Terms of service

Terms and conditions for Data Handler LLC regarding the service Failsafe.app.
Last modified: January 7, 2023 List of subprocessors

1. Scope of Application

1.1 The following Terms and conditions apply to all contracts and services rendered between Data Handler LLC (hereinafter referred to as "Failsafe.app") and its customers with regards to the use of Failsafe.app (hereinafter "the Website"). These Terms and Conditions constitute a material part of each agreement unless expressly agreed otherwise in writing. Any differing terms or conditions by the user only apply with written consent by Failsafe.app. 1.2 By creating an account on Failsafe.app Serives or signing into Failsafe.app Services through third party authentication, the user agrees to these Terms and Conditions. 1.3 Failsafe.app is offered only to business customers, not to consumers. Consumers are natural persons who conclude the respective legal transaction for a purpose which is outside their trade, business or profession. 1.4 Failsafe.app reserves the right to modify these Terms and Conditions with effect for the future at any time. Failsafe.app will notify the customer of these changes. If the customer does not object within two weeks after receipt of the change notification, the changes will be deemed accepted by the customer. Failsafe.app will inform the customer about the customer's right to object and about the effects of a lack of objection. If the customer rejects the changes, Failsafe.app has the right to terminate the agreement.

2. Failsafe.app Services

2.1 With its Failsafe.app Services, Failsafe.app offers the customer a web service to distribute software dependencies for consumption with the Open Source PHP dependency manager Composer. 2.2 Failsafe.app may continuously improve and expand its Failsafe.app Services. The customer is not entitled to any functionality beyond 2.1. 2.3 Unless expressly specified otherwise in the respective service description on the Website, Failsafe.app ensures the provision of the Failsafe.app Services on the internet with an availability customary within the industry. Failsafe.app Services do not include internet access. 2.4 In case of unforeseen events, Failsafe.app is entitled to suspend the Failsafe.app Services for maintenance or repair purposes if this is necessary to ensure the proper operation of the Failsafe.app Services. 2.5 Failsafe.app is entitled to use the assistance of third parties in order to fulfill its contractual obligations.

3. Offer and Conclusion of a Contract

3.1 The agreement between Failsafe.app and the customer can be concluded online via the Website. A representative of customer must create a user account and an organization representing the customer on the Failsafe.app Services. A right to claim a user account does not exist; Failsafe.app expressly reserves the right to reject a user account without stating reasons. 3.1.a The user account is non-transferable. 3.1.b User accounts must be used by only one real natural person. Other natural persons affiliated with the same customer may create separate user accounts and become members of the same organization within Failsafe.app Services. 3.1.c The user must keep the password secret and protect it against any wrongful use by unauthorized third parties. 3.1.d The customer may grant multiple user accounts ownership of its organization. It is the user's responsibility to ensure no user, who is not legally entitled to conclude contracts on behalf of the user, is granted ownership or access to viewing or modifying billing information. 3.2 The customer can order Failsafe.app's products and services via its user accounts. Failsafe.app offers different subscription plans for its Failsafe.app Services. The details for all available plans can be found on the Website in the users' account pages. 3.2.a To order a subscription plan, the customer must choose a subscription plan, enter billing information, and click on the button "Order Now" to make a binding offer to order the Failsafe.app subscription plan for an organization. Failsafe.app is not obliged to accept the customer's offer. The offer will be accepted by Failsafe.app making the functionality detailed on the Website for the subscription plan available to the customer. 3.2.b Subscription plans may include a free trial period. This does not affect the conclusion of the contract. The first payment will be due at the end of the trial period unless the customer cancels the subscription plan before the trial period is over. 3.3 The customer represents and warrants that all personal information as well as other relevant contractual data provided by the customer during the conclusion of the agreement is complete and correct. The customer is obliged to promptly inform Failsafe.app about any changes to this data and/or to update altered data in its customer account. In the event of a culpable breach of this obligation, Failsafe.app is entitled to suspend the contractual services. 3.4 The customer is aware that contractual declarations (e.g. confirmation emails, changes to the Terms and Conditions and other notifications) may be sent via email. They are deemed to have been received when they can be retrieved in the email inbox which was specified by the customer while creating an account under normal circumstances.

4. Customer's Rights and Obligations

4.1 The customer is entitled to use the Failsafe.app Services only to the extent described hereafter. 4.2 The customer is responsible for maintaining the confidentiality of credentials for third party authentication used to access Failsafe.app and login data provided by Failsafe.app. The customer agrees to immediately inform Failsafe.app of any unauthorized use of the customer's user accounts, credentials for third party authentication or login data provided by Failsafe.app, any breach of security or misuse or suspected breach of security or misuse of Failsafe.app. The customer will exit user accounts at the end of each session if they take place using a shared computer. Failsafe.app cannot and will not be liable for any loss or damage arising from the customer's failure to comply with this clause. 4.3 Failsafe.app Services do not include any legal advice or consultancy (e.g., of data protection, consumer information, copyrights, competition or professional association nature). The customer alone is responsible for compliance with these obligations. 4.4 The customer must not use Failsafe.app to distribute content violating third-party rights and ensures that distribution does not violate applicable law in any form. 4.5 The customer must follow Failsafe.app’s instructions as well as the protocols and specifications as requested by Failsafe.app with regard to the telecommunication/data transmission.

5. Fees, Payment

5.1 The fees for the Failsafe.app Services that the customer makes use of are displayed in the customers account, they depend on the chosen subscription plan and the number of user accounts available to the customer. Unless explicitly stated otherwise, all fees are quoted exclusive of the statutory value-added tax (VAT) applicable at the time. 5.2 Fees are due at the beginning of each billing period. 5.3 Terms and Conditions of involved payment processors (e.g. Stripe) apply in addition to these. 5.4 We reserve to adjust fees for subscription plans and user accounts at any time. In such an event, the change shall affect existing contracts at the beginning of the following billing period. 5.5 Failsafe.app accepts the payment methods as shown in the customer's user account on the Website (e.g. credit cards). 5.6 Invoices will be sent to the customer via email, unless expressly agreed otherwise. 5.7 In the event of the customer’s default of payment, Failsafe.app is allowed to charge default charges up to EUR 5,00 respectively as well as default interest in accordance with the statutory provisions. Failsafe.app reserves the right to prove and assert greater damages due to default. If the customer’s payments are considerably delayed, Failsafe.app reserves the right to suspend the provision of any further services, in particular the customer’s access to the Failsafe.app Services, at the expense of the customer until all due payments have been made. In the event of suspended services, the customer is nevertheless obliged to pay the agreed fees. After having set the customer a reasonable deadline and expiration of that deadline, Failsafe.app has the right to terminate the agreement with immediate effect. In case of returned direct debits or unpaid checks, the customer shall reimburse Failsafe.app for the costs incurred to the extent that the customer was responsible for the event given rise to these costs. Further claims and rights to which Failsafe.app may be entitled in this respect shall remain unaffected. Even if the customer does not use the provided Failsafe.app Services, the customer is still obliged to pay the agreed fees. 5.8 Any complaints relating to an invoice must be submitted to Failsafe.app in writing or by email to support@failsafe.app within four weeks upon receipt of the invoice. If no such complaint has been made within four weeks upon receipt of invoice, the invoice is deemed to be accepted. 5.9 All contractual remunerations for individual offers to entrepreneurs shall be subject to the addition of the legal rate of VAT or otherwise shall include the VAT applicable at the time of invoicing.

6. Term, Plan changes and Termination

6.1 The contract term for the use of Failsafe.app Services is determined by the billing period selected with the subscription plan. Where an automatic contract prolongation has been selected, the contract will be prolonged automatically upon the expiry of the contract term by the same period, insofar as it has not been previously canceled using the customer's user accounts on the Website. 6.2 The customer can change the chosen subscription plan via its user accounts at any time. 6.2.a If the customer reduces its plan to a cheaper plan or fewer user accounts, the recurring fee will be reduced accordingly as per beginning of the next billing period. The next billing period is visible in the cutomers user accounts and depends on the chosen subscription plan. 6.2.b If the customer chooses to upgrade its plan to a more expensive plan or adds more available user accounts, the recurring fee will instantly be increased accordingly. If there is still any unconsumed usage quota from the previously existing contract it will be credited to the customer or offset against the invoice for the new subscription plan. 6.3. Both Failsafe.app and the customer reserve the right to an early extraordinary termination of the contract for important reasons. An extraordinary termination is permitted in particular if the customer remains in default with payment obligations for two months or if the customer is insolvent, subject to insolvency proceedings, insolvency proceedings have been commenced or the commencement of insolvency proceedings is dismissed due to lack of assets. Where necessary, a written warning concerning the objectionable conduct must precede the extraordinary termination. 6.4 In case of contract termination, the customer is responsible for saving any data stored in the service before the contract expires.

7. Grant of Rights, Ownership, Third Party Rights

7.1 Upon conclusion of the agreement, Failsafe.app grants the customer the non-exclusive, non-transferable and non-sublicensable right to use the Failsafe.app Services during the term of the agreement to the extent that is appropriate to use the Failsafe.app Services according to the agreement. 7.2 The right of use shall expire once the customer defaults with any payments due. 7.3 Beyond the rights granted above Failsafe.app does not grant the customer any right, title, or interest in any of Failsafe.app's properties or any content other than the customer's data and its users' content. Failsafe.app does not grant the customer any rights to use Failsafe.app trademarks, logos, domain names or other branding material. Failsafe.app shall retain all intellectual property rights as well as any other property rights in and to the Failsafe.app Services, including source codes, databases, hardware and/or any other material (e.g. documentations, developments, functions, report templates, preparatory material, etc.). 7.4 The customer undertakes to not violate any applicable laws, in particular third party rights (e.g. copyrights, personality rights, intellectual property rights) or the terms of this agreement while using the Failsafe.app Services. If applicable, this also includes the provisions of the US Children’s Online Privacy Protection Act (“COPPA”). Insofar, the customer shall indemnify and hold Failsafe.app harmless from any and all third party claims (including but not limited to all costs and expenses, incl. reasonable attorney’s fees) that are being asserted against Failsafe.app upon first request. 7.5 Unless otherwise agreed between the parties, Failsafe.app is entitled to refer to the collaboration with the customer and the contractual product and to depict the Customer’s logo for self-promotional purposes.

8. APIs

8.1 Failsafe.app offers APIs (Application Programming Interfaces) to access user account and customer data on Failsafe.app Services. 8.2 Failsafe.app is not responsible for the services or the usage of services of third parties, that use the Failsafe.app API to access user account or customer data. Failsafe.app can only ensure the functionality of the interfaces in according with the availability provisions in these terms of service in so far as such functionality lies within Failsafe.app's scope of influence. In particular no liability can be accepted for the interfaces' possible lack of compatibility or accessibility where the defects lie in a third party supplier's software. 8.3 Failsafe.app Services may provide links to or incorporate third party technology. Failsafe.app does not endorse and is not responsible or liable for the operation or functionality of third party technology.

9. Liability

9.1 Failsafe.app shall be responsible that the Failsafe.app Services correspond to their intended use. Failsafe.app does not assume any liability for any damages resulting from a usage other than the intended use. The same applies to any damages resulting from a usage that is not in accordance with Failsafe.app’s instructions and recommendations or any other unauthorized usage. 9.2 Upon receipt of the services, the customer is obliged to immediately notify Failsafe.app of any obvious defects in writing whereas timely dispatch shall suffice to keep the term. The customer will provide Failsafe.app with all documents necessary for the analysis and debugging attempts and will provide Failsafe.app with access to the customer’s computers, if necessary. 9.3 Failsafe.app does not assume any liability for any disturbances, limitations, interruptions or disruptions of the Failsafe.app Services which are caused by circumstances beyond Failsafe.app’s area of responsibility. 9.4 Failsafe.app shall only be liable for any damages which can be attributed to a willful or gross negligent violation of a duty by Failsafe.app, its legal representatives or employees, as a result of grave organizational neglect or which are based on defects of a warranted quality of the Failsafe.app Serivces, pursuant to the statutory provisions. This limitation shall not apply to any damages resulting from injury of life, body or health. 9.5 Irrespective of the legal grounds, Failsafe.app shall only be liable for damages that have been caused by the culpable breach of a cardinal contractual obligation by its legal representatives or vicarious agents. Liability in this regard shall be limited to the typical damages that were reasonably foreseeable at the time the contract was concluded. Failsafe.app’s liability for indirect damages, in particular loss of profit, is hereby excluded. 9.6 The aforementioned liability provisions shall apply accordingly to Failsafe.app’s employees and agents. 9.7 Any claims for damages arising from a slight negligence by Failsafe.app shall become time-barred within one year upon occurrence of the damage. This limitation shall not apply to any damages resulting from injury of life, body or health. All other claims for damages shall become time-barred within the statutory period. 9.8 The Failsafe.app Systems shall be available at least 99.5% of the annual mean. Failsafe.app points out that the services may be interrupted or disrupted by circumstances beyond Failsafe.app’s area of responsibility, including but not limited to acts of third parties that do not act on Failsafe.app’s behalf, technical conditions of third party API providers including but not limited to Stripe, technical conditions of the internet that Failsafe.app cannot influence, or force majeure. If such circumstances interfere with the availability or functionality of the services provided by Failsafe.app, this has no effect on the contractual conformity of the services provided by Failsafe.app.

10. Misuse

10.1 The customer must not misuse Failsafe.app Services by knowingly introducing viruses, trojans, worms, malware or other material which is malicious or technologically harmful. The customer must not attempt to gain unauthorized access to Failsafe.app Services, the servers on which Failsafe.app Services are operated or any server, computer or database connected to Failsafe.app Services. The customer must not attack Failsafe.app Services via a denial-of-service attack or a distributed denial-of service attack. 10.2 Should the customer's usage of Failsafe.app create an overload and reach beyond reasonable use, Failsafe.app has the right to block access to Failsafe.app Services until such default has been rectified. In such cases we will normally notify the customer of the blocking. Our other legal and contractual rights shall remain unaffected. 10.3 The customer must not publish or store racist, pornographic, immoral or illegal content on Failsafe.app Services and/or content which glorifies or trivializes violence.

11. Data Protection

11.1 The customer is obliged to comply with the applicable data protection law when using the Failsafe.app Services. If applicable, the customer is also obliged to comply with the US Children’s Online Privacy Protection Act (“COPPA”) when using the Failsafe.app Services. 11.2 Failsafe.app processes the customer's personal data only for a specific purpose and pursuant to the statutory provisions. 11.3 Failsafe.app uses web tracking to store and analyze the customer's interaction with the Website. The customer agrees to this form of monitoring, tracking and storage. Failsafe.app may also store monitoring and statistical data about the customer's use of Failsafe.app Services and information about the customer's software packages. This data may be published by Failsafe.app so long as it is anonymized. 11.4 The customer has the right to receive information on the personal data that has been saved by Failsafe.app about the customer, free of charge. In addition the customer has the right to amend incorrect data, block and delete his personal data provided this does not contradict any legal storage obligation. 11.5 More information about data protection, how data is collected and used is available in the Failsafe.app Privacy Policy at https://www.failsafe.app/privacy-policy/

12. Final Provisions

12.1 Place of performance and exclusive place of jurisdiction for all disputes between the parties shall be Pennsylvania, U.S.A.. Pennsylvania, U.S.A. shall also be the exclusive place of jurisdiction if the customer does not have a general place of jurisdiction in Pennsylvania, if the customer, once it has concluded the contract, moves its domicile out of Pennsylvania or whose domicile is unknown at the time the lawsuit is filed. 12.2 Any modifications and or amendments of offers and these Terms and Conditions must be made in writing (email is sufficient). This also applies in case of a nullification of the written form requirement. 11.3 If any provision of these Terms of service or part thereof is invalid or becomes invalid at a later time, the validity of the remaining provisions shall remain unaffected. The relevant provision shall be replaced by a provision that as closely as possible reflects the economic purpose of the invalid provision. The foregoing shall apply analogously if any provision has inadvertently been omitted. 11.4 Unless expressly agreed otherwise, the legal relationship between Failsafe.app and the customer shall be governed by and construed in accordance with U.S.A. law.