General Terms and conditions Data Quality Express

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Open

Status January 2022

General Terms and Conditions of Omikron Data Solutions GmbH
for
Software as a Service services (Data Quality Express)

§1 Scope of application

The following General Terms and Conditions apply to all services ("subject matter of the contract") provided by Omikron Data Solutions GmbH ("Omikron") in the context of a Software as a Service ("SaaS service") agreed with the respective user ("customer"); the SaaS service is referred to as Data Quality Express. Any conflicting general terms and conditions of the customer, in particular terms and conditions of purchase, are hereby expressly rejected.

§2 Formation of the contract

Offers from Omikron are subject to change and non-binding, unless the offer is designated as binding in writing. A legal commitment is only established by a contract signed by both parties or by receipt of a written order confirmation from Omikron, and also by Omikron providing the access data after the order and starting to provide the service. Our presentation of our SaaS services is not an offer, but a non-binding invitation to the customer to accept an offer to conclude a contract.

§3 Subject matter of the contract

1 Scope of services

The subject matter of the contract is the granting of the option to use the software. The specific functional scope of the software and the SaaS services as well as the requirements for the hardware and software environment that must be met in order for the services to be provided in accordance with the contract are set out in the service description provided prior to the conclusion of the contract. The scope of the SaaS service does not include the provision of the software (on data carriers or by way of online transfer) for local installation, nor does it include the establishment of telecommunications access from the customer's systems to Omikron's systems. Omikron's service ends at the telecommunications interface at Omikron.

2 Storage space

As part of the SaaS services, the customer is provided with storage space on (a) central server(s) not necessarily operated by Omikron, on which the data generated and processed with the software can be stored for the duration of the contractual relationship. The archiving of the data in accordance with the retention periods under commercial and tax law is not included in the scope of services. The customer is responsible for archiving and must take the necessary precautions for this.

3 The access data required for identification and authentication in order to use the software will be communicated to the customer by Omikron by e-mail, usually within five working days of conclusion of the contract. A user account ("Account") is created. The registration of several user accounts (each subject to separate remuneration) is permitted. The transfer of a user account to a third party requires the prior consent of Omikron. The same applies to the transfer of use to third parties. The customer is obliged to keep his access data secret from unauthorized persons, to store them carefully and securely from access by unauthorized persons and to protect them from misuse and loss.

4 The software may only be used by the customer. Employees or other persons authorized by the customer to use the software in accordance with the contract are also entitled to use the software.

5 Omikron generally enables the customer to use the application services seven days a week (24 hours). This does not include the time required for the necessary regular maintenance and care or technical improvement of hardware and software to a reasonable extent after prior notification ("planned downtime"). The planned downtime is already taken into account when calculating the remuneration. The use of the software is only possible on the hardware platforms and their operating system environment(s) supported by Omikron.

6 The availability of the software application is 99.5% per year.

7 Accounts set up for test purposes can be blocked by Omikron at any time without notice.

8 Omikron is entitled to make service changes at any time (e.g. by using newer or other technologies, systems, processes or standards) if this is necessary or advantageous due to technical developments typical for the industry or if the previous technology is no longer available due to technical developments. If the effects of the service change are only insignificant, the fee owed for this shall be adjusted. In the event of significant changes to the service, the customer shall be notified accordingly in good time. If the customer suffers significant disadvantages as a result of the service changes, the customer shall be entitled to extraordinary termination. Notice of termination must be given within two months of receipt of the notification of the service changes.

9 Omikron is entitled to outsource the execution of the application services in whole or in part to third parties. Documents, information and data of the customer may be made accessible to third parties to whom Omikron has permissibly transferred services, insofar as this is necessary for the proper fulfillment of the contractual obligations and within the framework of data protection regulations.

§4 Rights of use and ownership of the transmitted reference data

Omikron grants the customer the non-exclusive, non-transferable and non-sublicensable right to use the software and the associated user documentation ("license") in accordance with this contract for the duration of the contract. The transfer of the software is limited to the use of the software as a SaaS service for retrieval via the Internet. The provision of the software for local installation on the customer's systems (on permanent media or by way of online transfer) is not included. 

§5 Obligations of the customer to cooperate

1 The use of the software is only possible on the hardware platforms supported by Omikron and their operating system environment(s). The customer is obligated to provide all cooperation services required for the performance of Omikron's services in full and in a timely manner at his own expense and under his sole responsibility. The obligations to cooperate include in particular the following: providing a powerful Internet connection, creating the conditions for the use of the application services to the extent communicated by Omikron or to the extent corresponding to the state of the art; the measures for securing customer data and programs (backup), in particular the regular and risk-appropriate creation of backup copies; the use of virus protection programs on the customer's own computer in the latest version.

The customer assumes sole responsibility for the selection of the software and the intended results; information and data originating from him; the devices used by him (hardware and software) and their suitability for data transmission with Omikron; the functionality of his Internet access including the transmission paths.

2 The customer is obliged to observe all applicable laws and other legal provisions when using the software. It is prohibited to transfer data or content to Omikron servers that violate legal regulations or infringe third-party property rights or copyrights or other third-party rights. The customer is responsible for the data and content provided by him.

3 In the event of an error message, the customer is obliged to immediately provide Omikron with all documentation, protocols, sample outputs and other information relevant to troubleshooting that is reasonably accessible to him, unless he would thereby violate applicable law or the priority rights of third parties.

4 In the event that the customer transmits data to the data storage devices provided by Omikron using the functions provided in the software, the customer must make additional backup copies of this data on its own data carriers. Only data that is free of computer viruses or other harmful code may be transmitted.

5 The customer is obliged to use the software as described in the software's user documentation.

6 The customer may not use software or other techniques or procedures in connection with the use of the SaaS services that are likely to impair the operation, security and availability of the platform.

§6 Data blocking

If third parties assert claims against Omikron due to infringement(s) of rights by data or content that the customer has transmitted to the data storage provided by Omikron, Omikron is entitled to temporarily block the corresponding data or content if the infringement has been conclusively demonstrated. Omikron will request the customer to cease the infringement within a reasonable period of time or to prove the legality of the content. If the customer does not comply with this request within a reasonable period of time, Omikron is entitled to terminate the contract for good cause without notice, without prejudice to further rights and claims. If the customer is responsible for the infringement, he is obliged to compensate Omikron for the resulting damage and must indemnify Omikron against any third-party claims. Further rights are reserved.

§7 Remuneration, due date, payment, offsetting and right of retention

1 The current price lists and offer documents at the time the contract is concluded apply to the remuneration of the SaaS service. The customer acquires a certain number of transactions as a transaction quota. This transaction quota has a maximum term of 12 months. Unused transactions will not be extended beyond 12 months.

3 Unless otherwise agreed, payment for the SaaS service is due after invoicing.

4 All payments are net amounts and are to be paid plus the statutory VAT to the account specified by Omikron.

5 The customer may only offset undisputed, recognized or legally established counterclaims. The customer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.

§8 Limitation of liability

1 Omikron does not warrant that Omikron's services will or will not produce any particular results.

2 The customer is entitled to terminate the contract without notice and to demand compensation in lieu of performance if the availability of the software falls below 99.5% for a period of three consecutive calendar months or three calendar months within a period of six calendar months.

3 Omikron is only liable for consequential damages, loss of profit or indirect damages in the event of intent or gross negligence and in the absence of warranted characteristics.

4 OMIKRON shall provide services with trained and experienced personnel. If the service provided by OMIKRON is defective, including the absence of the contractually agreed quality, OMIKRON shall, at its discretion, either supply a replacement or rectify the defect; the number of attempts to rectify the defect shall not be less than two. OMIKRON shall not be liable for damage caused by improper use, incorrect installation and connection with other software by the customer or third parties. If the customer receives a defective instruction, OMIKRON shall only be obliged to supply a defect-free instruction, and only if the defect in the instruction prevents use in accordance with the contract. The limitation period for rights in the event of defects is one year. It begins with the provision of the service to the customer. OMIKRON shall provide a warranty for its services in accordance with the following provisions. OMIKRON shall be liable without limitation in accordance with the statutory provisions if a contractual obligation has been breached by OMIKRON or its vicarious agents intentionally or through gross negligence or if damage to life, limb or health has occurred or if OMIKRON has assumed a guarantee. Liability for slight negligence is excluded unless a material contractual obligation, the fulfillment of which is essential for the proper performance of the contract, on the observance of which the contractual partner regularly relies and may rely and the breach of which jeopardizes the achievement of the purpose of the contract, has been breached. In this case, the amount of liability is limited to the foreseeable damage typical for the contract.

5 No-fault liability for errors/defects already existing prior to the conclusion of the contract is excluded.

6 The limitation period for material defects is one year. Two years for claims arising from defects of title. Two years for claims for damages or compensation for futile expenditure not based on material defects or defects of title.

§9 Property rights of third parties

1 If industrial property rights / copyrights of third parties are infringed by the contractual use of the software and if third parties assert claims against the customer due to such infringement, Omikron will, at its own expense, either procure the right to use the software for the customer or modify the software so that it no longer infringes the rights of third parties and has at least the contractually stipulated quality and functionality.

2 If third parties assert property rights against the customer, the customer shall inform Omikron of this immediately.

§10 Data protection / Confidentiality and access data

1 The processing of data, in particular personal data and data subject to professional secrecy protection, by external service providers may require the consent of the data subjects. The customer shall ensure that it complies with data protection and confidentiality regulations.

2 When providing SaaS services, Omikron may gain access to personal data of the customer and the customer's customers. When processing and using personal data, Omikron acts on behalf of the customer and is obliged under Section 11 BDSG to follow only the customer's instructions. The instruction must be in writing. The customer is responsible for the permissibility of data collection, processing and use, as well as for exercising the rights of the data subjects.

3 Omikron may only grant access authorizations for the data provided to its own employees to the extent required for their respective tasks. If an employee of Omikron leaves the company or if there is a change in activity with the result that the employee no longer needs access to the customer's data, the access authorization of this employee will be deleted immediately.

4 Omikron undertakes not to make any copies or other records of the personal data provided or made available for processing or to tolerate the production by third parties or to pass them on to third parties. Excluded from this are copies or other records that are absolutely necessary in the course of proper data processing / handling of the contractual relationship between Omikron and the customer.

5 Outside of instructions, Omikron may not use the data provided for processing or use for its own purposes or for the purposes of third parties or allow third parties access to this data.

6 Omikron is obliged to effectively secure all customer data against unauthorized access, modification, destruction or loss, unauthorized transmission, other unauthorized processing and other misuse, insofar as this is technically and economically feasible. If a threat to data and software cannot be eliminated in any other way with technically and economically reasonable effort or without promise of success, Omikron is entitled to delete data with damaging content. Omikron will inform the customer of this intention in advance by e-mail to the e-mail address provided by the customer.

7 Omikron and the customer are obliged to treat this agreement and the information made available to them under this agreement by the respective other party, as well as knowledge that they obtain on the occasion of this cooperation about matters of a technical, commercial or organizational nature of the respective other party, confidentially and not to exploit or use it or make it accessible to third parties during the term and after termination of this agreement without the prior written consent of the party concerned, unless the transmission of the information is covered by Omikron's contractual service program. Disclosure to third parties who are subject to a legal obligation of confidentiality is not subject to consent. Disclosure to employees who require the information for their work in the performance of contractual services also does not require consent. However, the parties shall ensure that such employees are bound by appropriate confidentiality obligations. Any use of this information shall be limited solely to use for the performance of this contract. Each party shall inform the other party immediately upon becoming aware of any unauthorized disclosure or possible loss of confidential information.

This obligation shall not apply to information which the other party has demonstrably received or will receive lawfully from third parties, was already generally known at the time of conclusion of this contract or subsequently became generally known without breach of this confidentiality obligation, was already previously available to the party receiving this information, or was already developed independently of the communication by the party receiving this information.

8 No rights of ownership, license, use or other rights are granted by Section 9 or by the mutual communication of information, regardless of whether or not property rights exist.

9 The prohibition of disclosure does not apply if the parties are obliged to disclose the information by law or by court or official order. In this case, however, the party obliged to disclose is obliged to notify the other party in advance of the disclosure of the information so that the other party has the opportunity to defend itself against such disclosure and to prevent or restrict it. The party obliged to disclose shall use its best efforts to ensure that all confidential information to be disclosed is treated confidentially vis-à-vis the authorities ordering the disclosure.

10 The confidentiality obligations of this contract shall continue to apply for a period of 2 years after termination of this contract. With regard to data that is subject to data secrecy or professional secrecy, the confidentiality obligation shall apply indefinitely.

§11 Term / Termination

1 Unless otherwise agreed, the contract begins on the date agreed with the customer. The contractual relationship lasts for twelve months on the basis of the transaction quota. Each contract extension is based on a new transaction quota.

2 The right of both parties to terminate the contract for good cause remains unaffected.

In particular, Omikron is entitled to terminate this contract extraordinarily without notice if the customer is in arrears with the payment of an amount for a period of more than two months that corresponds at least to the agreed fee for the use of the software for the period of two months; insolvency proceedings or other judicial or extrajudicial proceedings serving to settle debts have been or will be initiated against the customer's assets; the customer's user account is transferred without Omikron's consent or the access data to the SaaS service is made accessible without Omikron's prior consent; the customer breaches a material obligation under this contract and, despite the setting of a deadline with a threat of rejection, does not cease the breach of contract or provide evidence of measures that are suitable to prevent the repetition of the breach of contract in the future.

3 In the event of termination of the contractual relationship, for whatever legal reason, the parties are obliged to properly wind up the contractual relationship. For this purpose, Omikron will transfer the data stored within the scope of the contract and any database created within the scope of the contractual relationship to the customer or a third party designated by the customer at its own expense no later than four weeks after termination of the contract, either by online transfer or on a data carrier, at the customer's discretion. The data formats available to you are either the standard format of the software or an export format provided by the software. After confirmation of the successful data transfer by the customer, Omikron will immediately delete the data and destroy all copies made. Omikron can only provide further support services for the migration of the data on the basis of a separate order. Such further support services are to be remunerated by the customer in accordance with the applicable price list.

§12 Final provisions

1 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

2 If the customer is a merchant within the meaning of the German Commercial Code, the place of jurisdiction for all obligations arising from or on the basis of the contractual relationship shall be Pforzheim.