1. Scope of the agreement
1.1. One Data GmbH (“One Data” or “we”) has agreed with you (“Customer”) in one or more separate documents between the parties (“Offer”) individual terms to provide services to the Customer according to the conditions in these license terms. These license terms (“Service Terms”), together with the Offer including all attachments, constitute a legal agreement (the “Agreement”) between One Data and the Customer.
1.2. To be effective, verbal agreements made before or at conclusion of the Agreement require our confirmation by email or in writing.
1.3. We provide our services non-exclusively, i.e. we are also entitled at any time to provide services to other customers.
2. Prices and terms of payment
2.1. The prices are stated in the Offer. Our prices are calculated on a “time and material” basis. Our employees’ time is charged on a daily-rate basis, unless otherwise stated in the Offer. One working day consists of 8 working hours. Additional expenses, e.g. for accommodation, travel and expenses will be charged separately if necessary.
2.2. Unless otherwise agreed, any taxes will be charged in addition to the prices stated in the Offer.
2.3. Our services are invoiced on a monthly basis and are payable by the Customer within 10 days of receipt of the invoice.
2.4. If the Customer is in default of payment, interest shall be charged on the outstanding amount at a rate of nine percent above the current base rate. Further rights remain unaffected by this.
3. Service provision
3.1. We shall perform the services as specified in the Offer. Unless specific performance times have been agreed separately, we will use our reasonable discretion to determine when we provide our services to the Customer.
3.2. Unless explicitly stated otherwise in the Offer, we select the software and tools necessary for provision of the service ourselves at our own discretion. One Data is not obligated to use the Customer’s own tools or software.
3.3. Unless separately agreed, we will use our reasonable discretion to determine where we will provide our services.
3.4. Unless expressly stated otherwise in the Offer, the start date set in the Offer is non-binding. If a specific performance date (delivery date) has been expressly agreed and we are unable to perform on time and this failure to meet the delivery date is due to force majeure or other disruptions beyond our control, e.g. war, terror, strike, import or export restrictions, including disruptions affecting subcontractors, the delivery dates shall be postponed by the duration of the disruption. This also applies to industrial action affecting us or a subcontractor. We will immediately inform the customer of any occurrence of force majeure.
We are entitled, at our own discretion, to engage subcontractors for the provision of services.
5. Duty to cooperate
5.1. The Customer is obliged to cooperate fully with us and to support provision of the service. Any additional effort or delay caused by the Customer (e.g. delayed data procurement) that holds up the project process and causes possible idle time at One Data will be charged as working time. We will make reasonable efforts to use resources intended for the Customer project for other projects in order to avoid idle times in accordance with Clause 2. Other income will be deducted from the remuneration for working hours in accordance with Clause 2. If the Customer claims that no reasonable efforts were made as per Clause 3, the Customer shall bear the burden of proof in this regard.
5.2. The Customer must ensure that One Data resources can access relevant data sources and systems in a secure and efficient manner (e.g. via VPN tunnel).
6. IP rights
6.1. Insofar as One Data must access and/or process the Customer’s IT systems (including software applications) for the provision of its services, the Customer grants One Data the non-exclusive, non-transferable right of use and processing, limited in time to the necessary duration of the service provision, limited in content to the necessary scope and to the purpose of the service, insofar as this is necessary for the agreed services.
6.2. One Data remains the sole material owner of One Data software (esp. One Data) as of all further developments of One Data software. Use of One Data is governed exclusively by the terms of the Offer and the One Data software license terms. If One Data provides new program versions within the framework of this contract, One Data grants the client the rights to the new program versions that existed for the previous version of the One Data software. The client’s rights to the previous version expire to this extent, whereby storage for archiving and backup purposes remains permissible.
6.3. For software developments on behalf of the Customer that are not a new program version of One Data software (termed “individual software”), One Data grants the Customer – unless expressly agreed otherwise – a non-exclusive right of use unlimited in time, space and content for the fulfillment of the contractual purposes.
6.4. For other work results from One Data that are not software developments, including jointly developed data and processes, the Customer receives the non-exclusive, transferable, permanently or temporarily sub-licensable, permanent, irrevocable right, without any restriction of location, to use these work results in modified, translated, edited or redesigned form for own operational purposes.
6.5. The Customer will not receive exclusive rights of use to components of software developments or other work results – which One Data or a third party has developed prior to and/or independently of this contract – under any circumstances.
7. Liability, damages
7.1. One Data is only liable within the scope of this contract in accordance with the following Clauses: 7.1.1 to 7.1.5:
7.1.1. One Data is liable without limitation for losses caused intentionally or by gross negligence by One Data, its legal representatives or senior executives, as well as for losses caused intentionally by other vicarious agents.
7.1.2. One Data is liable without limitation for death, personal injury or damage to health resulting from the intent or negligence of One Data, its legal representatives or agents.
7.1.3. One Data is liable, up to the amount covered by the purpose of the warranty that was foreseeable to One Data at the time the warranty was issued, for losses incurred as a result of the lack of guaranteed features.
7.1.4. One Data is liable in case of product liability as per German product-liability law; the same applies to otherwise mandatory legal provisions.
7.1.5. One Data is liable for losses caused by the breach of cardinal obligations by One Data, its legal representatives or agents. Cardinal obligations include basic obligations that constitute the essence of this Agreement that were decisive for the conclusion of this Agreement and on the fulfillment of which the Customer relies and may rely on. If One Data breaches its cardinal obligations through simple negligence, its liability is limited to the amount that could have been foreseen by One Data at the time of the provision of the relevant service.
7.2. One Data is liable for loss of data only up to the amount of typical recovery costs that would have been incurred if proper and regular data backup measures had been taken.
7.3. The Customer is solely responsible for (i) verifying the results generated by the use of the licensed software, (ii) verifying the data he/she uses within the licensed software. The Customer indemnifies One Data against all claims for damages in connection with the use of the licensed software or the results generated thereby by the Customer.
7.4. Any more extensive liability on the part of One Data is excluded in principle.
One Data and the Customer undertake to ensure the protection of proprietary and/or confidential information (hereinafter “Confidential Information”) disclosed or made available between the parties under this Agreement.
8.1. Subject to the restrictions set out in Section 8.3 of this Agreement below, all information disclosed to each other by the parties shall be treated as confidential. For the purposes of this Agreement, confidential information shall include, in particular, business, employee and customer data of the parties, products, manufacturing processes, know-how, trade secrets, business relationships, business strategies, business plans, financial planning, personnel matters, regardless of their form and the medium on which they are contained.
8.2. The parties undertake to, and mutually assure each other that they will:
8.2.1. Treat Confidential Information confidentially and with reasonable care;
8.2.2. Use Confidential Information solely for the purposes for which it was contractually provided; and
8.2.3. Reproduce Confidential Information only to the extent necessary and in furtherance of the purposes set forth in this Agreement, and all such reproductions shall also be deemed Confidential Information.
8.3. For the purposes of Section 8.1 herein, Confidential Information shall not include any information the covered party that received the information in question can demonstrate that:
8.3.1. It is generally known to the public at the time of disclosure or becomes generally known without malfeasance on the part of the party concerned;
8.3.2. It becomes known to the affected party through a disclosure from sources other than the other party or their affiliates and such other source is not subject to any duty of confidentiality, directly or indirectly, to the other party with respect to such information and is legally authorized to disclose such information;
8.3.3. The Confidential Information was obtained independently and without breach of any duty of confidentiality.
8.4. Either party may disclose Confidential Information if such party is required to make such disclosure under applicable law or governmental regulation, in which case the relevant party shall have given prior written notice to the other party and shall take reasonable and lawful steps to avoid the disclosure and/or minimize the extent of the disclosure.
8.5. Each party shall provide the Confidential Information to its employees or consultants only when consistent with the contractual purpose of this Agreement.
8.6. The Customer undertakes to keep confidential information pertaining in particular to the performance, design, functionality or functions of the software.
9. Data protection
9.1. The parties shall comply with applicable data-protection regulations, in particular the European General Data Protection Regulation.
9.2. One Data shall
9.2.1. process the Customer’s personal data only as instructed by the Customer, unless (i) the personal data must be processed for the performance of the Agreement, (ii) the personal data must be processed for the purpose of monitoring and measuring the use of the services, such as to enable efficient use of resources vis-à-vis the Customer, or (iii) One Data is authorized by law to process the personal data for any other reason;
9.2.2. ensure that One Data takes appropriate technical and organizational measures to protect personal data from unauthorized and unlawful access;
9.2.3. conclude a commissioned data-processing agreement with the Customer if said data-processing is necessary in the individual case according to the law or the purpose of the Agreement.
9.3. One Data is entitled to perform analyses based on information obtained during the execution of the Agreement. The data shall be anonymized and aggregated for these analyses. The data in such analyses may be used to improve products, optimize resource use, and research and develop new products; to improve results and test data security and integrity; and for data products such as industry trends and anonymous benchmarking.
10. Term and termination
10.1. Unless otherwise specified in the Offer, this Agreement is concluded for an indefinite period. To avoid ambiguities, it is clearly stated here that the Agreement is limited to the scope, man-days and quantity structure specified in the Offer.
10.2. The right to terminate the Agreement for good cause remains unaffected. Good cause shall be deemed to exist in particular:
10.2.1. In the event of misconduct or other influenceable behavior (e.g. breach of contract) on the part of the other party, extraordinary termination is only permissible if (i) the misbehaving party has been warned with at least two weeks’ notice, stating the reason for termination, and (ii) the misconduct has not been remedied.
10.2.2. If (a) a petition has been filed under any insolvency law by or against any Customer assets, or (b) the Customer enters into a debt-settlement agreement with their creditors, or (c) a receiver is appointed over the assets of the Customer, or (d) the Customer is insolvent or over-indebted or seeks protection under any insolvency law, or the Customer ceases to make payments.
10.3. Termination of the Agreement must be in writing (delivery of a signed document by mail or email is sufficient).
11. Validity precedence
In the event of contradictions, the following documents shall have precedence in descending order of validity:
(a) The Offer;
(b) Any confidentiality agreement concluded between the Customer and us
(c) These Service Terms;
(d) The law.
12. Applicable law and place of jurisdiction
12.1. This Agreement is subject to the laws of the Federal Republic of Germany with the exception of the UN Convention on Contracts for the International Sale of Goods of 11.4.1980.
12.2. The location of One Data’s registered office is the exclusive place of execution and jurisdiction for all disputes arising from and in connection with this Agreement, provided that the Customer is a merchant within the meaning of the German Commercial Code or if the Customer does not have a registered office or a regular place of business in the Federal Republic of Germany at the beginning of the dispute.
13. Final provisions
13.1. The Customer is only entitled to transfer rights and obligations from or in connection with this Agreement to third parties with the prior written consent of One Data.
13.2. The Customer is only entitled to offset if the Customer’s counterclaim is recognized, undisputed or legally established. The Customer is only entitled to exercise rights of retention if such rights are based on the same contractual relationship.
13.3. If any provision of this Agreement is or becomes invalid, this shall not affect the validity of the remaining terms. In this case, the parties are obliged to reach an agreement that is legally valid and comes closest economically to the intention of the invalid provision. The foregoing provision shall apply mutatis mutandis in the filling of gaps in this Agreement.
13.4. The Customer’s general terms and conditions shall not apply even if one of the parties expressly refers to them.
Version March 2021.