go:Identity - The Identity Management Appliance

General Terms of Subscription for go:Identity
Version 2.4 effectice July 1st 2018

I.    Definitions
1.    "Affiliated Companies" means companies as defined in section 15 AktG (German Stock Corporation Act).
2.    “Agreement” means order form of ITConcepts and these terms and conditions.
3.    "Appliance" means the ITConcepts Hardware, the Contractual Software in object code as well as attached or otherwise provided Documentation.
4.    "Confidential Information" means any information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party") or otherwise perceived or gained access to by Receiving Party which is marked as confidential or which a reasonable person by its content, character or way of disclosure would deem confidential. In particular, but without limitation (i) any information concerning finances, customers, employees, software codes, process schemes, technical specifications, development and marketing plans, strategies, forecasts, offers as well as associated documents; (ii) the Appliance, the Contractual Software, the ITConcepts Hardware as well as Third Party Software; and (iii) the terms of this Agreement, its attachments and amendments including price information and other contractual terms and conditions.
5.    "Contractual Software" means the software go:Identity specified in the order form.
6.    "Documentation" means the technical description and other information concerning Contractual Software, e.g. product release notes, reference and user manuals, in hardcopy or as electronic file. Documentation may be available in English only.
7.    Essential Contractual Obligations are specifically described obligations, breach of which would jeopardize the purpose of the Agreement, or fulfilment of which is pre-requisite for proper performance of the Agreement and upon the fulfilment of which Customer may regularly trust.
8.    "ITConcepts Hardware" means the hardware on which the Contractual Software is partially pre-installed, which will be connected to the hardware of Customer.
9.    "Third Party Software" is software originating from a different vendor, which forms either a component of the Contractual Software or is linked with ITConcepts software in such a way that they are marketed together as one Contractual Software.
10.    "Update" and "Patch" encompass insignificant changes and/or insignificant added functions and/or adjustments and corrections of errors of the Contractual Software. They are typically identified by a change in the digit to the right of the comma (e.g. 1.0 to 1.1).
II.    Subject Matter of the Agreement
1.    Subject of matter of the Agreement is the acquisition of a temporary right to use the Appliance, including any Updates and Patches, as described hereinafter.
2.    Support services are not subject matter of the Agreement. Customer is obliged to enter into a separate Support Agreement for the term of the Agreement. The term of the Support Agreement corresponds to the term of the Agreement.
3.    Unless provided otherwise, offers of ITConcepts have a validity of 14 days from the date of the offer.
III.    Delivery
1.    Delivery of the Appliance is effected CPT Bonn (Incoterms 2010).
2.    Parts of the Contractual Software have to be installed on Customer's hardware on site.
3.    Delivery and/or implementation of Updates may occur – subject to ITConcepts discretion – via an ITConcepts distribution system, an employee of ITConcepts or by making it available to Customer via the ITConcepts Customer Centre. Prerequisite for the delivery of Patches is prior coordination with Customer. Further conditions are specified in the Support Agreement.
4.    Costs and risks of the delivery and the download shall rest with Customer.
5.    Customer shall confirm receipt of the Appliance and any Updates and Patches in writing upon ITConcepts’ request.
IV.    Nature and Scope of the Right to Use
1.    Subject to correct payment, ITConcepts shall grant to Customer the non-exclusive, non-sublicensable, temporary right to use the Appliance as follows:
a)    access the Appliance to use the Contractual Software on hardware owned or leased by Customer and located on the premises of Customer within the Federal Republic of Germany, Switzerland or Austria;
b)    use for Customer's own, internal business operations;
c)    makes copies necessary for use in accordance with the Agreement as well as one copy for backup purposes, provided any references to copyright, ownership and other rights are displayed on each copy;
d)    decompile the Contractual Software in the scope of Sec. 69e UrhG (German Copyright Act), provided that Customer filed a written request with ITConcepts to provide information necessary to establish interoperability and ITConcepts has not provided such information within a reasonable grace period.
2.    Unless agreed otherwise in writing, the usage right shall be granted solely for the country, in which the Appliance has been installed.
3.    Any other use of the Appliance and its components shall be prohibited. In particular, but without limitation Customer shall not be entitled to
a)    use the Appliance or its components beyond the agreed capacity;
b)    alter or modify the Appliance or its components;
c)    alter or delete references to author, proprietorship or any other right;
d)    reverse engineer, disassemble or in any other away attempt to gain access to the source code of the Contractual Software unless otherwise provided for in section IV) 1.d) and applicable law;
e)    rent, lease, loan or in any other way temporary provide third parties the Appliance or its component or access thereto; use the Appliance in service centres, data processing centres, outsourcing environment or in any other way for third parties;
f)    attempt to remove or circumvent technical protections of the Appliance or its components; or
g)    infringe any other restrictions of use encompassed in the Documentation.
4.    The right of use expires automatically upon expiration or termination of the Agreement.
5.    The aforementioned right of use extends to any Updates and Patches provided to Customer.
6.    The Appliance may only be transferred to a third party (including Affiliated Companies) in its entirety, subject to Customer’s complete and final waver of any rights of use and use of the Appliance and its components and subject to prior written consent of ITConcepts. Consent shall be granted if
a)    Customer confirms ITConcepts in writing that he has transferred the entire Appliance to the third party and has deleted any copies made of the Contractual Software; and
b)    the third party has declared in writing to ITConcepts that he shall be bound by the Agreement.
If Customer has procured the Contractual Software or parts thereof via download, he may copy these to storage media if required for the purpose of transfer only. Apart from that Customer's rights in the downloaded copy are exhausted in the same way as if Customer had received the Contractual Software on storage media.
V.    Updates and Patches
1.    If Updates and/or Patches are general available during the term of the Agreement, they will be made available to Customer.
2.    Customer has to safeguard that his business operation is not impaired by the installation of Patches and Updates. He has to perform complete backups of his systems both regularly and prior to installation of Patches and Updates.
VI.    Remuneration
1.    The fees specified in the order form are due and payable upon invoicing, however not before delivery of the Appliance.
2.    Prices are subject to additional applicable VAT, other taxes, fees and levies.
3.    If Customer is in default, Customer has to pay interest in the amount of 8 % per annum above the respective base interest rate of the European Central Bank. Further compensation claims remain unaffected.
VII.    Term and Termination
1.    The effective date of the Agreement is the date stated in ITConcepts’ Order Form. The Agreement expires automatically one year thereafter. Customer may incur additional costs if the follow-up agreement does not succeed this Agreement immediately.
2.    The right to terminate this Agreement for good cause remains unaffected.
3.    ITConcepts shall be entitled to terminate this Agreement with immediate effect inter alia if Customer
a)    does not pay fee due within seven weekdays following written request to do so;
b)    infringes any property rights, including copyrights, of ITConcepts, the vendor of the Third Party Software, any Affiliated Companies or any other third party;
c)    utilises the Appliance beyond the right to use granted herein;
d)    breaches the Agreement and such breach is not cured within 30 days after notice thereof. No such grace period shall be granted, if it is a repeated breach and/or there are special circumstances.
4.    Upon termination of the Agreement Customer shall immediately cease to use the Appliance and return the Appliance including any Documentation to ITConcepts without undue delay. Any installed (part of the) Contractual Software as well as copies made of the Contractual Software have to be deleted immediately. Customer shall confirm deletion to ITConcepts in writing within one week following the termination of the Agreement.
5.    Customer shall take any measures necessary to safeguard that he does not suffer any damage due to the (as the case may be, automatic) termination of the use of the Appliance on the termination of the Agreement. He is particularly obliged to perform a data backup in due time prior to the expiration of the Agreement.
6.    Should Customer continue to use the Appliance following expiration of the Agreement, ITConcepts may – subject to its own discretion – treat this as prolongation of the Agreement for another year or request payment for such unauthorised use, both alternatives based on the then applicable fee.
VIII.    Warranty
1.    ITConcepts warrants that the Appliance used in compliance with the Agreement
a)    will perform substantially in accordance with the Documentation provided; and
b)    will not infringe third party rights in the country of destination - alternatively the Federal Republic of Germany.
ITConcepts does not give any further (explicit or implied) warranties or guarantees; unless ITConcepts has explicitly confirmed an additional quality or condition in writing. In particular ITConcepts does not warrant that the Appliance is fit for a particular purpose or error free. Further, no warranty may be derived from any presentation of the Appliance in public announcements or advertisements of ITConcepts, the vendor of the Third Party Software, their employees or distribution partners.
2.    Customer is obliged to inspect the Appliance immediately and report defects in writing without undue delay in accordance with section 377 HGB (German Commercial Code). However, such inspection has to be carried out within the limits of the rights granted to Customer pursuant to section IV Immediately shall mean within two weeks following receipt of the Appliance or – if ITConcepts conducted the installation - within two weeks following installation. If Customer infringes this obligation, the Appliance shall be deemed approved.
3.    Customer has to report defects in a comprehensible and detailed manner to ITConcepts, providing any information relevant for the detection and analysis of the defect in order to enable ITConcepts to reproduce the error. Additionally, Customer has to grant ITConcepts access to the Appliance (on site and per remote access).
4.    In case of defects ITConcepts shall be entitled to two attempts to rectify such defect.
a)    In case of defects as to quality rectification may – subject to ITConcepts sole discretion – be achieved by (i) eliminating the defect or (ii) replacing the entire Appliance or parts thereof. Rectification may in particular be accomplished by pointing out ways to avoid effects of defects and by providing workarounds or Patches. ITConcepts shall consider Customer's interest when selecting type and manner of rectification
b)    In case of defects in title rectification may – subject to ITConcepts sole discretion – be achieved by (i) altering or replacing the Appliance or parts thereof with an equivalent product (ii) procuring the rights required for further use of the Appliance, or (iii) if option (i) and (ii) are – subject to ITConcepts sole discretion – impossible or unreasonable, by terminating the Agreement. In the latter case, ITConcepts shall reimburse prepaid fees proportionately.
5.    Should both attempts fail, Customer shall request ITConcepts to rectify the defect setting a reasonable time limit and expressly reserving his right to withdraw from the Agreement and/or claim compensation should such rectification fail. Such reservation shall be made in writing. Should rectification within such time limit fail, Customer shall – in case of a significant defect - be entitled to withdraw from the Agreement, reduce the remuneration or claim damages. Section X applies accordingly.
6.    Prerequisite for warranty claims is that the defect is reproducible or otherwise verifiable by Customer. Warranty claims are excluded if a defect is caused by hardware, software or services of third parties, use of the Appliance not covered by this Agreement or modification of the Appliance.
7.    Warranty claims become time barred as the case may be one year from the date of delivery, date of provision or - if the installation was performed by ITConcepts – the date the installation was completed. This does not apply to claims according to section X.1. 
8.    Services provided by ITConcepts in the context of searching for or rectifying of defects without ITConcepts being obliged to do so, shall be remunerated by Customer in accordance with the valid hourly rates of ITConcepts. This applies particularly if a defect is not verifiable or not caused by ITConcepts.
IX.    Third party rights
1.    If a third party legitimately claims an infringement of its patents and other rights due to the use of the Appliance by Customer ("Third Party Claims"), ITConcepts shall be liable for reasonable costs and damages of Customer caused by the defence of any Third Party Claim, if such infringement existed at the time of delivery.
If Customer is sued by such third party, Customer shall consult with ITConcepts and shall perform procedural actions, e.g. acknowledgement or settlement, with ITConcepts’ prior written consent only. Additionally, ITConcepts shall be entitled to conduct and settle any judicial and extrajudicial disputes relating to such Third Party Claim itself or through the vendor of the Third Party Software. ITConcepts shall not be entitled to agree to monetary obligations at Customer’s expense without Customer’s consent.
2.    ITConcepts shall not be liable, if
a)    Customer has not informed ITConcepts about Third Party Claims immediately and comprehensively;
b)    ITConcepts or the vendor of the Third Party Software does not have the opportunity to assume sole control over the defence of Third Party Claims and dispute settlement;
c)    Customer does not support ITConcepts or the vendor of the Third Party Software appropriately;
d)    the Third Party Claim is based on one of the following reasons: (i) use of the Appliance together with software not released in the Documentation; (ii) Customer does not use an Update despite the expiration of an appropriate time frame; (iii) use of the Appliance beyond the specifications of the Agreement, in particularr the Documentation.
3.    ITConcepts shall be entitled to amend or replace the Appliance or procure rights required for its further use even if an infringement of a Third Party Right appears merely possible.
X.    Limitation of Liability
1.    ITConcepts’ liability shall be unlimited in case of intent, gross negligence, assumption of a quality guarantee, fraudulent concealment of a defect, injury of a person’s life, body and health as well as claims according to sections 1, 4 ProdhaftG (Product Liability Act).
2.    Notwithstanding the legal grounds (e.g. non-performance, default, warranty, culpability at the formation of the Agreement, law, tort, equity etc.) ITConcepts shall be liable in any other case only, if ITConcepts infringed an Essential Contractual Obligation (Kardinalpflicht). In this case ITConcepts liability shall be limited to typical damages foreseeable at the time of contract conclusion.
3.    The liability according to paragraph 2 shall be limited in total to 70% of the fee paid in connection with the act or service, which caused the damage.
4.    In case of loss of data and data destruction ITConcepts shall be liable only for the costs of necessary reconstruction from back-up copies.
5.    Claims according to paragraph 2 become statute barred within one year, unless a shorter legal statute of limitation applies. If claims are based on defects, the commencement of the statute of limitation is detailed in section VIII.
XI.    Other rights
1.    The Appliance, in particular the Contractual Software, is protected by copyright, industrial rights, as know-how or in any other way as far as legally possible. Customer is not entitled to remove or obscure any references of product identification, control numbers or symbols, copyright notices, trademarks, distinctive signs and other references from the Appliance. This applies also, if the Appliance is modified or processed in compliance with the Agreement.
2.    Customer obtains the rights explicitly granted to him under this Agreement only; any other rights rest solely with ITConcepts and/or the manufacturer of the Third Party Software. This applies also, if specifications or collaboration of Customer influenced the Appliance.
3.    The Appliance may encompass open-source-software and software of third parties. It encompasses in particular software governed by the MIT-license and software governed by the Apache license 2.0. Concerning said components of the Appliance the terms and conditions of the applicable open source license apply only. The license terms are attached to these terms and conditions.
XII.    Confidentiality
1.    Receiving Party shall treat Confidential Information using at least the same level of diligence Receiving Party uses to protect its own Confidential Information, under no circumstances with less than reasonable diligence.
2.    Receiving Party shall use Confidential Information of Disclosing Party in compliance with this Agreement only, store it securely and protect it against unauthorised access by third parties. Customer shall particularly safeguard that no third party has access to the Appliance.
3.    Receiving Party shall disclose Confidential Information only to its own employees and subcontractors who have a need to know it for the purpose of this Agreement and who are subject to a comparable, in no event lesser, obligation of confidentiality.
4.    Receiving Party shall inform Disclosing Party immediately and comprehensively if it becomes aware of any unauthorised use or disclosure of Disclosing Party’s Confidential Information.
5.    If Receiving Party is obliged by judicial or governmental order or mandatory law to disclose Confidential Information, it shall inform Disclosing Party immediately. Receiving Party shall take any reasonable measures to prevent disclosure. If this is not possible, Receiving Party shall take any reasonable measures to ensure confidential treatment of Confidential Information disclosed. Receiving Party’s confidentiality obligation vis-à-vis other third parties remains unaffected.
6.    The obligation of confidentiality does not apply if Receiving Party can show that said information
a)    was publicly known on the date of disclosure under this Agreement or becomes publicly known thereafter without any wrongful act or omission of Receiving Party;
b)    has been in the possession of Receiving Party prior to disclosure by Disclosing Party without any obligation of confidentiality; or
c)    was legitimately obtained from a third party without any obligation of confidentiality.
7.    The obligation of confidentiality survives the termination or expiration of this Agreement. As far as information does not cover personal data, the obligation expires five years thereafter.
XIII.    Data Protection
1.    ITConcepts is entitled to collect, store, process and use business contact data (particularly name, occupation, business address, business telephone and fax number as well as email address of Customer's employees) in order to manage and maintain the business relationship. This encompasses in particular, use of the contact data for marketing purposes, inter alia provision of information concerning updates of services and other products and services, which may be of interest for Customer.     
Customer may at any time object to use of contact data for marketing purposes.
2.    As far as use of personal data according to paragraph 1 requires consent of Customer’s employees, Customer shall be obliged to obtain and store such consent. The right to object to such use remains with the respective employee.
3.    Should ITConcepts process personal data on behalf of Customer, ITConcepts shall adhere to reasonable instructions of Customer. Technical and organisational measures to secure personal data against misuse are encompassed in ITConcepts’ data protection concept.
4.    Data protection obligations survive termination or expiration of the Agreement.
XIV.    Audit
1.    Upon ITConcepts’ request Customer shall provide a product usage report concerning type and scope of Customer’s use of the Appliance (systems measurement report).
2.    Once per contract year, ITConcepts shall be entitled conduct an audit at Customer’s premises during normal business hours in order to verify Customer’s compliance with this Agreement. Such Audit may be carried out by ITConcepts itself or a third party, in particular vendor of the Third Party Software. Customer shall provide access to books, information, Appliance, hardware and systems, required for such audit. Additionally, Customer shall enable ITConcepts to read out the usage behaviour of Customer, e.g. by installing specific software.
3.    If the audit reveals that the Appliance was used beyond the agreed capacity, Customer shall pay the current fee for the exceeded capacity. If the agreed capacity is exceeded by more than 5%, Customer shall additionally bear costs of the audit.
XV.    Export Control
1.    ITConcepts assumes that Customer does not (re)export the Appliance. However, ITConcepts points out that the Appliance is subject to export control.
2.    Customer shall comply with any applicable international and national laws, including the US Export Administration Regulations, as well as restrictions adopted by US- and other government prohibiting delivery to certain restricted persons, restricted countries and residents of said restricted countries.
3.    Customer warrants and represents that he is neither a company nor a person prohibited from receiving the delivery of the Appliance according to export controls. Furthermore he represents and warrants that (a) he will not (re)export or otherwise transfer the Appliance into a country which is subject to a trade embargo of the USA or the EU ("Country of Destination") and (b) he will not deliver the Appliance to a citizen or resident of a Country of Destination or a person/company to whom the delivery according to export control is prohibited.
4.    Rights granted in relation to the Appliance shall be forfeited immediately without compensation, if Customer fails to comply with this provision.
XVI.    Force Majeure
1.    Neither party shall be liable, if delay or failure to perform any obligation is based on strike, lock-out, official intervention, governmental regulations or controls, electricity limitations, natural disasters, emergency situations or any other circumstances which are de facto beyond its control. This does not apply to payment obligations and obligations concerning confidentiality.
2.    The party hindered by the force majeure shall inform the other party without delay of the reason and estimated duration of the force majeure.
XVII.    Miscellaneous
1.    Deviating or supplementary terms and conditions of Customer do not apply, unless explicitly acknowledged by ITConcepts in writing. In particular, Customer’s reference to its terms and conditions in the course of the order process or at any other point in time shall be irrelevant, even if ITConcepts does not object to said terms or otherwise continues implementation of the Agreement being aware of said terms and conditions.
2.    ITConcepts shall be entitled to name Customer as reference stating the company name, trade mark and solution applied at Customer. This particularly applies for references in case of internal and external events, publications and/or vis-à-vis other prospective or actual customers both in printed and online media.
3.    ITConcepts is entitled to fully or partially assign or transfer this Agreement to third parties without Customer's consent.
4.    Only undisputed or legally valid counter claims entitle Customer to offset such counter claim or withhold payment.
5.    Failure to assert rights and claims or delayed assertion shall not constitute a waiver of these rights and claims. Occasional or partial assertion of any rights and claims does not exclude any permanent or exceeding assertion of said rights and claims.
6.    This Agreement including this section may only be modified in writing by both parties.
7.    Should any provision of this Agreement be or become invalid or impracticable, such invalidity or impracticability shall not affect the enforceability and validity of the Agreement as such and its other provisions unless the invalid or impracticable provision is of vital importance for the performance of this Agreement for either Party. Any invalid or impracticable provision shall be replaced by such valid and practicable provision which comes as close as possible to the economic spirit of the invalid or impracticable provision.  
8.    The Agreement is subject to the laws of the Federal Republic of Germany, excluding Private International Law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as Conflict of Laws provisions.
9.    Any disputes arising out of or in connection with this Agreement or its validity shall be exclusively submitted to the competent ordinary courts of Bonn, Germany. This shall not apply for processes of interim relief and default action.
Subject to absorption of any additional costs, either Party shall be entitled, to request a decision according to the Arbitration Rules of the German Institute of Arbitration e. V. (DIS) or request the claimant to have the dispute transferred to such court of arbitration instead. Place of arbitration shall be Bonn, Germany. Three arbitrators shall be appointed. Language of arbitration shall be German. In this case recourse to the ordinary courts shall be excluded. The prevailing party shall be entitled to recover its reasonable attorney’s fees, if applicable at the ratio of defeat.
ANNEX
Open Source Software
I.    FreeBSD 11

The software “FreeBSD 11 is encompassed in the Appliance. Concerning this software the following terms and conditions apply:  

https://www.freebsd.org/copyright/freebsd-license.html

II.    MySQL 5.7

The software “MySQL 5.7” is encompassed in the Appliance. Concerning this software the following terms and conditions apply:

https://downloads.mysql.com/docs/licenses/mysqld-5.7-com-en.pdf

This is a license book. It contains Oracle's product license and other licensing information, including licensing information for third-party software which may be included in this commercial release of MySQL 5.7.
Document generated on: 2017-11-15 (revision: 441)

III.    Nginx 1.10

The software “Nginx 1.10” is encompassed in the Appliance. Concerning this software the following terms and conditions apply:

http://nginx.org/LICENSE

IV.    OpenJDK 8

The software “OpenJDK 8” is encompassed in the Appliance. Concerning this software the following terms and conditions apply:

GNU General Public License, version 2, with the Classpath Exception

http://openjdk.java.net/legal/gplv2+ce.html

V.    OpenLDAP 2.4

The software “OpenLDAP 2.4” is encompassed in the Appliance. Concerning this software the following terms and conditions apply:

https://www.openldap.org/software/release/license.html

The OpenLDAP Public License - Version 2.8, 17 August 2003

VI.    OpenNTPD 6.0

The software “OpenNTPD 6.0” is encompassed in the Appliance. Concerning this software the following terms and conditions apply:

https://www.freebsd.org/copyright/freebsd-license.html

Copyright (c) Copyright 1997-2017, The Open BSD Project, Theo de Raadt.

VII.    MidPoint 3.51

The software “MidPoint 3.51” is encompassed in the Appliance. Concerning this software the following terms and conditions apply:

Licensed under the Apache License, Version 2.0 (the "License"); you may not use this product except in compliance with the License.

https://www.apache.org/licenses/LICENSE-2.0.html

VIII.    SSHguard 1.7

The software “SSHguard 1.7” is encompassed in the Appliance. Concerning this software the following terms and conditions apply:

https://www.freebsd.org/copyright/freebsd-license.html

Copyright (c) Michele Mazzucchi <mij@bitchx.it>,T.J. Jones <tjjones03@gmail.com>,Kevin Zheng <kevinz5000@gmail.com>
Copyright 1997-2017, The Open BSD Project, Theo de Raadt.

IX.    Tomcat 7

The software “Tomcat 7” is encompassed in the Appliance. Concerning this software the following terms and conditions apply:

Licensed under the Apache License, Version 2.0 (the "License"); you may not use this product except in compliance with the License.

https://www.apache.org/licenses/LICENSE-2.0.html

X.    Tomcat 8

The software “Tomcat 8” is encompassed in the Appliance. Concerning this software the following terms and conditions apply:

Licensed under the Apache License, Version 2.0 (the "License"); you may not use this product except in compliance with the License.

https://www.apache.org/licenses/LICENSE-2.0.html

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