Terms of Service

Oct 10, 2022

Terms of Service of the Engity GmbH

Version: 1.1

1. Scope of Services, License

  1. Engity shall make the Services available to Customer according to these Terms of Service and applicable law and regulations.
  2. Engity grants Customer the
    • non-sublicensable,
    • non-exclusive,
    • nontransferable (except as expressly permitted in 12)
      right during the Term to allow its Users to access and use the Service in accordance with the Documentation, solely for Customer's business purposes.
  3. 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.
  4. The Services are not intended for use in critical infrastructure or for military use.

2. Availability

  1. Engity shall use best commercial efforts to make the Service available according to the Service Levels agreed upon.
  2. The Services may be interrupted for maintenance, repairs, and upgrades ("Maintenance Windows"). Engity shall use best commercial efforts to notify Customer of such Maintenance Windows in advance.

3. Prices and Billing

  1. Unless otherwise indicated, prices are listed excluding VAT (if applicable).
  2. 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.
  3. 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/.

4. Use Restrictions

  1. 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 or any Software (except to the extent expressly permitted by Engity or applicable law.
  2. Customer will not rent out or license out the Service.
  3. 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.
  4. Customer agrees to, and will not attempt to circumvent, the limitations or protective measures of the Service.
  5. The Services are not intended for use in any country where their use would violate local law including import or export controls.
  6. Engity may make available or provide to Customer updated versions of Services.

5. Term and Termination

  1. Unless otherwise stipulated, the Agreement is concluded for an initial period of twelve (12) months. It is extended by one twelve (12) further months if it not terminated by either Party with at least three (3) months' notice to the end of the respective term.
  2. 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.
  3. Either Party may terminate this Agreement by notice with immediate effect for good cause.
  4. Unless otherwise stipulated, Freemium Subscriptions can be terminated within a month.
  5. Any termination notice must be made in at least text form.
  6. 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.

6. Technical Integration, Support, and Data Processing

  1. 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").
  2. Support and Technical Integration Services can be obtained by Customer through a separate agreement.

7. Limitation of Liability

  1. The liability of Engity 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.
  2. In cases of slight negligence, Engity shall only be liable if a Material Obligation was breached. "Material Obligations" means all obligations (a) whose fulfilment is essential to the proper implementation of the agreement and (b) 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.
  3. 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.
  4. 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.
  5. 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.

8. Ownership

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

9. Marketing

  1. 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.
  2. Without separate permission, however, Engity shall not create the impression of an endorsement of the Services by Customer.

10. Confidentiality

  1. 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.
  2. 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. Transfer

  1. 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.
  2. 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.
  3. 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.

12. Miscellaneous

  1. 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.
  2. 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.
  3. Place of performance and venue shall be Munich (city), Germany. However, Engity reserves the right to use any other legally admissible venue.
  4. 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.