with the valid terms and conditions.
- Any statements regarding our products, prices and discounts are non-binding and subject to change without notice. They do not constitute a legally binding offer on the part of BACKUPMONKEY.
§3 Description and Scope of Services
- BACKUPMONKEY offers the client a hosted software solution, allowing the client to manage one or many CMS-based websites. BACKUPMONKEY gurantees an annual average availabilty of 99%. Excluded from this are times when the computers cannot be reached via the Internet due to technical or other problems beyond BACKUPMONKEY's control (force majeure, fault of third parties, etc.). Planned or necessary maintenance work that leads to downtimes and was previously communicated as a maintenance window will be deemed available. The contractually agreed service packages and options are a further component of the service obligation
- BACKUPMONKEY reserves the right to modify or improve its services. If the scope of services is restricted, the customer has an extraordinary right of termination. If services are provided free of charge, BACKUPMONKEY is entitled to terminate them without notice and without prior notice. A claim for reduction, reimbursement or damages cannot be justified by this. A fundamental change in the legal or technical standards on the Internet allows BACKUPMONKEY to terminate the contract extraordinarily if this makes it unreasonable for BACKUPMONKEY to provide all or part of its services within the scope of the purpose of the contract.
§4 Terms of Payment
- All prices quoted by BACKUPMONKEY are exclusive of statutory value-added tax, unless otherwise indicated.
- Counterclaims of BACKUPMONKEY can only be offset by the client with undisputed or legally established claims from the concrete contractual relationship with BACKUPMONKEY.
- In order to pay your order, you can use PayPal or Credit Card. BACKUPMONKEY reserves the right to refuse to offer certain payment methods to all customers.
In order to pay your invoice by PayPal you have to login into your PayPal account, which is necessary to use this method of payment. If you do not have a PayPal account and want to use this method of payment, you have to first create a PayPal account. Then you are free to choose processing the payment either by Credit Card, by direct debit from your bank account or by direct debit from your PayPal account. To make use of the first two options, please make sure that you have unlocked these functions of your PayPal-Account.
- Credit Card (Stripe)
In order to pay your invoice by credit card, you have to enter the payment details of a valid credit card held in your own name before your trial period ends. The applicable amount will not be debited until the products ordered are dispatched but will immediately be reserved on your card. BACKUPMONKEY reserves the right to check the validity of the credit card used as well as its credit status in relation to the value of the goods ordered and whether the address data of the purchaser is correct. Depending on the result of these checks, BACKUPMONKEY may refuse providing your further services.
- All free accounts or trial periods may be cancelled by BACKUPMONKEY at anytime and without notice
- BACKUPMONKEY has the right to suspend a client’s access to it’s services and/or terminate the account immediately if the client’s credit card and/or PayPal account can not be charged.
- Claims for damages arising from impossibility of performance, breach of contract, indebtedness upon conclusion of the contract and tort are excluded both against BACKUPMONKEY and in relation to its vicarious agents and agents, unless intentional or grossly negligent action is present.
- BACKUPMONKEY is not liable for the information transmitted via its services and neither for their completeness, accuracy and timeliness, nor for the fact that they are free of rights of third parties or that the sender acts unlawfully by transmitting the information.
- BACKUPMONKEY is not liabale for the site- and backup-state information display in the BACKUPMONKEY software.
§6. Obligations of the client
- The client must immediately notify BACKUPMONKEY of any significant changes in his environment (company, address, legal form, VAT etc.).
- The client undertakes to use the software and information provided by BACKUPMONKEY within the scope of the service only for his own purposes.
- The client must take into account recognised principles of data security, in particular keep passwords secret. Furthermore, the client is entirely responsible for any and all activities that occur under his account. The client agrees to notify BACKUPMONKEY immediately of any unauthorized use of your account or any other breach of security. BACKUPMONKEY will not be liable for any loss that the client may incur as a result of someone else using his password or account, either with or without his knowledge. However, the client could be held liable for losses incurred by BACKUPMONKEY or another party due to someone else using his account or password. The client may not use anyone else’s account at any time without the permission of the account holder and BACKUPMONKEY.
§7. Warranty infringement
- Notifications of defects must be made immediately in writing and must always be documented by the customer in a meaningful manner, in particular by logging displayed error messages.
- The client must support BACKUPMONKEY to the best of his ability in the event of a possible remedy of defects, and must completely secure programs, data and data carriers against any remedy of defects. BACKUPMONKEY is therefore not liable for data and program losses.
- If the defect cannot be remedied after two attempts and after setting a grace period of four weeks, the client is entitled to terminate the contract in writing with immediate effect; the client is not entitled to any further claims for damages.
- Excluded from the warranty are in principle errors and defects caused by external influences (including unauthorized access via the Internet), operating errors, components or products of third parties, computer viruses - of whatever kind - or changes, additions or other manipulations not carried out by BACKUPMONKEY.
- BACKUPMONKEY can in principle not be held responsible for any recourse payments and damages.
§8. Storage, Secrecy and Data protection
- The client is hereby informed that BACKUPMONKEY stores his address and other relevant data in machine-readable form and processes them exclusively for the purpose of fulfilling the contract.
- As far as BACKUPMONKEY uses third parties to provide the offered services, BACKUPMONKEY is entitled to disclose the participant data, if this is necessary to secure the operation. BACKUPMONKEY guarantees that all persons who are familiar with the handling of this contract by BACKUPMONKEY know and observe the relevant data protection regulations in their respective valid version.
- Insofar as this is recognized in internationally recognized technical standards and the client does not object, information about him will be made available to third parties (directory service).
- BACKUPMONKEY expressly points out to the client that data protection for data transmissions in open networks such as the Internet cannot be comprehensively guaranteed according to the current state of the art. The client is aware that BACKUPMONKEY may at any time and from a technical point of view inspect the website stored on the web server and, under certain circumstances, other stored data of the client, even after conclusion of the contract.
§9. Place of Jurisdiction and Applicable Law
- Place of performance and jurisdiction is Cologne, Germany.
- The legal relationship between BACKUPMONKEY and the client shall be governed exclusively by German law.
§10. Final provisions
- The legal successors of BACKUPMONKEY are also bound by the obligations arising from contracts concluded on the basis of these terms and conditions.
- Should any provision of these General Terms and Conditions be invalid, the remainder of the contract shall remain valid. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come as close as possible to the economic objective pursued by the parties to the contract with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.