1. Scope of the License
1.1. ONE LOGIC GmbH (“ONE LOGIC”) has agreed with you (“Customer”) in a separate document between the parties (the “Offer”) specifying the individual conditions to grant Customer a license to use the software set out in the Offer (“Licensed Software”) subject to these terms and conditions. These terms and conditions (the “Lease T&C”) constitute, together with the Offer and its annexes, a legal agreement (the “Agreement”) between ONE LOGIC and the Customer.
1.2. The Licensed Software is the exclusive property of ONE LOGIC.
1.3. The Licensed Software comprises the object code of the software and the documentation in accordance with the Offer.
2. Grant of Rights
2.1. ONE LOGIC grants subject to the payment of Customer pursuant to the conditions of the Offer and to Section 9 of these Lease T&C to Customer the non-exclusive, timely limited right to use the Licensed Software subject to the terms and conditions of the Agreement. ONE LOGIC retains title to all data storage media as well as the handed over documentation until receipt of all payments of Customer in full.
2.2. Customer is responsible for the use of the Licensed Software and the results thereof. Customer is further responsible for the compatibility of the Licensed Software with other software, hardware and performances in connection with the Licensed Software.
2.3. Customer is entitled to copy the Licensed Software insofar as it is necessary for the installation of the Licensed Software on a computer system which is in Customer’s immediate possession and to fulfill the purpose of this Agreement and insofar as it is required for the loading, display, running, transfer, storage or system backup of the Licensed Software, in total to the extent as specified regarding the number of cores in the Offer as well as to copy the Licensed Software for security purposes by an authorized person, as stated in sec. 69d para. (2) UrhG (German Copyright Act). Customer will notify ONE LOGIC without undue delay in writing in case that the number of copies exceeds the amount of cores as specified in the Offer. Customer will apparently label the copy for security purposes with the notation “Security Copy” as well as with a copyright notice of ONE LOGIC.
2.4. Customer is entitled to revise the Licensed Software insofar as it is necessary for the maintenance or reinstatement of the agreed functionality of the Licensed Software.
2.5. Customer is not entitled to decompile the Licensed Software under other terms than those of sec. 69e para. (1) nos. 1 to 3 UrhG within the limits of sec. 69e para. (2) nos. 1 to 3 UrhG.
2.6. Customer is not entitled to provide the Licensed Software or copies of the Licensed Software for security backup purposes to third parties. Customer is especially not entitled to sell, lease, rent or otherwise sublicense the Licensed Software or to communicate it to the public or make it accessible to third parties.
2.7. As far as ONE LOGIC provides updates (corrections of defects, bug-fixes), upgrades (new versions), or other improvements of the Licensed Software and conveys them free of charge to Customer all of the aforementioned improvements will become part of the Agreement.
3. Core License Metric
ONE LOGIC offers the Licensed Software with a core license metric, which is accounted for by summing up all processor cores (virtual or physical whichever applies) on which the Licensed Software is installed and/or running. The Licensed Software may be accessed by Customer’s internal users, external consultants or contractors. The number of required licenses is determined by the maximum number of cores the Licensed Software installed in a given month. The minimum core number to be licensed is 8.
4. Audit Right
Customer undertakes to allow ONE LOGIC or an agent of ONE LOGIC to audit whether Customer’s use of the Licensed Software is consistent with the rights granted to Customer herein upon request by ONE LOGIC and provided there is a legitimate interest therein and to give full co-operation to ONE LOGIC or its agent carrying out such audit. In case that Customer uses more copies of the Licensed Software than he is entitled to pursuant to this Agreement and the Offer, Customer shall pay the full license fee and the full maintenance fee according to the respectively relevant Price List without discount for this exceeding use for the period beginning from the effective date of this Agreement. Customer is entitled to prove a shorter term of the exceeding use.
5. Withdrawal of the Grant of Rights
If Customer breaches at least one of the aforementioned provisions ONE LOGIC is entitled to withdraw all of the granted rights to Customer pursuant to this Agreement immediately. In this case Customer is obliged to cease the usage of the Licensed Software without undue delay and completely, to delete all of the copies of the Licensed Software that was installed on his systems as well as, if applicable, to delete all copies made of the Licensed Software for security backup purposes or to hand them over to ONE LOGIC at its sole discretion.
6. Rights to the Licensed Software
Customer acknowledges that he only acquires the right to use the Software pursuant to the Agreement and does not acquire any other rights or ownership interests. ONE LOGIC reserves all rights to the Licensed Software not expressly granted under the Agreement. ONE LOGIC will retain all right, title, and interest in and to the Licensed Software, foregoing (including without limitation any improvements suggested by Customer, or by Customer’s usage of the Software), as well as any other invention, development, improvement, algorithm, or formula. Customer especially does not acquire a right to receive free upgrades of the Licensed Software.
7. Usage of Third Party Software
The installation and use of the Licensed Software may require the use of other components or software (e.g., Hadoop Spark, etc.) of third parties (“Third Party Software”), and the Licensed Software may not operate, without this Third Party Software. The known Licensed Software dependencies are communicated to Customer in advance.
8. Delivery and Installation of the Licensed Product
8.1. ONE LOGIC shall deliver the necessary number of copies of the Licensed Software for the exercise of the rights to use to Customer herein in machine readable form at Customer’s option either stored on a specific type of data storage media in common use at the time or transferred by remote data transfer. Customer shall receive the documentation of the Licensed Software as electronic document in English and one copy of the user manual per copy of the Licensed Software as electronic document in English. The parties agree ONE LOGIC’s registered office as the place of performance for the delivery of the Licensed Software. Customer shall bear all costs and risks related to such delivery. Upon transfer of the Licensed Software, the risk of transportation (particularly the risk of accidental loss or destruction) of the copies of the Licensed Software passes to Customer.
8.2. The Licensed Software shall be installed by Customer. Customer must notify ONE LOGIC in writing of the respective installation locations of the copies of the Licensed Software. This shall also apply to any later change of installation locations.
8.3. All copies of the Licensed Software remain in the sole ownership of ONE LOGIC. Upon breach of the Agreement by Customer, in particular in default of payment, ONE LOGIC shall be entitled to request at Customer’s expense the return of all copies of the Licensed Software in which ONE LOGIC has retained ownership, retain no copies of the Licensed Software, and irrevocably delete all installations of the Licensed Software from Customer’s systems. Customer shall confirm such return and deletion in writing upon ONE LOGIC’s request.
9. License Fees and Numbers of Licenses
9.1. The license fees owed by Customer to ONE LOGIC for the grant of rights hereunder are set forth in the Offer. The license fees are due on a monthly basis. If the Agreement is not concluded at the first day of a calendar month and it is not otherwise agreed in the Offer, the license fee amount for the first month of the Agreement is owed pro rata to the remaining days of the calendar month beginning with the day after (i) the delivery of the first copies of the Licensed Software or (ii) in case the Licensed Software can be downloaded from the internet, the notification and clearing of the login credentials for the download area of the Licensed Software.
9.2. The number of needed cores is reported on a monthly basis by Customer to ONE LOGIC without prior notice from ONE LOGIC and without undue delay.
9.3. Invoices are payable as set forth in the Offer. ONE LOGIC will invoice the license fees to Customer in accordance with the payment schedule set forth in the Offer. If not otherwise agreed in the Offer the license fees are due for payment for each month at the third working day of each month in advance. In the first month of the Agreement the license fees are due upon complete delivery/notification and clearing of the Licensed Software.
9.4. All prices are given in Euro.
9.5. All amounts stated in the Offer are excluding any applicable Value Added Tax, unless explicitly stated otherwise. The current rate of statutory Value Added Tax shall be invoiced and paid in addition to all fees by Customer, if applicable. ONE LOGIC shall state the rate and amount of Value Added Tax separately on the invoice.
9.6. If Customer is in default of payment, the outstanding amount shall bear interest at the rate of nine percent above the then current basic rate of interest. This shall not affect any more extensive rights.
10. Remedy in case of Defects
10.1. The Licensed Software and its functions provided by ONE LOGIC shall be substantially in accordance and usable with the actually released documentation and the actually released system environment during the agreed term.
10.2. A defect of the Licensed Software only exists if the Licensed Software is not in conformity with the commonly known documentation that was valid at the time of conclusion of the Agreement although the Licensed Software is used within the disclosed conditions of use.
10.3. Rights in case of defects of the Licensed Software shall be excluded in the case of minor or immaterial deviations from the agreed or assumed characteristics nor in the case of just slight impairment of use. Product descriptions shall not be deemed guaranteed unless separately agreed in writing. In respect of updates, upgrades and other improvements, Customer’s rights in case of defects shall be limited to the new features of the update, upgrade or new version compared to the previous version release.
10.4. Rights in case of defects of the Licensed Software shall be excluded in the case of defects that are based on (i) the usage of the Licensed Software in a hard- and/or software environment that does not comply with the requirements in the Offer or (ii) amendments or modifications of the Licensed Software done by Customer without having the right to amend or modify the Licensed Software by law, this Agreement or other prior written approval by ONE LOGIC.
10.5. ONE LOGIC does not warrant for defects, disruptions or losses arising of (i) improper treatment of the Licensed Software of Customer, (ii) defects of the system environment of Customer.
10.6. Defects must be notified without undue delay in writing with a comprehensive description of the error symptoms, as far as possible evidenced by written recordings, hard copies or other documents demonstrating the defects. The notification of the defect should enable the reproduction of the error. This shall not affect the statutory obligation of Customer to inspect and notify defects. Customer shall take all reasonable efforts to search and correct the defects. In case ONE LOGIC finds out that it is not liable for the supposed defect of the Licensed Software because the defect bases on type errors, on improper usage of the Licensed Software or on the used hardware, ONE LOGIC is entitled to demand a reasonable cash remuneration from Customer that covers the time and expenses of personnel and data processor that was necessary to check the supposed defect.
10.7. If Customer demands remedy because of a defect during the term of this agreement, ONE LOGIC has the right to choose between the improvement (Nachbesserung), replacement delivery (Ersatzlieferung) or replacement of services (Ersatzleistung). The remedying of the defect may also take place through the delivery or installation of a new program version or a workaround. If the defect does not or not substantially impair the functionality, then ONE LOGIC is entitled, to the exclusion of further rights in case of defects, to remedy 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. If third parties claim rights to the Licensed Software and they pursue these, then ONE LOGIC shall do everything in its power, in order to defend the Licensed Software at its own expense against the third party claims. Customer shall inform ONE LOGIC in writing without delay of the claiming of such rights by third parties and shall give ONE LOGIC all powers of attorney and authorizations which are necessary in order to defend the Licensed Software against the third party rights claimed.
11.2. To the extent that there are defects in title, ONE LOGIC is entitled at its sole discretion to either (i) take legitimate measures to remove the third party rights, which impair the contractual use of the Licensed Software, or (ii) remedy the enforcement of such claims, or (iii) change or replace the Licensed Software in such a manner, that it no longer infringes the rights of third parties, provided and to the extent that this does not substantially impair the warranted functionality of the Licensed Software.
12. Liability, Damages
12.1. ONE LOGIC shall be liable under the terms of the Agreement only in accordance with the provisions set out under Sections 12.1.1 to 12.1.5 below:
12.1.1. ONE LOGIC shall be unrestrictedly liable for losses caused intentionally or with gross negligence by ONE LOGIC, its legal representatives or senior executives and for losses caused intentionally by other assistants in performance.
12.1.2. ONE LOGIC shall be unrestricted liable for death, personal injury or damage to health caused by the intent or negligence of ONE LOGIC, its legal representatives or assistants in performance.
12.1.3. ONE LOGIC shall be liable for losses arising from the lack of any warranted characteristics up to the amount which is covered by the purpose of the warranty and which was foreseeable for ONE LOGIC at the time the warranty was given.
12.1.4. ONE LOGIC shall be liable in accordance with the German Product Liability Act in the event of product liability.
12.1.5. ONE LOGIC shall be liable for losses caused by the breach of its primary obligations (Kardinalpflichten) by ONE LOGIC, its legal representatives or assistants in performance. Primary obligations are such basic duties which form the essence of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which Customer may rely. If ONE LOGIC breaches its primary obligations through simple negligence, then its ensuing liability shall be limited to the amount which was foreseeable by ONE LOGIC at the time the respective service was performed.
12.2. ONE LOGIC shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken.
12.3. Customer is solely responsible for (i) the checking of the results that are generated by the usage of the Licensed Software, (ii) the checking of data that he uses within the Licensed Software. Customer indemnifies ONE LOGIC of all claims for damages that are connected to the usage of the Licensed Software or the results generated thereof by Customer.
12.4. Any more extensive liability of ONE LOGIC is excluded on the merits. ONE LOGIC shall especially not be liable for initial defects (anfängliche Mängel) as far as Sections 12.1.1 to 12.1.5 of this Agreement are not fulfilled.
13. Security Measures
Customer shall protect Licensed Software as well as the login credentials from unauthorized access through third parties by providing appropriate security measures. Especially all copies of the Licensed Software as well as the login credentials shall be stored in a safe place.
14.1. ONE LOGIC and Customer undertake to assure the protection and preservation of proprietary and/or confidential information (in the following “Confidential Information“) which shall be disclosed or made available between the contractual parties in the framework of this Agreement.
14.2. Subject to the limitations set forth in the subsequent Section 14.4, all information disclosed between the parties shall be handled confidentially. Confidential Information, irrespective of its form and medium in which it is contained, within the meaning of this Agreement shall be regarded in particular: any data, especially of the business, employers and customers of the parties, products, manufacturing processes, know-how, business secrets, business relationships, business strategies, business plans, financial planning, personnel matters.
14.3. The parties undertake and represent to each other:
14.3.1. to handle Confidential Information confidentially and with due care;
14.3.2. to use Confidential Information only for the contractually provided purpose; and
14.3.3. to reproduce Confidential Information only to the extent necessary and to pursue the purposes set forth in this Agreement, with all such reproductions being considered also as Confidential Information.
14.4. As Confidential Information within the meaning of Section 14.2 above shall not be regarded such information of which the concerned party having received the information in question can demonstrate:
14.4.1. is generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the concerned party;
14.4.2. becomes known to the concerned party through a disclosure by sources other than the other party or of one of its affiliates having no duty of confidentiality to the other party, whether direct or indirect, with all respect to such information and having the legal right to disclose such information;
14.4.3. that the Confidential Information has been independently gained and without infringing of a duty of confidentiality.
14.5. Each contractual party may disclose Confidential Information if said party is required to such disclosure according to applicable laws or governmental regulations, provided that the party has submitted prior written notice of such disclosure to the other party and takes reasonable and lawful actions to avoid and/or minimize the extent of the disclosure.
14.6. Each party shall make available the Confidential Information to its employees or consultants only to the extent that this complies with the contractual purpose of this Agreement.
14.7. Customer undertakes to especially keep confidential information regarding the performance, design, functionality or features of the Software.
15. Data Protection
15.1. The Parties shall comply with the relevant applicable provisions of data privacy law in force especially in the European Union.
15.2. ONE LOGIC shall:
15.2.1. process any personal data provided by the Customer only subject to the Customer’s instruction, unless (i) the personal data must be processed to perform the Agreement (ii) the personal data must be processed to monitor and scale use of the services so as to enable efficient allocation of resources to the customer, or (iii) ONE LOGIC is legally entitled for other reasons to process the personal data;
15.2.2. ensure that ONE LOGIC has suitable technical and organizational measures in place to protect personal data against unauthorized or unlawful processing.
15.2.3. conclude an agreement on commissioned data processing with the Customer if this is required in individual cases due to the statutory provisions or the specific subject matter of the Agreement.
15.3. ONE LOGIC shall be permitted to carry out analyses using information obtained by ONE LOGIC through the performance of the Agreement. The data shall be anonymized and aggregated for such analyses. The data in such analyses may be used for improving the quality of products, resource optimization, and research into and development of new products; for improving performance and reviewing data security and integrity; and for data products, such as industry trends and anonymous benchmarking.
16. Duration and Termination
16.1. The Agreement shall be concluded for an indefinite period. It can be terminated by each party at the end of a quarter of the calendar year within a period of six weeks, effective to the earliest at the end of the quarter one year after conclusion of the Agreement.
16.2. The right to terminate the Agreement for good cause remains unaffected. A good cause that entitles ONE LOGIC to terminate the Agreement especially exists in the case that Customer infringes the granted rights of use of ONE LOGIC by using the Licensed Software beyond the provisions of this Agreement and the Offer and does not remedy the infringement within a reasonable time after a warning notice of ONE LOGIC.
16.3. The termination of the Agreement shall be in written form.
16.4. In the case of termination of the Agreement Customer shall cease the use of the Licensed Software, remove all of the installed copies of the Licensed Software from its data processors as well as if applicable at ONE LOGIC’s discretion to delete copies made of the Licensed Software for security backup purposes or to hand them over to ONE LOGIC.
17. Order of Precedence
In case of conflict the following documents shall apply in descending order:
(a) our Offer;
(b) an NDA or other confidentiality agreement, concluded between the Customer and us (if any)
(c) these Lease T&C;
(d) the statutory provisions of German law.
18. Final provisions
18.1. These Lease T&C and the applicable Offer set forth the entire Agreement and understanding between the parties and merges all prior oral and written Agreements, discussions and understandings between the parties with respect to the subject matter thereof, and neither of the parties shall be bound by any conditions, inducements or representations other than as expressly provided for in the Agreement. Amendments or additions to the Agreement must be made in writing to be effective. This shall also apply to amendments of this written form requirement.
18.2. Customer shall be entitled to transfer rights and obligations out of or in connection with this Agreement to third parties only after prior written consent of ONE LOGIC.
18.3. Customer shall be entitled to offset only insofar as Customer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. Customer is entitled to exercise retention rights only to the extent such rights are based on the same contractual relationship.
18.4. This Agreement shall be governed by the laws of the Federal Republic of Germany except for the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods dated 11.4.1980).
18.5. Exclusive place of performance and exclusive place of jurisdiction over all disputes under and in connection with this Agreement is the place of ONE LOGIC’s registered office, provided that Customer is a merchant within the meaning of the German Commercial Code or if upon the commencement of legal proceedings, Customer has no place of business or ordinary residence in the Federal Republic of Germany.
18.6. In the event that one or more provisions of the Agreement (in particular these Lease T&C and our Offer) is or become partly or entirely invalid or unenforceable, the validity and enforceability of the remaining provisions shall not be affected thereby. In such case, the parties shall be obliged to replace the partly or entirely invalid or unenforceable provision with a valid and enforceable provision, which the Parties would have agreed on had they been aware of the invalidity or unenforceability of the respective provision. The same shall apply in the event that this Agreement contains any unintended gaps (unbeabsichtigte Vertragslücken). It is the express intention of the Parties that Section 139 German Civil Code (BGB) shall not apply in its entirety.
18.7. Any terms and conditions of the Customer are excluded, even in case one of the Parties makes express reference to it.