QIDENUS GROUP GMBH „OMNI:US“
VERSION 1.5 SEPTEMBER 2019
1. PREAMBULE AND SCOPE OF APPLICABILITY
Qidenus Group GmbH (“omni:us”) provides services and products in the areas of artificial intelligence and machine-learning for its customers, most of whom conduct business in the insurance industry.
These General Terms and Conditions (“GTC”) define the general contractual framework for business relationships of omni:us with its respective business partners (“Customer”/”Customers”). These GTC only apply if the respective business partner is an entrepreneur within the meaning of § 14 BGB (German Civil Code) or a legal entity under public law. These General Terms and Conditions shall not apply in the case of deviating stipulations in a written individual contract between the Parties.
These GTC in conjunction with:
- the respective “omni:us End-User License Agreement (EULA)” including Product Attachment 1 – Software Subscription and Support”,
- the respective current Price List,
- the respective “Work-Order Agreement”,
- and the respective Data Processing Agreement,
represent the contractual conditions applicable between omni:us and its business partners (“Contract”).
“omni:us” refers to Qidenus Group GmbH, Perleberger Str. 42c, 10559 Berlin, Germany (HRB Register, HRB 171236B, AG Charlottenburg, Berlin) and all companies associated with omni:us worldwide.
“Affiliated Companies” are all subsidiaries controlled by Qidenus Group GmbH within the meaning of § 15 AktG (German Stock Corporation Act). Control in this sense means that Qidenus Group GmbH can exert a controlling influence on the company in question directly or indirectly by virtue of ownership of the majority of voting rights, a majority in the company management or an agreement.
“omni:us Products” means the omni:us End-User License and Subscription Services (EULA) for software solutions with omni:us products and domain models under the respective brand names.
“Additional Services” means services provided by omni:us to the Customer which are not listed in Article 3.1 of this Agreement. Additional Services will be offered to the Customer from time to time.
The term “Customer” refers to any person or entity, as well as their affiliates, who enters into a business relationship with omni:us or contracts with omni:us.
“Customer Data” means all data and information that the customer submits to omni:us or respectively data with respect to which omni:us has potential access.
“SaaS System Environment” means the jointly integrated hardware and software components (including, but not limited to, hardware, software, servers, networks and technologies installed in such environment, including any other omni:us products licensed) that omni:us and the Customer use. This includes system environments “on-premise” on the environments operated by the customer, the rental of infrastructure from external hosting service providers as a system service or “on-site” system environments hosted by omni:us itself or on behalf of omni:us by a third party.
The term “User” means any person authorized by the Customer to use the omni:us products under the terms of the applicable license agreement.
2. AVAILABILITY AND USE OF OMNI:US PRODUCTS, MODELS AND SERVICES
2.1. Use of omni:us Products
Unless otherwise specified in the applicable Work Order, subscribed offer or a separate agreement, (i) omni:us Products are acquired by purchase of or subscription to a license to use and are accessible only for the specified metric under the applicable or adapted EULA and/or under a service license, (ii) additional licenses to use and/or services licenses may be obtained during the term of use pursuant to the EULA (which is defined as one year by default) and the published price list or and (iii) the added usage licenses and/or service licenses shall each terminate on the basis of the defined terms from the date of subscription.
2.2 Rights of the customer to use omni:us Products, Custom Connectivity Products and Custom Models.
omni:us hereby grants to the Customer (as well as to consultants specifically authorized by the Customer) the non-transferable, non-sublicensable, non-exclusive and revocable right to access omni:us Products and to use omni:us Products in accordance with the usage metrics set forth in the EULA and the applicable price list or individually agreed Agreement. The granting of rights applies for the contractually agreed period of use and in accordance with the restrictions of the respective contract.
Without the consent of omni:us, this right cannot be granted to third parties by the Customer. Access and use are possible either by virtue of technical administration of omni:us or by virtue of technical administration of the Customer and are agreed upon on a case-by-case basis. Users may enter/transfer or automatically transfer/retrieve data and use omni:us Products in accordance with the provisions of this Agreement.
Custom omni:us connectivity Products
Unless otherwise agreed and as far as necessary for the fulfilment of the agreed services, omni:us grants the Customer the contractually defined rights after complete payment. Unless otherwise agreed between the Parties, this also includes the rights of the Customer to use interfaces adapted to omni:us Products (“Customer-Specific omni:us Connectivity Products”).
Unless otherwise agreed, this includes in particular the right of the Customer to reproduce, process (including the connection with other programs, the redesign, the conversion into other programming languages and for other operating systems), to transfer to other forms of representation and to change, continue and supplement Customer-Specific omni:us Connectivity Products in any other way.
The Customer shall not be entitled to distribute Customer-Specific omni:us Connectivity Products in unchanged or modified form, to publicly reproduce them by wire or wireless means, to grant sublicenses or to transfer the rights of use granted within the scope of this Agreement against payment or free of charge.
Irrespective of the aforementioned granting of rights, omni:us reserves the right to make further use of experience, knowledge and know-how gained in connection with Customer-Specific omni:us Connectivity Products, irrespective of the form. This does not apply if further use would violate mandatory legal or contractual regulations. All rights to provisional products, provisional data, neuronal (training) models, network bases and other aids – “tools and resources” – remain with omni:us, unless expressly agreed otherwise in the contract.
omni:us Product based Customized Models
To the extent necessary to fulfill the agreed services, omni:us grants the Customer the right of use, which is unlimited in space and time, simple and revocable, for complete neural models specifically optimized for the Customer on the basis of algorithms and models based on omni:us Products or extended algorithms for the – “Customer-Specific omni:us Product Models” after complete payment of the owed remuneration. This includes the customer’s right to use omni:us product models to create Customer-Specific omni:us Product Models for the specified number of licenses using the omni:us product tools.
As far as this is necessary for the fulfilment of the agreed services, the customer also receives the right to edit, change, continue and supplement Customer-Specific omni:us Product Models. The customer shall not be entitled to distribute Customer-Specific omni:us Product Models in unchanged or modified form, to publicly reproduce them by wire or wireless means, to grant sublicenses or to transfer the rights of use granted within the scope of this contract against payment or free of charge, unless this is expressly regulated in the respective customer contract.
Irrespective of the aforementioned granting of rights, omni:us reserves the right to further use experience, knowledge and know-how gained in connection with Customer-Specific omni:us Product Models. All rights and know-how to algorithms and/or models, on the basis of which Customer-Specific omni:us Product Models were created and trained, remain exclusively with omni:us. Likewise, omni:us retains all rights to provisional products, provisional data and (provisional) neural (training) models and network bases and other aids – ” tools and resources “.
2.3 Use of omni:us Services and Work Orders
Unless the respective contract or the purpose of the contract necessarily provides otherwise, services provided by omni:us are generally to be qualified as services within the meaning of § 611 BGB (German Civil Code). In the contract with the respective Customer, services (e.g. consulting, maintenance, ground truthing, implementation services) and/or other software and/or system work orders of omni:us can be concluded. This can be done by separate agreement or as part of the main contract. The relevant contractual conditions (in particular service provision, acceptance, payment agreement) are specified separately with regard to the additional services mentioned and form an integral part of the contract. The resulting use of the results of such services or works shall also be governed in individual cases by separate agreements. If this is not the case, omni:us retains the rights to all results of all work orders or services.
3. OBLIGATIONS FOR THE USE OF OMNI:US PRODUCTS
3.1 Obligations of omni:us.
omni:us (itself or, if payments are not made directly to omni:us, through its distribution or service partner) is obligated to: (a) grant access to the omni:us Product Service; (b) take all commercially reasonable steps to make omni:us Products available pursuant to EULA Appendix 1 Subscription and Support Terms or individual or other agreements with Customer, except as otherwise provided in EULA Appendix 1 Subscription and Support Definitions.
This includes in particular (a) planned announced downtimes or (b) public holidays or (c) any unavailability due to circumstances beyond the control of omni:us, such as unavoidable natural disasters, acts of government, floods, fires, earthquakes, civil unrest, acts of terrorism, strikes, or other problems related to labor disputes or failures or delays caused by integrated third-party services, and (d) to provide customer service in accordance with EULA Appendix 1 Subscription and Support Terms, and (e) to provide omni:us Products only in accordance with applicable laws and regulations.
If, alternatively, an operating environment used within the sphere of influence of the customer is desired (“on-premise”), any operating condition agreements on the part of omni:us Products must be agreed separately.
Omni:us is not competent and/or responsible for hardware or software, programming, training and hardware or software provided by the Customer, unless this is expressly defined as part of the service. omni:us does not provide technical and functional support outside the scope of the agreements between omni:us and the Customer (e.g. assistance with configurations or software at the workplace, with errors or problems, with configurations or bug fixes for software products that are not related to the service, solving problems that arise through changes by the Customer, or integrated solutions that are part of the SaaS System Environment but cannot be influenced by omni:us).
If omni:us Products or system components are used by the Customer to process personal data on behalf in accordance with Art. 28 DSGVO, data processing agreements shall be concluded between the Parties. The models created for the utilization of omni:us Products, trainings and ground truth services that may be required generally do not include the processing of personal data on behalf.
Data security at omni:us is ensured by a certified information security management system in accordance with ISO/IEC 27001:2013. Corresponding certification evidence or documentation in this context can be provided on request. omni:us ensures that all standards relevant to data protection are known and adhered to, in particular that all employees are contractually bound to data secrecy.
3.2. Obligations of the Customer.
Customer (a) is responsible for compliance with the terms of this Agreement by Users, (b) is solely responsible for the accuracy, quality, completeness and compliance with applicable laws regarding Customer data and the means by which Customer obtains Customer data, (c) makes commercially reasonable efforts to prevent unauthorized access to and use of omni:us Products, and will notify omni:us immediately if such unauthorized access or use has occurred, and (d) will use omni:us products only in accordance with applicable laws and regulations.
4. RIGHTS AND LICENCES
4.1. Reservation of Rights.
In accordance with the limited rights expressly granted by this Agreement and the referenced EULA, omni:us reserves all rights, title and interest in and to omni:us Products, including all intellectual property rights, except to the extent it is contrary to mandatory legal or contractual provisions. No rights other than those expressly set forth herein are granted to the Customer in this context. omni:us retains all rights to the Software, its know-how and its algorithms.
Customer understands and acknowledges that omni:us Products consist of algorithms that also learn from Customer’s input and convert such input into preliminary products, preliminary data and neural (training) models (collectively referred to as ” tools and resources “) to produce the output. The customer thus acknowledges that all rights in connection with the tools and equipment used, created, developed or stored by providing the omni:us Product Service to the customer shall remain solely with omni:us, unless otherwise agreed. Unless otherwise agreed, omni:us also retains all rights to other software specially developed for the customer (interfaces, ports, etc.).
If this is necessary to perform the agreed services, omni:us and the Customer may, without prejudice to the provisions of Section 2.2, agree that the Customer shall be granted licenses to use software developed specifically for the Customer and/or other copyrighted tools and equipment created using omni:us Products. Unless expressly agreed otherwise, these are simple, revocable, non-transferable licenses. The customer may not sublicense without the consent of omni:us.
Customer may not (a) reverse engineer or (b) seek access to omni:us Products in order to (i) develop a competing product or service or (ii) copy any features, functions or graphics of omni:us Products. Customer shall not have access to omni:us Products without the prior written consent of omni:us, if Customer’s primary or secondary business is to provide or distribute software or services to manage intellectual property or otherwise compete with omni:us. Furthermore, the customer shall not have access to omni:us Products for the purpose of monitoring their availability, performance or functionality or for any other performance-comparative or competitive purpose.
4.3. Rights to Customer Data.
All rights, titles and interests in all customer data are the exclusive property of the Customer. The Customer is responsible for ensuring that all legal (in particular data protection) provisions are complied with in relation to this data. The Customer expressly guarantees that he is entitled to transfer to omni:us the rights required to create and store the tools and equipment. The Customer is responsible for the entire duration of the Agreement to protect the data provided to omni:us against unintentional breaches of integrity, confidentiality and availability.
Customer grants omni:us a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into omni:us Products any suggestions, improvements, recommendations or feedback made by Customer, including Users, that are directly related to the operation of omni:us Products.
5.1. Definition of Confidential Information.
For the purposes of this Agreement, “Confidential Information” shall mean any confidential information disclosed orally or in writing by a Party to the Agreement (“Disclosing Party”) which is identified as confidential or which, by reason of the nature of the information and the circumstances of disclosure, is reasonably to be regarded as confidential. Customer’s confidential information shall include Customer Data; confidential information of omni:us shall include technological and technical information about omni:us Products; all Parties’ confidential information shall include the terms and conditions of this Agreement and all referred contractual forms, as well as business and marketing plans, technological and technical information, product plans and designs, and transactions disclosed by either Party. Confidential Information (other than Customer Data) does not include information that (i) is or becomes known to the general public without any breach of duty by the Disclosing Party, (ii) was known to the Receiving Party prior to disclosure by the Disclosing Party without any breach of duty by the Disclosing Party, (iii) is received by a third Party without any breach of duty by the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of the confidential information of the other Party.
5.2. Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall not use the Disclosing Party’s Confidential Information for purposes outside the scope of this Agreement, and (ii) the Receiving Party shall restrict access to the Disclosing Party’s Confidential Information to those of its employees, contractors and agents who require such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing no less stringent confidentiality requirements than those set forth in this Agreement.
5.3. Protection of Customer Data.
Without limiting the foregoing, omni:us shall maintain reasonable administrative, physical and technical safeguards to protect the confidentiality, integrity and availability of Customer Data. omni:us (a) does not alter Customer Data, (b) does not disclose Customer Data, except as provided in Section 5.4 (Forced Disclosure) there is a legal obligation to do so or if Customer expressly permits disclosure in a documented form, and (c) does not access Customer Data except to use it for omni:us Products or to prevent or resolve performance or technical problems or at Customer’s request in connection with Customer Services.
5.4. Forced Disclosure.
The Receiving Party may disclose Confidential Information to the Disclosing Party if required to do so by law, provided that the Receiving Party notifies the Disclosing Party prior to such mandatory disclosure (to the extent permitted by law).
5.5 Agreed Disclosure.
Unless otherwise stated, the Customer agrees that omni:us may refer to the Customer as a customer using omni:us product technology on its website and in printed text and promotional materials. The Customer shall provide omni:us with an approved company logo that omni:us may publish on its website and/or in promotional materials to illustrate the business relationship with the Customer. Customer may at any time request that omni:us remove such notice, provided that such removal is reasonable for omni:us. omni:us shall not be liable for any further dissemination by third parties.
Each Party represents and warrants that (i) it has the legal authority to enter into this Agreement and (ii) it will not transmit any harmful code to the other Party.
Except as expressly provided otherwise, neither Party makes any warranties of any kind, express, implied, statutory or otherwise, except as may be required by mandatory law.
7.1. omni:us shall only be liable for any damages or losses arising out of this Agreement in accordance with the provisions set forth in (a) to (c):
(a) omni:us shall be liable without limitation for damages caused intentionally or by gross negligence, including damages caused by its legal representatives or executive employees, as well as for damages caused intentionally by other vicarious agents; for gross negligence of other vicarious agents, liability shall be determined in accordance with the provisions for slight negligence set forth in (c) below.
(b) Except for damages or losses caused intentionally or grossly negligently by omni:us, its legal representatives or officers, or damages or losses caused intentionally by other agents, omni:us shall not be liable for lost profits, loss of anticipated savings, loss of business or goodwill, or any other indirect, special, incidental, consequential or punitive damages arising out of or in connection with this Agreement or any related contracts.
(c) The Customer is obliged to limit possible damages by suitable data backup measures and is responsible in particular for the regular data backup. omni:us is liable for data losses only up to the amount of the usual replacement costs, which would have arisen if proper and regular data backup measures had been taken.
(d) omni:us shall be liable for damages arising from the breach of cardinal obligations by omni:us, its legal representatives or vicarious agents; cardinal obligations are the essential obligations which form the basis of the Agreement, which were decisive for the conclusion of the Agreement and on the performance of which the Customer may rely. If omni:us has breached these cardinal obligations due to slight negligence, its resulting liability shall be limited to the full amount owed by the Client for the services rendered under this Agreement.
(e) Insofar as insurance cover exists, the Parties shall be liable to each other within the framework of the actual coverage of the underwriting insurer.
8. STATUTE OF LIMITATIONS
Claims of the Customer shall become statute-barred within twelve (12) months from the date of the relevant interim acceptance.
9. DURATION, PAYMENT TERMS AND TERMINATION
9.1. Contract Duration.
This Agreement shall enter into force at the time Customer begins to use omni:us Products or, if agreed in writing between the Parties, at the agreed time, and shall continue until all User License Agreements granted in accordance with this Agreement have expired or terminated.
9.2. Duration of User Licenses and/or Use for Services.
User licenses and/or use of services purchased by the Customer shall be valid starting from the time specified in the relevant Work Order or Agreement and shall remain valid for the period of use specified therein. Unless otherwise stated in Agreements with the Customer, the User License shall be governed by the EULA Terms (defined as 1 year by default). Unless otherwise stated, all User Licenses shall automatically be renewed for a period equaling the expired usage period or the base usage period set forth in the EULA (whichever is longer) unless either Party notifies the other Party of non-renewal at least 90 days (date of receipt of notice by email or letter) prior to the end of the applicable usage period. Prices per unit for each renewed term shall be the same as for the previous Term unless omni:us notifies Customer in writing of a price increase at least 90 days prior to the end of such previous term, in which case such price increase shall be effective upon renewal.
9.3. Termination for Cause
A Party may terminate this contract for cause: (i) by giving 30 days’ written notice to the other Party of a material breach if no remedy has been found after the expiry of that period, or (ii) if the other Party becomes the subject of insolvency proceedings or other proceedings relating to receivership, liquidation or assignment in favor of creditors.
9.4. Reimbursement or Payment upon Termination.
Upon termination for cause by the Customer, omni:us will refund to the Customer all amounts paid in advance for the term of all subscriptions remaining after the effective date of termination. Upon termination for cause by omni:us, Customer shall pay all unpaid amounts for all orders or subscriptions remaining after the effective date of termination. In no event will termination release the Customer from the obligation to make any payments due to omni:us for the period prior to the effective date of termination.
9.5. Return of Customer Data.
On the effective date of termination of this Agreement, omni:us shall provide the Customer with an electronic copy of the customer data stored in the omni:us system at that time upon request, provided that such data has been stored within the sphere of influence of omni:us. The Customer may also request a copy of the customer data at any time prior to termination.
The electronic copy of the customer data is made available in the form of an omni:us memory dump.
The Customer shall bear the costs incurred by omni:us for the production and provision of the copy of the customer data according to the agreed hourly rate. If no hourly rate has been agreed, the hourly rate customary in the market shall apply. omni:us is not obliged to store or make available customer data for longer than the effective date of the termination of the omni:us Products’ period of use. The Customer shall instruct omni:us to delete or transfer the processed original data after termination of the contract. If this does not happen, the Customer is responsible for deleting or copying the data.
9.6 Payment Terms
Unless otherwise agreed, a 30-day payment term applies without deductions from receipt of invoice.
10. APPLICABLE LAW AND JURISDICTION
10.1. Applicable Law
This Agreement and its interpretation shall be governed by and construed in accordance with the laws of the Federal Republic of Germany excluding its international conflict of laws provisions.
The place of jurisdiction for all legal disputes arising from or in connection with this contract shall be Berlin, Germany, provided that this does not violate any mandatory statutory provisions.
11.1. Severability Clause.
If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful, such provision shall be modified by the court and construed to most closely approximate the intent of the original provision within the limits permitted by law, while the remaining provisions of this Agreement shall remain in full force and effect.
11.2. Completeness Clause.
This Agreement, including any Order, EULA or other supplemental agreement, constitutes the entire Agreement between the Parties for the use of omni:us Products and supersedes any prior and contemporaneous agreements, proposals or representations, written or oral, relating to such subject matter.
11.3. Force Majeure.
In the event of force majeure, the Party which is in default or is damaged thereby shall notify the other Party as soon as possible, but in any event within seven (7) days of the occurrence of the event of force majeure, of that event, indicating the nature of the force majeure and the estimated duration of the event.
In the event that the force majeure situation persists for more than sixty (60) days or is estimated to persist for more than sixty (60) days, the other Party shall be entitled to terminate this Agreement by simple written notice without the other Party being entitled to claim damages. Otherwise, the rights and obligations of both Parties shall be suspended and new schedules and delivery dates agreed between the Parties. Force majeure events include fires, earthquakes and other accidents, inevitable natural disasters, storms, war or other outbreaks of violence or laws, orders, proclamations, regulations, decrees, motions or orders of any governmental body, and other cases reasonably beyond the control of the Party.
All formal notices and other communications required or permitted under this Agreement shall be in writing and shall be delivered by registered mail with prepaid postage, delivered in person or by messenger, or sent by e-mail to the following address:
Qidenus Group GmbH
Attention: Administrative Department
Perleberger Str. 42C, D-101559 Berlin
E-Mail: [email protected]
or to any other address that omni:us has communicated to the Customer in writing. All notices and other written communications shall be effective (i) in the case of mailings sent seven (7) days after dispatch, (ii) in the case of delivery at the time of delivery or (iii) in the case of transmission by e-mail one (1) day after delivery.
omni:us is entitled to use subcontractors to fulfil its contractual obligations. In the case of data processing, these are mentioned separately in the respective data processing agreements. In the case of data preparation activities (“ground truth” and/or “training of models”), which are necessary for the pre-processing of data in order to enable the use of omni:us product results, subcontractors may also be consulted. Unless otherwise agreed, the Customer agrees to these subcontracts.
Notwithstanding the foregoing, neither Party shall assign or transfer rights and obligations under this Agreement to any other person or entity without the prior written consent of the other Party, who shall not refuse such consent for undue reasons. Notwithstanding the foregoing, omni:us shall be entitled to assign its rights and obligations under this Agreement to successors or purchasers of omni:us as a result of a merger, purchase of a majority interest in omni:us, consolidation or purchase of omni:us’ assets.
11.6. Modifications and Adjustments.
Subsequent changes and adjustments to these GTC are possible if the respective change is notified to the Customer by e-mail or in writing with a period of four weeks in advance, if the Customer does not object to this change within a period of four weeks from notification of the change by e-mail or in writing. If the amended terms and conditions are rejected, (a) the previous terms and conditions shall continue to apply for the remaining term(s) of the omni:us Product(s) and services purchased up to the date of the update and (b) the amended or updated terms and conditions shall apply to all new contracts or renewals of omni:us Products and services purchased after the updated terms and conditions become effective. In the event of an objection, omni:us shall have the right to terminate the agreement in the ordinary course of its business, provided that this does not result in improper or immoral pressure on the Customer to refrain from exercising its right to object.