Terms of Service

Version: 1.4

1. Scope of Services, License

Engity shall make the Services available to Customer according to these Terms of Service and applicable law and regulations.
Engity grants Customer the
- non-sublicensable,
- non-exclusive,
- nontransferable (except as expressly permitted in 12)
  right during the Term to allow Customer to access and use the Service in accordance with the Documentation, solely for Customer’s business purposes.
Customer agrees and acknowledges that the Services are intended to be used in connection with services and/or infrastructure provided by Customer itself or third parties (“Third Party Services”). Engity has no influence over such Third-Party Services and cannot be held responsible for their availability or proper functioning.
The Services are not intended for use in critical infrastructure or for military use.

2. Prices and Billing

Unless otherwise indicated, prices are listed excluding VAT (if applicable).
Within EU but outside of Germany, Customer is advised that Engity must add the applicable VAT if Customer does not provide its VAT identification number. Outside EU, VAT shall be handled according to applicable legal requirements.
The price shall adjust once yearly (on January, 1st, but not before the expiry of at least four (4) contractual months) in accordance with the German Producer Price Index for Services (Erzeugerpreisindex für Dienstleistungen) as published on the website of the Statistisches Bundesamt (German Federal Statistical Office) at https://www.destatis.de/.

3. Use Restrictions

Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Engity or applicable law).
Customer will not rent out or license out the Service.
Customer will use the Services only in compliance with all applicable laws and regulations. Customer is responsible for all activities conducted under its and its Users’ logins on the Service.
Customer agrees to, and will not attempt to circumvent, the limitations or protective measures of the Service.
The Services are not intended for use in any country where their use would violate local law including import or export controls.
Engity may make available or provide to Customer updated versions of Services.

4. Term and Termination

Unless otherwise stipulated, the Agreement is concluded for an initial period of twenty-four (24) months. It is extended by twelve (12) further months in each case it is not terminated by either Party with at least three (3) months’ notice to the end of the respective term.
Either party may terminate this Agreement
1. in the event the other party materially breaches this Agreement (in particular does not pay fees due) and does not cure such breach within thirty (30) days of such notice, or
2. immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Instead of terminating this Agreement, Engity may, at its own discretion, suspend the Customer’s access to the Service until the breach of Agreement has been cured.
Either Party may terminate this Agreement by notice with immediate effect for good cause.
Unless otherwise stipulated, Freemium Subscriptions can be terminated with a notice period of one (1) month.
Any termination notice must be made in at least text form.
For the avoidance of any doubt, termination of this Agreement shall have no effect on any outstanding obligations. The confidentiality obligation set forth herein shall survive termination.

5. Technical Integration, Support, and Data Processing

If personal data are being processed by Engity on behalf of Customer, such processing of personal data will be subject of a separate data processing agreement between the data controller and Engity (the “DPA”).
Support and Technical Integration Services can be obtained by Customer through a separate agreement.

6. Service Levels

Definitions.
1. “Available” or “Availability” means that the Core Services of the Engity Platform responds successfully to Customer API Calls and users can perform regular interactions.
2. “Core Services” means the Engity Authentication Services.
3. “Customer API Call” means a call by Customer or Customer’s End Users to an Engity Core Service API in a Customer Directory.
4. “Downtime” means times in which the Core Services are not Available. “Downtime” does not include any time in which the Engity Platform is not Available because of:
  1. scheduled or emergency maintenance,
  2. Force Majeure Events,
  3. load or penetration testing by Customer, or
  4. use of beta or experimental features or services.
5. “Failed API Call” means a Customer API Call that does not return the call or returns an error. This excludes excused events, such as
  1. failed Customer API Calls due to client-side application errors outside of the Engity Platform’s control, such as calls to:
    1. a custom database,
    2. third-party IdPs,
    3. Rules, Hooks or Actions,
    4. non-Core Service Engity extensibility points, and
    5. features not strictly required for a Customer API Call, and
  2. Customer API Calls that do not reach Engity Core Services due to errors outside of the Engity Platform’s control (e.g., due to government firewalls or IP blocking).
6. “Directory” means a logical isolation unit, or dedicated partition of a particular Engity Platform instance; the dedicated share may be configured to reflect the needs of the specific Customer business unit using the share.
Service Levels
1. For paid plans, Engity maintains an average Availability per calendar month for the Core Services of at least 99.9% (“Availability Level”).
2. The average Availability in Customer’s Directories in each month will be measured and monitored from Engity’s facilities and calculated using the following formula:
```
Availability Level = (total minutes per month)
                     – Downtime (in minutes)
                     / (total minutes per month)
```
3. If the Engity Platform fails to meet the Availability Level, Customer will be eligible to request a credit, calculated as follows (the “Service Level Credits”):
4. If the Engity Platform fails to meet the Availability Level during any given month, and Customer requests a Service Level Credit per Section 6.2 below, then Engity will provide Customer with a Service Level Credit equal to the percentage of the Monthly Subscription Fees for the month in which the service level failure occurred, corresponding to the Availability Level specified in the “Service Level Credits” table below. Each Service Level Credit will be paid by Engity to Customer by way of a credit on the next invoice submitted by Engity to Customer. If any credits are unutilized upon expiration or termination of the applicable Term, then Engity will apply such credits to any other Fees or expenses payable by Customer to Engity. If there are no such other Fees or expenses, then Engity will pay Customer the credit amount.
  
  Availability Level Service Level Credit:
  - between 99.9% and 99.0%: 5.0% of the Monthly Subscription Fee applicable to month in which failure occurred,
  - between 99.0% and 98.0% 10.0% of the Monthly Subscription Fee applicable to month in which failure occurred,
  - between 98.0% and 95.0% 20.0% of the Monthly Subscription Fee applicable to month in which failure occurred,
  - Less than 95% 50.0% of the Monthly Subscription Fee applicable to month in which failure occurred.
5. The rights to Service Level Credits are Customer’s remedy for any failure by Engity to meet the Availability. Customer’s right to demand defects to be remedied or to terminate the Agreement remains unaffected.
6. The Service Level commitments apply only to production use of the Engity Platform, and do not apply to any non-production uses (such as staging and testing). The Service Levels apply only if Customer’s utilization of the Engity Platform is compliant with the applicable Agreement. No Service Level Credits accrue if Customer is in breach of the Agreement.
7. To request a Service Level Credit, Customer must contact Engity in writing within five (5) business days of the occurrence of the event, giving rise to the credit. If Customer makes a request for a report on their Availability pursuant to such a Service Level Credit inquiry, Engity will provide a report of Customer’s Availability in that impacted month.

7. Limitation of Liability

Engity’s liability is unlimited in cases of damages
1. resulting in a loss of life, bodily injury, or bodily harm due to a breach of duty by Engity, a legal representative, or agent;
2. caused by the absence of any condition guaranteed; or
3. caused intentionally or through gross negligence.
In cases of slight negligence, Engity shall only be liable if a Material Obligation was breached. “Material Obligations” means all obligations
1. the fulfilment of which is essential to the proper implementation of the Agreement and
2. on the fulfilment of which a contractual party is regularly able to rely.
  In such cases, the liability of Engity shall be limited to foreseeable damages that can typically be expected to occur within the scope of the contractually agreed services.
The liability of Engity for loss of data shall be limited to those costs and efforts that a party would typically incur in connection with the recovery of the data when having regularly and reasonably created backups of its data.
In cases of Force Majeure, i.e. events beyond a party’s reasonable control which a party cannot overcome by the exercise of reasonable diligence, the Agreement including the affected Fees will be suspended to the extent they are affected. This shall particularly apply to cyber-attacks; governmental, administrative or court orders; fires, explosions, floods, war, mutinies, blockades, embargos, and labor disputes. The hindered party will inform the other party accordingly without any undue delay.
In the event of property or financial damages due to slight negligence, Engity’s maximum liability under this Agreement shall be equal to the value of all Fees paid to Engity in the three (3) months preceding the claim. In no event shall the liability exceed the sum of 50.000 Euro.

8. Ownership

All rights and title in and to the Service and related intellectual property are the sole property of Engity.
Improvements and further developments based on suggestions by Customer become the property of Engity, unless otherwise explicitly stipulated in a separate agreement.

9. Marketing

Customer grants Engity the right to identify Customer as user of the Services on Engity’s web site, in marketing materials and in other publicity material.
Without separate permission, however, Engity shall not create the impression of an endorsement of the Services by Customer.

10. Confidentiality

Unless otherwise provided in this Agreement, either Party undertakes to each other:
1. to keep confidential all information of a confidential nature or declared by the respective Party as being confidential;
2. not without the other Party’s written consent to disclose such information in whole or in part to any third party and subject to such consent the third party shall be bound by the same confidentiality provisions;
3. to use the information solely for the purposes of this Agreement and in no other way for its own benefit or the benefit of any third party;
4. to impose corresponding confidentiality obligations in writing upon its employees or third parties the Party uses to fulfill its obligations under this Agreement and to take actions in case of breach thereof.
The provision of the foregoing paragraph does not apply to any information which:
1. is or later comes into the public domain otherwise than by breach of this Agreement or any other agreements between the Parties;
2. is independently received from a third party who is free from any obligations not to disclose it;
3. is demonstrably conceived by the Party independently of the information received or acquired from the other Party; or
4. the receiving Party is bound by applicable laws or regulations to disclose (disclosure is only admissible to the extent legally required).

11. Supplemental provisions for consultancy services

Insofar as Engity provides consultancy services, in particular regarding funding and subsidies available, the supplemental terms of this Section 11 shall apply:

Customer shall support Engity free of charge in the performance of their services and shall provide Engity with all information and documents required for the performance of the respective tasks. In particular, Customer shall provide documents, resources and access to personnel. Decisions requested by Engity shall be made without undue delay. If Customer fails to comply with its obligation to cooperate and if this results in the impossibility to perform the services, Customer shall still be obliged to pay the agreed fee.
If set forth in the Agreement, Customer shall reimburse Engity for all necessary and reasonable expenses incurred by Engity in the course of its duties.
Engity will claim payment of agreed upon success feed, even in cases where the Customer does not make use of it despite approval or provision of the relevant authority or funder.
Engity also receives a success fee if shareholders of Customer and/or affiliated companies receive services from an incentive program, provided that Engity’s services were a contributing cause.
Engity’s claims for fees shall remain unaffected by termination of the Agreement.
In the event of defects, Customer is entitled to subsequent performance by Engity. Only in the event of failure, omission or unjustified refusal, unreasonableness or impossibility of subsequent performance may Customer reduce the remuneration or withdraw from the Agreement. Withdrawal due to a defect can only be declared if the service provided is of no interest to Customer due to failure, omission, unreasonableness or impossibility of subsequent performance.
Sections 5 and 6 shall not apply to consultancy services.

12. Transfer

Engity may at any time transfer the Agreement to any affiliated company by notifying Customer in at least text form 10 (ten) business days prior to the date of such transfer.
Customer may not transfer this Agreement or rights and/or obligations thereunder without Engity’s prior written consent, which shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, either Party may assign this Agreement in its entirety, upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

13. Miscellaneous

This Agreement constitutes the entire agreement and understanding of the Parties with respect to its subject matter and supersedes any previous agreement or arrangement between the Parties, whether oral or in writing, relating to the subject matter hereof.
The Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany with the UN Convention on Contracts for the International Sale of Goods and conflicts-of-laws rules being excluded.
Place of performance and venue shall be Munich (city), Germany. However, Engity reserves the right to use any other legally admissible venue.
If any provision of the Agreement or these Terms of Service is held by a court of competent jurisdiction to be contrary to applicable laws, then the remaining provisions of this Agreement, if capable of substantial performance, shall remain in full force and effect.