General terms and conditions (GTC)

§1 Applicability

(1) These Terms & Conditions are part of the contract and claim exclusive validity. Terms and conditions which conflict with or deviate from those of the provider are not recognised by the provider unless the provider has explicitly agreed to their applicability..

(2) These Terms & Conditions only apply to business clients within the meaning of § 14 BGB.

(3) By registering with the provider, the user is made aware of the Terms & Conditions and will confirm the validity of the Terms & Conditions. They thus comprehensively apply to the use of the contractual online solution (Tortuga Website Monitor).

§2 Subject of the Contract

(1) These Terms & Conditions govern the user’s temporary use of the Tortuga Website Monitor in the version at the time of the conclusion of the contract. The Tortuga Website Monitor supports users in monitoring their websites, analyzing manipulations of their websites and their reputation. The details of the agreed scope of services can be found in the description of the service packages.

(2) Unless otherwise agreed, the Tortuga Website Monitor includes the Reputation Monitoring and Security Monitoring modules, as well as an administrative backend. The details can be found in the respective service description. The Reputation Monitoring module monitors the website and its associated services, with the goal of detecting anomalies. As part of the Security Monitoring module, the code of the user’s website is automatically analyzed for vulnerabilities and compromising.

(3) The Tortuga Website Monitor is provided by the provider as a browser-based online solution. The user can use the executable tools, which is stored on the provider’s servers or those of a third party commissioned by the provider, via internet connection for the duration of the contract.

(4) The paid accounts of Tortuga Website Monitor can only be purchased by businesses customers within the meaning of § 14 BGB (German Civil Code).

§3 Conclusion of Contract, Duration of Contract, Change of Tariff

(1) The contract is concluded when the user registers after filling out the corresponding booking form. In doing so, the user can, through clearly visible links, take note of

– these Terms & Conditions and

– the Privacy Policy

and, if applicable, will subsequently receive the provider’s acceptance of the contractual offer made in this way by e-mail.

(2) Unless the free tariff has been selected, the contract shall initially run for one month respectively one year from the conclusion of the contract and may be terminated by either party at any time to become effective at the end of the contract. Thereafter, the contract shall be extended in increments of one month respectively one year, unless terminated by either of the parties. If the free tariff was selected, the contract can be terminated at any time. Both parties‘ right to terminate for cause remains unaffected.

(3) The user can switch to a higher tariff at any time. Monthly fees already paid will then either be credited to the user’s account or offset against the next bill for the new rate.

(4) The user may change to a lower tariff at the end of the contractual term of the current tariff. With the change of tariff, the user is no longer entitled to data and services that would only be available in a higher tariff.

(5) The user is not entitled to reasonable, effective and accessible technical means to correct input errors in the order, the provision of the statutory information in electronic commerce pursuant to § 312 i para. 1 no. 2 BGB and an immediate confirmation of receipt of the order. Insofar as such means or information are provided, this is done without recognition of any legal obligation.

§4 Payment

(1) The fee for the individual tariffs is specified on the product page under Price agreements between the customer and Tortuga Webspace Security GmbH that differs from that prices must always be agreed upon in written form.

(2) This and all other prices of the provider are in euros and are net prices plus VAT, if applicable.

(3) Payment of the ongoing remuneration shall be made by the agreed payment method.

(4) If the user is in default of payment, the user shall be obliged to pay default interest and the lump-sum damages regulated in § 288 BGB.

(5) If the user is in default with the payment, the provider may refuse the services by temporarily blocking the user’s access to the online solution. In that case, the user still has to pay the agreed fees despite the access being blocked. If the statutory requirements of § 543 BGB are met, the provider may also immediately terminate the contract for default of payment.

(6) The provider may exercise a right of retention in respect of all claims arising from the business relationship with the user.

§5 Availability of the online solution, Force Majeure

(1) The provider has to permanently provide the online solution to the user at the router exit of the data centre, where the server with the online solution is located (“transfer point“), for the user to use. The provider’s services include the online solution in its current version, the computing capacity required for its use and the necessary storage capacity on a server accessible through the internet plus dial-up logistics for the user. The provider does not owe the data link between the user’s IT systems and the transfer point as defined above.

(2) The provider may temporarily limit or block altogether the use of the page, in particular for maintenance and improvement as well as for other reasons required by the provider’s or the online solution’s operation. If possible, the provider will consider the reasonable interests of the user (for example in determining maintenance times). In the case of immediate malfunctions, the provider may also address malfunctions during regular business hours.

(3) The user shall report lack of functionability or malfunctions to the provider as soon and as detailed as possible.

(4) If the provider is unable to provide the services due to force majeure, the provider’s obligation to provide the services will rest for as long as the impediment to the performance lasts.

(5) If the impediment to the performance lasts for more than one week, the user may terminate the contract immediately if the performance of the contract won’t be of further interest to the user due to the hindrance.

§6Provision of Services, Support

(1) The user may receive help for using the Tortuga Website Monitor from the provider (support). The first stop are the FAQ at [Link] and the help feature at [Link]. The user may also contact the provider by phone and in writing if the user has questions about the use and the features of the Tortuga Website Monitor that are not answered by the FAQ and the help feature.

(2) The user is only entitled to support services currently offered by the provider.

(3) The provider may make the provision of support dependant on the customer’s authentication.

§7 Updates

(1) The provider will keep developing the Tortuga Website Monitor and its services further. Improvements and updates of the Tortuga Website Monitor in line with the current features and in compliance with changed legal and technological requirements will be provided to the user automatically and voluntarily as part of the contract.

(2) The user is not entitled to certain improvements (unless the online solution is or becomes defective) or a certain timeline of measures.

(3) In particular, the user is not entitled to further development of additional features; the provider may make their use dependant on amending the contract, in particular amending the agreed fees.

§8 Illegal Use

(1) Unless explicitly agreed, the user is not allowed to pass on, sublease, sublicense or otherwise resell the accounts of the Tortuga Website Monitor.

§9 User’s Obligations, Cooperation

(1) The user is obliged to use the online solution provided by Tortuga Webspace Security GmbH im compliance with these T&C and the applicable legal regulations. The provider is entitled to block or terminate the customer’s account in case of serious violations of the aforementioned terms and regulations.

(2) The user has to provide full and true information that is required for the contract. The obligation to provide true information relates in particular to the company name, first and last name, full address as well as contact and bank information. If the user provides false information, the provider may immediately terminate the contract for cause.

(3) The user must keep the information up to date and inform the provider of any changes without delay.

(4) The user will receive the access data to the Tortuga Website Monitor from the provider. The access data serves the purpose of ruling out that unauthorised people use the hosted online solution. The access data are to be protected against unauthorised access by third parties and have to be changed from time to time for security purposes. The user may only digitally store the user ID and the passwords in encrypted form.

(5) If the access data are entered incorrectly repeatedly, access may be blocked for the protection of the user. If the blocking is the user’s fault, the user is liable for the expenses incurred by granting renewed access and for the provider’s expenses, based on the contractually agreed or locally typical and reasonable fees.

(6) The user has to inform the provider without delay as soon as the user gains knowledge of third parties having access to the user’s access data or if they have otherwise gained access to the user profile. If the user fails to notify the provider without delay, the user must compensate the provider for resulting losses.

(7) All content that the customer will gain access to via the Tortuga Website Monitor is only intended for his own use and solely for the according purpose.

(8) The user is obliged not to manage any content via his account that violates the applicable law, criminal law, copyright or competition law. That also includes content that violates third parties rights such as trademark law, the name rights and other personality rights.

§10 Warranty

(1) The provider extends a warranty for the online solution based on the applicable statutory provisions, unless stated otherwise herein. The provider only extends a warranty within the framework of the characteristics of the online solution offered and described by the provider. The provider does not extend any warranty for the online solution complying with the user’s interests or operational peculiarities, unless the provider is at fault for a wrong consultation or otherwise.

(2) The provider’s potential strict liability pursuant to § 536a BGB is waived. The provider is only liable for initial defects if the provider knew or should have known of the defect and failed to inform the user accordingly.

(3) The user has no claims for defects if the online solution is not working properly because the user is not using it under the agreed conditions of use or within a system that has not been agreed upon or otherwise in violation of § 8 of this contract or if the user has negatively altered the online solution himself or through third parties.

(4) The user has to report potential defects in detail and in a comprehensible way. The user must in particular detail the steps that led to the defect, the way the defect materialises as well as the defect’s effects.

(5) If the user reports a defect despite being responsible for the malfunction, the provider may charge the fees for the support provided based on the provider’s consultation fees at the time to the user, in the absence of such set fees they will be based on the typical and reasonable fees for such support services.

(6) The remedy will be carried out during the provider’s business hours by improving the online solution free of charge. The provider may do this within a reasonable time frame.

(7) The user has to support the provider in the course of the remedy, insofar as reasonable.

(8) Claims of the user due to material defects and/or defects of title shall expire one year from the claim arising. This shall not apply if the provider has acted with intent or gross negligence or if the defect caused injury to life, body, freedom or health of the user.

§11 Liability

(1) The provider is liable without limitation for premeditated or grossly negligent acts as well as culpable injury to life, limb or health or violations of the Product Liability Act or in the case of a promised feature, whatever the legal basis.

(2) The provider is not liable for slightly negligent breaches of non-essential contractual obligations. In the case of a breach of non-essential contractual obligations, the provider’s liability is limited to the typical losses foreseeable at the time of the conclusion of the contract. Essential contractual obligations are such obligations that protect legal positions of the user which are essential to the contract, which the contract has to guarantee to the user according to the content and purpose of the contract, as well as obligations, the performance of which is necessary for the proper performance of the contract to be possible and of which the user could usually rely on them being fulfilled.

(3) Any further liability of the provider, whatever the legal basis, is excluded. This limitation of liability also extends to the employees of the provider as well as to its vicarious agents and subcontractors. These rules do not lead to a reversal of the burden of proof.

(4) User content published on the provider’s website I not checked by the provider for being legal, correct and complete, nor does it represent the provider’s opinion. The provider is not responsible for offers and content of others.

§12 Provider’s Copyright, Licenses, Right to Content

(1) For the term of the contract, the provider grants the user the non-exclusive, non-transferable and non-sublicensable right to use the contractual online solution.

(2) Unless permitted by law, the user is not allowed to

– to imitate the online solution,

– to copy the online solution, it’s provided data or the documentation, unless it is necessary for the contractual lease use.

If the copyright remains with Tortuga Webspace Security GmbH and it is clearly shown on the corresponding documents that they originate from Tortuga Website Monitor, statistical graphs and screen shots of a customer account are excluded. If these documents are used digitally, they have to link to the website.

(3) The user’s data collected, processed and generated by the online solution will be stored on the provider’s servers. The user remains the sole owner of the data. Insofar, the provider is only a processor of personal data.

(4) The provider stores the multimedia content uploaded by the user for the user or provides the necessary storage space and access thereto. The user is responsible for the multimedia content uploaded to the provider’s website. If the user uses illegal content and a claim is made against the provider by a third party, the user is obligated to hold the provider harmless against any claims, including claims for damages and reimbursement of costs, upon first request.

§13 Data Protection

(1) For the contract, contractual data are collected in accordance with Art. 6 para. 1 (b) GDPR (for example name, address and e-mail address, possibly also services used and all other electronically or for the purpose of storage transmitted data, which are required for the performance of the contract), insofar as they are required for the conclusion, negotiation or amendment of this contract.

(2) The contractual data will only be passed on to third parties insofar as it is necessary to perform the contract (in accordance with Art. 6 para. 1 (b) GDPR), for the overwhelming interest in an effective performance (in accordance with Art. 6 para. 1 (f) GDPR) or if consent has been given (in accordance with Art. 6 para. 1 (a) GDPR) or if there is another statutory permission. The data will not be passed on to a country outside of the EU, unless the EU Commission has determined a similar level of data protection as in the EU, consent has been provided or standard contractual provisions have been agreed with the third-party provider.

(3) Concerned individuals may at any time and free of charge request information about the personal data stored about them. They may at any time request that incorrect data be corrected (also by way of adding information) as well as the limitation of the processing of their data, or even the deletion of their data. This applies in particular if the reason for the data processing no longer exists, if a required consent has been withdrawn and there is no other legal basis, or if the data processing is illegal. The personal data will then be corrected, blocked or deleted without delay and according to statutory requirements. It is always possible to withdraw the consent for the processing of personal data which had been given previously. This may be done without any formal requirements, for example by e-mail. The withdrawal has no effect on the legality of the data processing carried out up to that point. There is a right to request the transfer of the contractual data in machine-readable form. In the case of a suspected violation of rights by the data processing, a complaint may be filed with the competent supervisory authority.

(4) The data will generally only remain stored as long as the purpose of the respective data processing calls for it. Storage beyond that time is possible if it is necessary to pursue legal claims or for legitimate interests or in cases of a statutory obligation to store the data for longer (for example tax-law requirements to maintain records, statute of limitations).

(5) The user allows the provider to copy the data provided by the user if this is necessary to provide the services under this contract. The provider may also store the data on a back-up system or in a separate back-up data centre. To deal with malfunctions, the provider may also change the structure of the data or the data format.

§14 Mediation

(1) In the case of disputes arising out of the business relation between provider and user, the parties have to strive for an amicable solution. If no agreement can be reached, they vow to attempt to reconcile their differences in a mediation proceeding before addressing a court of law. This does not exclude the possibility to file for a temporary injunction. The user’s mere non-payment of the remuneration without any substantiated explanation is no dispute within the meaning of this mediation clause.

(2) If a party requests mediation from the other party, both parties have to agree on a mediator within eight days. If such an agreement is not reached within due time, upon the request of one of the parties, an attorney – preferably one who offers online mediation – has to be appointed as mediator with binding effect for the parties by the chairperson of the Bar Association of the provider’s jurisdiction or one of his/her deputies. This jurisdiction is also the place for the mediation, unless the board of the association will propose an online mediation. The language of the mediation is German, unless all participants agree on a different language.

(3) Addressing a court (or an alternative arbitration procedure, if agreed) is only permitted once the mediation has failed because (a) the parties have unanimously declared the mediation to be over, (b) one party refuses further negotiations after the first mediation session, (c) the mediator has declared the mediation to have failed or (d) no agreement has been reached within 3 months after the beginning of the first mediation session, unless the parties extend this deadline unanimously.

(4) The costs of an unsuccessful mediation are borne by both parties at equal parts in relation to the mediator. Notwithstanding this rule in relation to the mediator, the parties are free to demand reimbursement of these costs and lawyer’s fees, if applicable, in a subsequent proceeding; this will be governed by the relevant decision. If the parties reach an agreement, they may also come to an agreement on costs.

§15 Jurisdiction, Applicable Law

(1) The place of performance is at the registered office of the provider.

(2) For all current and future claims from the business relationship with a user, who is a business person within the meaning of § 14 BGB, the courts at the provider’s registered business address have sole jurisdiction. The same jurisdiction applies if the user has no domestic place of general jurisdiction, if the user moves or changes the business registration out of the country after the conclusion of the contract of if the user’s residence or habitual residence is unknown at the time of filing a lawsuit. But the provider may also sue the user at the user’s place of business or at any other competent jurisdiction at any time.

(3) All contractual relations between the parties are governed by German law exclusively.