1. Scope of the Agreement
1.1. ONE LOGIC GmbH (hereinafter “ONE LOGIC”, “us” or “we”) has agreed with you (“Customer”) in one or more separate documents between the parties (the “Offer”) specifying the individual conditions to render services to Customer subject to these terms and conditions. These terms and conditions (the “Service T&C”) constitute, together with the Offer and its annexes, a legal service agreement (hereinafter “Agreement”) between ONE LOGIC and the Customer.
1.2. Oral agreements before or at the time when the Agreement was concluded shall require confirmation by us in writing or via email to be effective.
1.3. We are rendering our services on a non-exclusive basis, i.e. we are at any times entitled to perform services for any other customer.
2. Prices and Payment Terms
2.1. Prices are as specified in our Offer. Our prices are calculated on a time and material basis. Our staff is calculated on daily rates if not specified otherwise in the Offer. One working day consists of 8 hours. Additional expenses (if any) e.g. for accommodation, travel and allowances will be charged separately.
2.2. In the absence of any special agreement, taxes need to be added up to the prices stipulated in our offer.
2.3. Our services will be invoiced on a monthly basis and are payable within 10 days after Customer’s receipt of our invoice.
2.4. 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.
3. Performance of Services
3.1. We will perform the services as described in our Offer. In the absence of a specific agreement with regard to the time of performance we will within our reasonable discretion decide about the time we render our services to our Customer.
3.2. If not expressly provided for in the Offer otherwise, we will choose the software and tools for rendering our services at our sole discretion. ONE LOGIC is not obliged to use any software or other tools of the Customer.
3.3. If not specifically agreed we are entitled within our reasonable discretion where, i.e. at what place, we render our services.
3.4. The start date for the services mentioned in the Offer is non-binding if not expressly provided for in the Offer otherwise. If a specific time of performance (delivery date) is expressly agreed upon and we are not able to perform in time and this noncompliance with the delivery date is due to force majeure or to other disturbances beyond our control e.g. war, terrorist attacks, strikes, import or export restrictions, including such disturbances affecting subcontractors, the delivery dates agreed upon shall be extended by the period of time of the disturbance. This also applies to industrial action affecting either us or any of our suppliers.
We are entitled to employ sub-contractors to perform our services at our sole discretion.
5. Obligation to Cooperate
5.1. The Customer is obliged to fully cooperate with us and to support the performance of our services. Any additional efforts or delay in the project caused by the customer (e.g. delayed data delivery) that extend the project effort and potential idle times at ONE LOGIC are considered as working hours. As to idle times pursuant to sentence 2, we shall undertake reasonable efforts to use the resources allocated to that project for other projects during the idle times. We shall deduct from its remuneration pursuant to sentence 2 the value of the alternative work. The customer has the burden of proof if the customer claims that we have failed to undertake reasonable efforts pursuant to sentence 3.
5.2. The customer must ensure that ONE LOGIC resources can access the relevant data sources and systems in a secure and effective way (e.g. via VPN connection).
6. IP Rights
6.1. As far as ONE LOGIC needs to access or modify IT-systems (including without limitation software applications) of the Customer to be able to render its services, Customer grants to ONE LOGIC the non-exclusive non-transferable right to use and modify such software limited to the time, purpose and scope of the contractual services.
6.2. ONE LOGIC shall remain the sole legal owner of the ONE LOGIC software (especially without limitation ONE DATA) including without limitation all further development of such software. Any use of ONE DATA shall be limited to the conditions of the Offer and the ONE DATA software terms and conditions. As far as ONE LOGIC deploys new versions of such ONE LOGIC software in connection with the rendering of the contractual services, ONE LOGIC grants to Customer the same rights as granted for the former versions deployed with the Customer. The rights to the former versions shall become null and void to such extent; copies for archive data back-up purposes remain admissible.
6.3. As far as not expressly provided for in the Offer otherwise, ONE LOGIC grants to Customer the non-exclusive, worldwide and perpetual right to use the software developed to order of the Customer which is not a new version of the ONE LOGIC software (i.e. “individual software”) for the contractual purposes.
6.4. ONE LOGIC grants to Customer the non-exclusive, worldwide and perpetual right to use and transfer, whether temporarily or perpetually, whether amended, translated, processed or otherwise modified form for its own internal business purposes all other results of the services, which are no software developments, including the data and processes mutually generated.
6.5. Under no circumstances shall Customer acquire any rights regarding parts of software developments or other work results, which have been developed by ONE LOGIC or any third party prior to or independently of this Agreement.
7. Liability, Damages
7.1. ONE LOGIC shall be liable under the terms of the Agreement only in accordance with the provisions set out under Sections 7.1.1 to 7.1.5 below:
7.1.1. 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.
7.1.2. 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.
7.1.3. 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.
7.1.4. ONE LOGIC shall be liable in accordance with the German Product Liability Act in the event of product liability.
7.1.5. 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.
7.2. 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.
7.3. 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.
7.4. Any more extensive liability of ONE LOGIC is excluded on the merits.
8.1. 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.
8.2. Subject to the limitations set forth in the subsequent Section 9.4, 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.
8.3. The parties undertake and represent to each other:
8.3.1. to handle Confidential Information confidentially and with due care;
8.3.2. to use Confidential Information only for the contractually provided purpose; and
8.3.3. 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.
8.4. As Confidential Information within the meaning of Section 9.2 above shall not be regarded such information of which the concerned party having received the information in question can demonstrate:
8.4.1. 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;
8.4.2. 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;
8.4.3. that the Confidential Information has been independently gained and without infringing of a duty of confidentiality.
8.5. 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.
8.6. 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.
8.7. Customer undertakes to especially keep confidential information regarding the performance, design, functionality or features of the Software.
9. Data Protection
9.1. The Parties shall comply with the relevant applicable provisions of data privacy law in force especially in the European Union.
9.2. One Logic shall:
9.2.1. 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;
9.2.2. ensure that One Logic has suitable technical and organizational measures in place to protect personal data against unauthorized or unlawful processing.
9.2.3. 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.
9.3. 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.
10. Term and Termination
10.1. If not provided otherwise in the Offer, this Agreement shall be concluded for an indefinite period of time. For the avoidance of doubt it is clarified that the Agreement is limited to the scope, man-days and quantity structure described in the Offer.
10.2. The right of extraordinary termination of either party without notice for good cause remains unaffected. Good cause shall be given in particular without limitation:
10.2.1. in case of a misbehaviour or other influenceable or capable behaviour (e.g. breach of contract) of the other party, an extraordinary termination is valid only, if (i) the misbehaving party was threatened in writing with at least 2 weeks’ notice, specifying the cause of termination and (ii) the misbehaviour was not remedied.
10.2.2. for us, if (a) a petition under any bankruptcy law is filed by or against Customer, or (b) Customer executes an assignment for the benefit of creditors, or (c) a receiver is appointed for the Customer’s assets, or (d) the Customer becomes illiquid or insolvent or takes advantage of any insolvency or any similar statute, or Customer generally seizes to pay its debt.
10.3. Any declaration of termination has to be made in writing (letter or e-mail with attached personal signature) to the other party.
11. 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 Service T & C;
(d) the statutory provisions of German law.
12. Governing Law and Jurisdiction
12.1. This Agreement (in particular these Service T & C and our Offer) shall be governed by and construed in accordance with the laws of Germany under exclusion of its rules of conflict of laws and the provisions on the Uniform Law on the International Sale of Goods (CISG).
12.2. Exclusive place of jurisdiction for all disputes arising between the Parties out of or in connection with this Agreement or regarding its validity 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.
13.1. 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.
13.2. 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.
13.3. In the event that one or more provisions of the Agreement (in particular these Service 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.
13.4. Any terms and conditions of the Customer are excluded, even in case one of the Parties makes express reference to it.