Terms of Service

Terms of Service of sloppy.io GmbH

These Terms of Service are provided in English for your convenience. Please note that in case of a dispute or discrepancy between the German Terms of Service and the English translation, the German version shall prevail.

§ 1 Applicability 

  1. The present terms and conditions contain the exclusively valid conditions between the sloppy.io GmbH, Aachener Str. 26, 50674 Köln (thereinafter referred to as: we or provider) and the customer (thereinafter referred to as: you or customer), as far as these are not amended by written agreements between the parties. We provide our services in the hosting field exclusively on the basis of these terms and conditions.
  2. Alterations of these terms and conditions will be communicated to you in writing, by fax or email. In case you do not object to these changes within four weeks upon receipt of the notification, the changes are considered as being accepted by you. In case of an alteration of the terms and conditions you will still be informed separately about an existing right of opposition and the legal consequences of remaining silent.

§ 2 Conclusion of the contract

The presentation of our services and products does not represent a binding offer on our part. Only ordering a service by you is a binding offer pursuant to § 145 of the German civil code (BGB). In case of accepting this offer, we will send you an order confirmation, for instance by fax or email or we provide the applied service.

§ 3 Services

  1. The provider performs services to make contents available via the internet (web hosting). The provider’s obligations to perform results emerge from the performance description of the respective product or service. Within the scope of web hosting the provider supplies the customer system resources on a physical server, a virtual server (virtual machine, VM), on a server cluster not exclusively intended for him/her, or on a determined server cluster exclusively provided for the customer, so that the customer can store content on it up to a level and according to the technical specifications corresponding to the information in the currently in force performance description, tariff overview or rather the order form that are component of the contract.
  2. On the server the contents are kept available under a subdomain chosen by the customer (subdomain.sloppy.zone) or at customer’s option over a top level domain provided by him/her to be accessed over the internet. The services of the provider when transmitting the data are limited on the data communication between the transfer point of the own data communication network to the internet run by the provider and the webspace / server supplied for the customer. An exertion of influence on the data traffic beyond the own communication network is impossible for the provider. A successful forwarding of information to or from the computer querying the contents is hence in this respect not owned. The customer has no claim that the server is being assigned to the same IP address for the whole contracting period. The provider reserves the right to change it in the event of technical or legal necessity and to assign new IP addresses to customers.
  3. The provider renders the prementioned services with a total availability of 99%. The availability is calculated on the basis of the time agreed in the contractual period for the respective calendar month less the maintenance times.
  4. The provider is entitled to adjust the hardware and software used for the performance of services to the current state of the art. To ensure the performance of a service by the provider in case of additional requirements to the contents stored by the customer on the server by such adjustments, the provider will inform the customer about these additional requirements. After receiving the notification the customer will immediately decide, if and when the additional requirements shall be met. In case the customer does not declare by four weeks at the latest before the changeover date, that he will adjust his contents on time of the changeover, meaning three labour days before the changeover date at the latest, to the additional requirements, the provider reserves the right to terminate the contractual relationship as from the changeover date.
  5. Technical support services are only content of the offerings, as far as these are quoted in the respectively valid and on the Internet available tariff overview or rather in the order form. Otherwise, a separate calculation will take place.

§ 4 Obligations of the client, indemnity

  1. The customer ensures, that the information given by him are correct and complete. He/she undertakes to inform the provider each time promptly about alterations of the given contact details as well as other data that are necessary for the performance of the contract.
  2. The customer will not store illegal, the laws, magisterial editions or the rights of third parties violating content on the provided memory space. He/she will procure that the subdomain or the internet address (top-level domain) chosen by him/her, by which the contents can be requested via the internet, also not contravenes laws, magisterial editions or violate the rights of third parties. Furthermore, the customer will make sure that programs installed by him/her, skripts or the like will not endanger the running of the technical platform and the provider’s communication network, likewise the security and integrity of other data stored on the provider’s servers.
  3. Where the transmission of a certain volume of data during an invoicing period has been agreed with the Client, the Client shall monitor this limit. Should the volume of data transferred (traffic) exceed the upper limit agreed with the Client for the respective time period the Provider shall invoice the Client for the corresponding amount for the excessive data traffic at the prices agreed therefor.
  4. Where the Client independently administers, installs or distributes the licences installed on the servers, he undertakes to only ensure correct licensing.
  5. The Client undertakes to indemnify the Provider internally against any and all third-party claims that arise from unlawful or illegal activities of the Client and against material errors in the information provided by the Client. This shall apply in particular to infringements of copyright law, trademark law, data protection law and competition law and to breaches of §4 (4) of this contract.
  6. In case of an instantly imminent or occurred breach against the foregoing obligations as well as on assertion of not clearly unfounded claims of third parties against the provider on omission of the complete or partial performance of the content stored on the server via the internet, the provider is, considering also the legitimate interests of the customer, entitled to temporarily completely or partly stop the connection of these contents to the internet with immediate effect. The provider will promptly inform the customer about this measure.
  7. In case programs, scripts or the like endanger or impair the running of the technical platform or the provider’s communication network or the security and integrity of other data stored on the provider’s servers, the provider can disable or uninstall these programs, scripts etc. To eliminate the threat or impairment, the provider is also entitled to interrupt the connection to the internet of the contents stored on the server.
  8. The customer receives a user ID and a password, that he sets up on his own behalf, to access and manage his user account and hosting resources he has reserved. The customer is obliged to change the password he has chosen on a regular basis; at least once within 3 months. The customer must not pass on his/her account credentials, to persons unauthorized to access his/her user account and hosting resources. In order to avoid security breaches, access to the user account will be locked when the customer’s password is entered incorrectly multiple times. The customer will be notified accordingly and can set a new password on his own behalf. Also, the provider reserves the right to change the customer’s user ID and password in such a case.   
  9. The contents stored by the customer on the hosting resources reserved for him/her can be copyrighted and protected in terms of data-protection law. The customer entitles the provider to make the contents stored by him/her on the server available in case of inquiries over the internet, to this end especially to reproduce and to transmit them as well as to reproduce them for the purposes of data backup. The customer will check on his/her own responsibility, if the usage of personal data by him/her meets the requirements in terms of data-protection law.
  10. The customer commits him/herself not to apply the resources supplied by the provider, for actions that cause an overuse of the provider’s service or violate legal prohibitions, offend common decency or the rights of third parties. In case the customer defies these obligations, the provider is entitled to an immediate termination of the service and to further damage claims.

§ 5 Data backup

  1. On a daily basis, the customer will create backups of all data that he/she transmits to the provider’s server. These backups are not allowed to be stored on the server itself to ensure a quick and economic recovery of the data in the event of a possible system failure. In case of a data loss, the customer will upload the databases in question, once again gratuitously to the provider’s server and recover the configurations.
  2. After the termination of the contract, the provider offers the customer within the scope of a special agreement in return for payment for the time frame of one month after termination, to make the contents stored on the memory space intended for the customer available on a volume before deletion. Eventual rights of retention of the provider remain unaffected.

§ 6 Reseller

  1. The customer is entitled to grant third parties a contractual right of use for the contents maintained for him/her. Also in this case the customer remains sole contract partner. Beyond that the customer is obligated to forward all terms that arise from the general terms and conditions as well as the performance description, to third parties and oblige him/her to keep these conditions. This also pertains to the separate obligations for domains of this general terms and conditions.
  2. The customer is fully liable to the provider even if the third party infringes contractual obligations, does not fulfil cooperation duties or other problems appear when entitling third parties of usage rights. Moreover the customer releases the provider of all demands that third parties as well as others will make to the provider.

§ 7 Prices and payment

  1. For the agreed service the customer will pay the prices stated in the service offer, the tariff overview or rather in the order form at the time of the conclusion of contract. All prices and fees do not include the applicable VAT (value added tax). The payment can be effected electively by giving a direct debit authority (SEPA direct debit mandate), paypal, credit card or by Sofortüberweisung. All fees are due for payment on receipt of the invoice.
  2. The provider is entitled to change the price list that underlies his services. The provider will inform the customer about the changes in the price list in textual form at least 14 days prior to their coming into effect. In case the customer does not agree with the change of the price list, he can cancel the contractual relationship extraordinarily at the time of its intended coming into force. The notice of termination must be given in writing. If the customer does not cancel the contractual relationship at the time of the price change coming into force, the price alteration will be considered as agreed by him/her. With the communication of the price change, the provider will make the customer especially aware of the designated meaning his behaviour.
  3. Usage-independent charges are due and payable in advance for the corresponding contract term, provided that a differing invoicing period has not been agreed with the customer. Usage-dependent charges become due and shall be paid at the end of the corresponding invoicing period. All charges shall be based upon the prices respectively agreed with the customer.
  4. The provider will thereby charge its service depending on the agreed method of payment either monthly or for several months in advance or afterwards according to the concrete usage. The amounts stated in the invoice are due immediately upon receipt without deduction. The invoice dispatch is effected by mail or email. The provider is entitled to changes of the chosen dispatch method, if especially legal, organisational or technical reasons so require. There is no legal claim for the customer on constant dispatch in the usual form of the time of the conclusion of contract.
  5. The customer shall be deemed to be in payment arrears, even without being sent a reminder notice, if he does not pay within 14 days of receipt of the invoice or of being informed that the invoice has been entered onto the web administration panel (https://admin.sloppy.io). Unless otherwise agreed, the customer’s payments shall be made by SEPA direct debit collection. The customer shall issue the Provider, unless otherwise agreed, with a mandate under the SEPA core direct debit scheme to collect all of the charges arising from the contractual relationship. The mandate shall also apply to new bank details notified by the customer. The provider shall notify the customer of the date of the corresponding direct debit collection in good time (so-called pre-notification). This notification shall be made by e-mail to the debtor at least one working day before payment is collected. The customer shall ensure that, at the time agreed for collecting the direct debit payment, there are sufficient funds in his account to cover the payment. The customer undertakes to indemnify the provider against losses arising as a result of the financial institution where the customer holds his account withholding payment for any reason.
  6. For payments made using PayPal the corresponding PayPal terms and conditions shall apply in addition to these terms and conditions. The customer authorises the provider to collect the corresponding invoice amount from his PayPal account.
  7. In the event of payment default the provider shall be entitled to demand interest amounting to 10% per annum. The customer shall on the other hand be entitled to provide evidence that no interest – or significantly lower interest costs were incurred.
  8. The provider shall enter an electronic invoice onto the web administration panel (https://admin.sloppy.io) for each payment. The customer states his agreement to this. Should the customer request that an invoice be sent by post, the Provider shall be entitled to demand an appropriate fee for each invoice sent. (7) In the event of the temporary blocking of services, the Client’s obligation to pay shall not be affected.
  9. The customer may offset claims against the provider only against undisputed or legally enforceable counterclaims. This shall not apply to the customer’s warranty claims, where these have been set off against the provider’s claims for payment.
  10. Private customers will be charged the statutory rate of value added tax applicable in their respective EU country.

§ 8 Contract period

  1. Unless otherwise contractually agreed upon, contracts are always concluded for 12 months. The contract is mutually cancellable each time by giving a six weeks’ notice effective from the 12 months. A cancellation can only be made via the web administration (https://admin.sloppy.io), in written form or via fax. If you do not cancel, the contract will extend for another 12 months.
  2. The termination for cause will remain unaffected.
  3. Furthermore, the provider is entitled to cancel the contractual relationship for cause without adherence to a time limit. Such a cause is among others present when
  • the customer is in default with a significant part of the payment.
  • the customer essentially or despite warning violates his/her obligations especially of §4.
  • the customer uses contents, that may harm the security of the server.
  • insolvency proceedings about the fortune of the customer were requested, opened or the opening was rejected for lack of assets.

§ 9 Warranty

  1. In case the provider performs the services owed under this contract deficiently, the customer is due to the valid legal warranty rights, especially he can demand supplementary performance.
  2. Provided the supplementary performance is not possible, because the service cannot be caught up or the supplementary performance fails, the customer is entitled to claim damages or replacement for his/her wasted expenditure, together with reducing the payment. If the customer cannot be asked for the continuation of the contractual relationship until the expiration of the period of notice, having regard to all the circumstances of the individual case and weighting of the mutual interests, the customer is entitled to cancel the contract for cause without adherence to the cancellation period.
  3. The provider is only liable for defects that were present on providing of the memory space to the customer, if the provider is responsible for these defects.
  4. The customer shall notify the provider immediately of any defects and assist the Provider in the event of possible defect rectification work by making every effort to assist, in particular by taking all reasonable measures in terms of ensuring data security.
  5. The provider points out that, given the current state of the art, it is not possible to create hardware and software that functions flawlessly for all combinations of applications or that can be protected against any and all forms of manipulation by third parties. The provider gives no guarantee that the hardware and software it provides will meet the requirements of the customer or that it is suitable for certain applications and furthermore that the hardware and software will function without crashing, is free of defects and free of malicious software. The sole warranty given to the customer by the provider is that at the time the hardware and software is either used or provided, it will function essentially in accordance with the manufacturer’s specification under normal operating conditions and with normal maintenance.

§ 10 Liability

  1. Irrespective of the legal basis, the provider shall only be held liable in accordance with the following provisions.
  2. The provider shall be liable in cases of intent and gross negligence in accordance with the statutory provisions.
  3. In the case of simple negligence, the provider shall only be held liable in the event of a breach of a material contractual obligation, the proper fulfillment of which constitutes a condition sine qua non and on the fulfillment of which the customer regularly relies and may rely (cardinal obligation). In such cases the provider’s liability shall be limited to the loss or damage that is foreseeable and typical for the type of contract. The provider is only liable for predictable damages, that have to be typically expected.
  4. For the loss of data and/or programs the provider is not liable if and when the damage relies on the customer refrained from conducting backups and thus ensuring, that lost data can be restored with justifiable expenditure.
  5. In the case of simple negligence, liability for all other damages shall be excluded, in particular for consequential losses, indirect losses and lost profits.
  6. The aforestated limitations shall not apply in the case of death, physical injury or damage to health or in the event of liability claims in accordance with the Product Liability Act.
  7. Where the provider’s liability is excluded or limited the same exclusions and limitations shall also apply to the provider’s employees, other staff, representatives and vicarious agents.
  8. Within the scope of application of the German Telecommunications Act (TKG) the provisions regarding liability set forth in § 44a of the Act shall remain unaffected in any case.

§ 11 Data protection and security

  1. We will exclusively use any personal data provided by you (title, name, company, address, email address, telephone number, telefax number, bank details, credit card number) according to the provisions of the German data protection law.
  2. Your personal data, insofar as these are necessary for the rationale, content arrangement or the alteration of the contractual relationship (inventory data), will only be used to process the contracts concluded among us, for instance for the sending of services to the address indicated by you.
  3. Your personal data that are necessary to allow the utilisation of our services and to bill (usage data), will initially also exclusively be used to process the contracts concluded among us. Such usage data are especially the features to your identification as user, details on the beginning and the end as well as about the extent of the respective usage and details about the telemedia utilised by you as the user.

§ 12 Copyright, proprietary rights, licensing agreements

  1. The provider grants the customer the non-exclusive (simple) right to use the provider’s software, third party software as well as the software’s configuration, limited to the term of the contract.
  2. Transferring the right to use the software, other than with the agreement of the provider for the purpose of contract transfer, or granting sub-licences for the software to third parties is not permitted. Continued use of the software following termination of the contract term is not permitted. The customer shall delete any copies of all software provided following termination of the contract term.
  3. For open source programs the respective currently applicable license agreements of the software provider shall apply in addition. The provider shall make these license agreements available to the customer upon request. Where the terms and conditions of the software provider contradict these terms and conditions the terms and conditions of the software provider shall take precedence.
  4. Furthermore, the license agreements of the respective software manufacturer and, where appropriate, the manufacturer’s or software-specific additional terms and conditions of the Provider shall also apply.

§ 13 Termination and Access

At our discretion, the provider reserves the right to cancel or limit your access to our service any time, with or without notice with immediate effect. This includes without limitation a violation of these Terms of Service, any law or any misusage of the provider’s system resources for example by consuming excessive network capacity, disk IO or CPU cycles. When that occurs the information linked to the customer’s account may be lost or destroyed. The provider will only priorly inform the customer about our intention to terminate your access to our services, if such notification is not in our discretion contrary to these Terms of Service. Any fees paid hereunder will not be refunded and any fees owed to the provider before a termination, are due immediately including any other liabilities that may incurred prior to termination. In case of a termination any rights granted to the customer by these Terms of Service will be ended with immediate effect and the customer shall stop the usage of the service instantly. The customer can cancel his/her account within the service. All agreements of these Terms of Service shall remain in force after a termination, including licenses of User Content, ownership provisions, warranty disclaimers, limitations of liability and indemnity.

§ 14 Change of terms

Unless otherwise particularly arranged, the provider is entitled to change or to amend these terms of service as follows. The provider will announce these changes or additions to the customer in textual form at least 14 days prior to their coming into force. In case the customer does not agree with the changes or additions of the contract terms, he can object against the changes at a term of one week at the time of the changes and additions intended of coming into force. The objection must be given in writing. If the customer not objects, the changes and additions will be considered as agreed by him/her. With the communication of the changes and additions of the contract terms, the provider will make the customer especially aware of the designated meaning his behaviour.

§ 15 Final provisions

  1. The assignment of accounts receivable is only permitted with prior written approval of the other contracting party. The approval must not be unreasonably withheld.
  2. A right of retention can only be exercised because of counterclaims resulting from the respective contractual relationship.
  3. The contracting parties can only offset with claims, which have been determined without further legal recourse, undisputed or claimed from the respective contractual relationship.
  4. All changes, additions and cancellations of contractual agreements must be given in writing, as well as the repeal of the requirement of written form, if this contract allows for the textual form.
  5. If individual terms of the parties’ agreements will be void in whole or in part, the effectivity of the left terms will hereby not be affected. The parties bind themselves for this case to replace the invalid terms by an effective one that is preferably close to the economic purpose of the invalid term. This extends to eventual gaps of the terms.
  6. The law of the Federal Republic of Germany applies excluding the UN sales law. For consumers this choice of law only applies if and when the provided cover is not revoked by mandatory provisions of the state’s right, in which the consumer is ordinarily resident.
  7. Venue in the business traffic with merchants, corporate bodies under public law or public separate estate for all legal disputes related to the concluded contract is Cologne. In this case a judicial procedure can be carried out to choice of the provider at the customer’s place of business.

 

April 11, 2016 | © sloppy.io GmbH