Software rental license terms
1. Scope of the license
1.1. One Data has agreed with you (“Customer”) in a separate document between the parties (“Offer”) with individual terms and conditions to grant the Customer a license to use the software specified in the Offer (“Licensed Software”) in accordance with the conditions of these license terms. These license terms (“Rental Terms”), together with the Offer including all attachments, constitute a legal agreement (the “Agreement”) between One Data and the Customer.
1.2. The Licensed Software is the sole property of One Data.
1.3. The Licensed Software includes the object code of the Software and the documentation as defined in the Offer.
2. Granting of rights
2.1. One Data hereby grants the Customer, subject to payment by the Customer in accordance with the terms of the Offer and the terms defined in Section 9 of these Rental Terms, the non-exclusive, time-limited right to use the Licensed Software in accordance with the terms of this Agreement, including its appendices and the Offer. All ownership claims to all data storage media as well as to the documentation handed out remain with One Data until all payments from the Customer have been received in full.
2.2. The Customer is responsible for the use of the Licensed Software and any results obtained therefrom. Furthermore, the Customer is responsible for the compatibility of the Licensed Software with other software, hardware and the functioning of other products in connection with the Licensed Software.
2.3. The Customer is entitled to copy the Licensed Software if this is necessary for the installation of the Licensed Software on a computer system in the immediate possession of the Customer and for the fulfillment of the purpose of this Agreement. The Customer may also copy the Licensed Software if such is necessary for loading, displaying, running, transferring, storing or for system backups of the Licensed Software, but in total only to the extent specified in the Offer with regard to the number of cores, as well as to copy the Licensed Software for security purposes by an authorized person, as specified in § 69d Paragraph 2 UrhG. The Customer shall inform One Data immediately in writing if the number of copies exceeds the number of cores specified in the Offer. The Customer must clearly mark the copy for security purposes with the phrase “Security copy” as well as a copyright notice from One Data.
2.4. The Customer is entitled to alter the Licensed Software if this is necessary for the maintenance or restoration of the agreed functionality of the Licensed Software.
2.5. The Customer is not entitled to decompile the Licensed Software other than in accordance with the conditions of Section 69e (1) Nos. 1 to 3 UrhG and within the restrictions of Section 69e (2) Nos. 1 to 3 UrhG.
2.6. The Customer is not entitled to provide the Licensed Software or copies of the Licensed Software to third parties for the purpose of security backups. In particular, the Customer is not entitled to sell, lease, rent out or otherwise sublicense the Licensed Software or communicate it to the public or make it available to third parties.
2.7. If One Data provides updates (corrections of defects, bug fixes), upgrades (new versions) or other improvements to the Licensed Software and transfers them to the Customer free of charge, all said improvements become part of this Agreement.
3. Core licensing metrics
One Data offers the Licensed Software with a core license metric that is calculated by adding up all (virtual or physical) processor cores on which the Licensed Software is installed and/or running. The Customer’s internal users, external consultants or contractors may access the Licensed Software. The number of required licenses is determined by the maximum number of cores the Licensed Software has installed in a month. The minimum number of licensed cores is 8.
4. Right to test
The Customer agrees to permit One Data or One Data’s designee, upon One Data’s request, to audit whether the Customer’s use of the Licensed Software is in compliance with the rights granted to the Customer under this Agreement, provided there is a legitimate interest in such audits. The Customer further agrees to cooperate fully with One Data or its designee in conducting any such audit. If the Customer uses more copies of the Licensed Software than the number to which the Customer is entitled under this Agreement and the Offer, the Customer shall pay the full license fee as set forth in the applicable price list for the period beginning on the effective date of this Agreement, without discount for such excess use. The Customer is entitled to prove a shorter period of excessive use.
5. Right of withdrawal
If the Customer violates at least one of the above provisions, One Data may withdraw from granting the rights granted to the Customer under this Agreement with immediate effect. In this case, the Customer is obligated to immediately and completely discontinue the use of the Licensed Software, to delete all copies of the Licensed Software installed on its systems and, if applicable, to delete copies of the Licensed Software made for security backup purposes or, at its option, to hand them over to One Data.
6. Rights to the Licensed Software
The Customer acknowledges that he/she alone is granted the right to use the Licensed Software in accordance with this Agreement and that he/she is granted no other rights or title. One Data retains all rights in the Licensed Software not expressly granted under this Agreement. One Data retains all rights, title and interest in and to the Licensed Software (including, without limitation, any improvements suggested by the Customer or resulting from the Customer’s use of the Licensed Software) and any other inventions, developments, improvements, algorithms or formulas.
7. Use of third-party software
The installation and use of the Licensed Software may require the use of other components or other third-party software (e.g., Hadoop Spark, etc.) (“Third Party Software”) as it may be the case that the Licensed Software will not function without such Third Party Software. Any known software dependencies will be communicated to the Customer in advance.
8. Delivery and installation of the licensed product
8.1. One Data shall deliver to the Customer that number of copies of the Licensed Software required for the exercise of the rights of use under this Agreement in machine-readable form, at One Data’s discretion either on a data-storage device in common use at the time or by remote data transmission. The Customer receives the software documentation as an electronic document. The parties agree that One Data’s registered office is the place of performance for the delivery of the Licensed Software. The Customer bears all costs and risks in connection with such delivery. In case of transfer of the software, the transport risk (especially the risk of accidental loss or accidental destruction) of the copies of the Licensed Software is born by the Customer.
8.2. The Licensed Software is to be installed by the Customer. The Customer must inform One Data in writing of the respective installation locations of the copies of the Licensed Software. This also applies to later changes of installation locations.
8.3. All copies of the Licensed Software remain the sole property of One Data. In the event of breach of this Agreement by the Customer, in particular in the event of default in payment, One Data is entitled to demand, at the Customer’s expense, that the Customer return all copies of the Licensed Software to which One Data has retained title, retain no copies of the Licensed Software, and that all installations of the Licensed Software be irretrievably deleted from the Customer’s systems. Upon One Data’s request, the Customer must confirm the return and deletion in writing.
9. License fees and number of licenses
9.1. The license fees owed by the Customer to One Data for granting rights under this Agreement are set forth in the Offer. If the Agreement is not entered into on the first day of a calendar month and the Offer does not specify otherwise, the amount of the license fee for the first month of the Agreement will be prorated according to the remaining days of the calendar month (i) from the day after delivery of the first copies of the Licensed Software or (ii) in the case of Licensed Software downloadable from the internet, from the day after notification of and release of the login credentials for the download area of the Licensed Software. In the first month of the Agreement, the License Fees are payable upon full delivery/notification and release of the Licensed Software.
9.2. The Customer shall notify One Data, on a monthly basis, of the number of required cores, without prior notice from One Data and without delay.
9.3 The license fees are due and payable in accordance with the terms of the Offer. One Data will invoice the Customer for the license fees in accordance with the payment schedule contained in the Offer. Invoices are payable as set forth in the Offer.
9.4. All prices are in Euro.
9.5. All amounts stated in the Offer are exclusive of applicable sales taxes, unless expressly stated otherwise. The current statutory sales-tax rate will be invoiced and paid by the Customer in addition to all fees. One Data must show the price and the sales tax amount separately on the invoice.
9.6 If the Customer is in default of payment, interest will be charged on the outstanding amount at a rate of nine percent (9%) above the current base interest rate. Other rights remain unaffected by this.
10. Remedying defects
10.1. The Licensed Software and its functions provided by One Data shall, during the agreed term, be substantially in accordance with the documentation and system environment actually provided and be usable in accordance with such documentation and system environment.
10.3. Rights in the event of defects in the Licensed Software are excluded in the case of minor or insignificant deviations from the agreed or assumed features as well as in the case of slight impairment of use. Product descriptions shall only be deemed guaranteed if they have been agreed in writing. With respect to updates, upgrades and other improvements, the Customer’s rights in the case of defects shall be limited to the new features of the update, upgrade or new version compared to the previous published version.
10.4. Rights in the event of defects in the Licensed Software are excluded in the event of defects based on the following: (i) use of the Licensed Software in a hardware and/or software environment that does not meet the requirements of the Offer; or (ii) changes or modifications to the Licensed Software made by the Customer without having been authorized by law, this Agreement, or other prior written authorization from One Data to make such changes or modifications to the Licensed Software.
10.5. One Data does not provide any warranty for defects, malfunctions or losses as a result of (i) the Customer’s inappropriate handling of the Licensed Software, (ii) defects in the Customer’s system environment.
10.6. Defects must be promptly reported in writing. Such reports shall include a full description of the symptoms of the defect and the defects shall be substantiated to the maximum extent possible by written records, hard copies, or other documents demonstrating such defects. The report of the defect should permit reproduction of the defect. This does not affect the Customer’s legal obligation to inspect and report defects. The Customer shall use all reasonable efforts to search for and correct the defects. If One Data determines that One Data is not liable for the alleged defect in the Licensed Software because the defect is due to input errors or inappropriate use of the Licensed Software or to the hardware used, One Data shall be entitled to recover from the Customer a reasonable amount of money to cover the time and expenses incurred by personnel and data processors that were required to inspect the alleged defect.
10.7. If the Customer requests the remedying of a defect during the term of this Agreement, One Data is entitled to choose between rectification of the defect, replacement delivery or replacement service. The remedying of the defect can also take place via the delivery or installation of a new program version or a temporary solution. If the defect does not or not significantly affect functionality, One Data is entitled, excluding further rights in the case of defects, to rectify the defect by delivering a new version or an update as part of its version, update and upgrade planning.
11. Third-party claims
11.1. Should third parties claim rights to the Licensed Software and pursue them, One Data must do everything in its power to defend the Licensed Software at its own expense against the claimed rights of third parties. The Customer must immediately inform One Data in writing of the claim to such rights by third parties and must grant One Data all powers of attorney and authorizations necessary to defend the Licensed Software against the claimed rights of third parties.
11.2. In the event of defects in title, One Data shall be entitled, at its discretion, to either (i) take legitimate measures to eliminate the rights of third parties that interfere with the contractual use of the Licensed Software, or (ii) remedy the enforcement of such claims, or (iii) modify or replace the Licensed Software in a manner that no longer infringes the rights of third parties, provided and to the extent that this does not interfere with the warranted functionality of the Licensed Software.
12. Liability, damages
12.1. One Data is liable under this Agreement only as specified in the terms set forth in Sections 12.1.1 through 12.1.5 below:
12.1.1. One Data is liable without limitation for losses caused intentionally or by gross negligence on the part of One Data, its legal representatives or senior executives, as well as for losses caused intentionally by other vicarious agents.
12.1.2. One Data is liable without limitation for death, personal injury or damage to health resulting from the intent or negligence on the part of One Data, its legal representatives or agents.
12.1.3. 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.
12.1.4. One Data is liable in the event of product liability according to German product-liability law.
12.1.5. 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. 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.
12.2. One Data is liable for the 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.
12.3. The Customer is solely responsible for (i) verifying the results generated by the use of the Licensed Software, and (ii) verifying the data he/she uses in 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.
12.4. Any more comprehensive liability on the part of One Data is excluded in principle. One Data is in particular not liable for initial defects if the above sections 12.1.1 to 12.1.5 do not come into effect.
13. Security measures
13.1. The Customer must protect the Licensed Software and the login data from unauthorized access by third parties by means of appropriate security measures. In particular, all copies of the Licensed Software and the login data must be stored in a safe place.
One Data and the Customer agree to ensure the protection of proprietary and/or confidential information (hereinafter “Confidential Information”) disclosed or made available between the parties under this Agreement.
14.1. Subject to the restrictions specified in Section 10.3 of this Agreement, all information disclosed between the parties shall be treated as confidential. For the purposes of this Agreement, Confidential Information shall include, in particular, business, employee and customer data belonging to the parties, products, manufacturing processes, know-how, trade secrets, business relationships, business strategies, business plans, financial planning, and personnel matters, regardless of their form and the medium on which they are contained.
14.2. The parties undertake and mutually assure each other that they will:
14.2.1. Treat Confidential Information confidentially and with reasonable care;
14.2.2. Use Confidential Information solely for the purposes for which it was contractually provided; and
14.2.3. Reproduce Confidential Information only to the extent necessary and in furtherance of the purposes set forth in this Agreement. All such reproductions shall also be deemed Confidential Information.
14.3. For purposes of Section 10.1 hereof, Confidential Information shall not include any information the relevant party in receipt of such information can demonstrate:
14.3.1. Is generally known to the public at the time of disclosure or becomes generally known without malfeasance on the part of the party concerned;
14.3.2. Becomes known to the relevant party through disclosure from sources other than the other party or its 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;
14.3.3. That the Confidential Information was obtained independently and without breach of any duty of confidentiality.
14.4. 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 must have given prior written notice to the other party and must take reasonable and lawful steps to avoid the disclosure and/or minimize the extent of the disclosure.
14.5. Each party shall provide the Confidential Information to its employees or consultants only if doing so is consistent with the contractual purpose of this Agreement.
14.6. The Customer undertakes to keep confidential in particular information concerning the performance, design, functionality or functions of the Software.
15. Data protection
15.1. The parties shall comply with the applicable data protection regulations, in particular the European General Data Protection Regulation.
15.2. One Data shall:
15.2.1. 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;
15.2.2. Ensure that One Data takes appropriate technical and organizational measures to protect personal data from unauthorized and unlawful access;
15.2.3. 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.
15.3. One Data is entitled to perform analyses based on information obtained during the execution of the Agreement. The data must 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.
16. Term and termination
16.1. The Agreement is concluded for an indefinite period. Either party may terminate the Agreement at the end of a quarter of the calendar year, subject to six weeks’ notice, with earliest effect at the end of the quarter one year after conclusion of the Agreement.
16.2. The right to terminate this agreement for good cause remains unaffected. Good cause, which entitles One Data in particular to terminate the Agreement, exists if the Customer violates the rights of use granted by One Data by using the Licensed Software beyond the provisions of this Agreement and the Offer and does not remedy the violation within a reasonable period of time after a warning from One Data.
16.3. The termination of the Agreement must be in writing.
16.4. In the event of termination of the Agreement, the Customer shall cease use of the Licensed Software, remove all installed copies of the Licensed Software from its computers, and, if applicable, destroy or surrender to One Data copies of the Licensed Software made for security backup purposes, at One Data’s discretion.
17. 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 Rental Terms;
(d) the law.
18. Final provisions
18.1. These Rental Terms and the applicable Offer constitute the entire Agreement and understanding between the parties and supersede all prior oral and written agreements, discussions and understandings between the parties relating to the subject matter herein, and neither party shall be bound by any terms and conditions, inducements or assurances except as expressly set forth in this Agreement. No modification of or amendment to this Agreement shall be effective unless in writing. This also applies to any changes to said written-form requirement. This clause shall not apply if an oral agreement is concluded between the parties after this Agreement has come into force.
18.2. 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.
18.3. 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.
18.4. 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.
18.5. 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.
18.6. Should any provision of this Agreement be or become invalid, this shall not affect the validity of the remaining provisions. 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 to filling any gaps in this Agreement.
18.7. The Customer’s general terms and conditions shall not apply even if one of the parties expressly refers to them.
Version: May 2019.