End User License Agreement (EULA)
Version: March 2020
§ 1Subject matter, scope
- This License Agreement applies to companies within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law, as DRACOON's service offerings are directed exclusively at persons who are not consumers within the meaning of § 13 BGB, i.e. who use services predominantly for their entrepreneurial, commercial or freelance activities.
- Unless otherwise agreed upon, the licence terms and conditions in the version valid at the time of the End Client's order or in any case in the version last communicated to him in text form as a framework agreement shall also apply to similar future contracts without DRACOON having to refer to the validity of this license agreement and conditions again in each individual case.
- Legally binding declarations and notifications of the End User regarding the contractual relationship (e.g. setting of a deadline, notification of defects, withdrawal or reduction) have to be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory provisions and further requirements for proof, in particular in the event of doubts about the legitimacy of the declarant, shall remain unaffected.
- Deviating, conflicting or supplementary terms and conditions of the End User will only become part of this license agreement and conditions if and insofar DRACOON has explicitly agreed to their validity. The requirement of consent applies in any case, for example also if DRACOON, knowing the End User's terms and conditions, grants rights of use according to this license agreement or provides maintenance services.
§ 2Changes to the license agreement
- DRACOON reserves the right to inform the End User about changes of this license agreement in writing two (2) months before they become effective ("Notification of Change"). Unless the End User objects to the changes within four (4) weeks after notification of the changes, the License Agreement between the parties shall apply in the amended version. DRACOON is obliged to inform the End User about this consequence in the notification of change.
- If the End User objects to the amendment, both parties are entitled to terminate this license agreement within two (2) weeks after the End User's effective announcement of the objection, with effect to the expiry of the validity period of the previous term.
§ 3Offer and contract conclusion
- The service offers for the DRACOON solution presented by DRACOON on the website or otherwise communicated or published are subject to change and non-binding. This also applies if DRACOON has provided documents to the End User.
- Upon request by the End User, DRACOON will send him an individual, non-binding offer of services in electronic, written or text form (e.g. letter, e-mail, fax) regarding the DRACOON Solution. DRACOON will enclose a technical order form to be filled in by the End User ("technical order form").
- By placing an order for the services offered by DRACOON on an individual and non-binding basis the End User makes a binding offer to DRACOON to conclude a contract on the terms and conditions stated in the offer and encloses the completed technical order form as part of his binding offer ("binding order").
- Upon confirmation of the binding order by DRACOON the acceptance is declared and the contract is concluded under the conditions set forth in DRACOON's non-binding offer of services. DRACOON may accept the End User's binding order within two (2) weeks.
§ 4Provision of the DRACOON solution
- The time of provision of the DRACOON solution by DRACOON is determined by the delivery time stated in the binding order. The delivery period starts when it is confirmed by DRACOON in writing or in text form after conclusion of these licence terms.
§ 5Rights of use
- The End User receives the simple, non-exclusive, non-transferable and non-sublicensable right to install, load, display, run, copy and save the DRACOON Solution to the extent granted by this license agreement.
- The End User is prohibited to:
- Decompile the program code of the DRACOON Solution into other code forms or to reverse engineer the DRACOON Solution in any other way, to change the DRACOON Solution in any other way or to allow a third party to do so, unless a case of § 69e para. 1 UrhG (German Copyright Act) exists.
- Create works derived from the DRACOON solution.
- Remove or change copyright notices, serial numbers and other features serving the program identification. The same applies to a suppression of the screen display of corresponding features.
- The End User may only reproduce the DRACOON Solution if the respective reproduction is absolutely necessary for the use of the DRACOON Solution within the scope of the rights of use granted under these license terms. This includes in particular downloading and installing the DRACOON Solution from a temporary storage device to the mass storage device of the hardware used as well as loading the DRACOON Solution into the main memory.
- Furthermore, the End User may make copies of the DRACOON Solution for backup purposes in the mandatory required number and store them for purely archival purposes. On each backup copy the End User has to affix DRACOON's copyright notice.
- The removal of a copy protection or similar protection mechanisms as well as of a copyright notice of DRACOON contained in the DRACOON solution is not allowed.
- The End User is not allowed to use devices, equipment, software or data or to make interventions that may lead to changes in the physical or logical structure of the systems and services of DRACOON Solution or the networks of its suppliers.
§ 6Setup, access data, access software
- DRACOON will set up the chosen product variant of the DRACOON solution based on the technical order form provided by the End User and will send the End User an internet address for an administrator access ("Admin Access") together with access data by e-mail. The operational provision of the services of DRACOON shall be deemed to have been effected with the transmission of the admin access and the access data for the products Dracoon Enterprise Cloud / Enterprise Cloud Hybrid and in case DRACOON is provided as an on premises product with the transmission of the access data for the download area.
- Upon delivery of the access data required for the access (username and password) or the corresponding e-mail to the admin access, the possibility to use the DRACOON solution owed according to this License Agreement is opened.
- The start date of the Service Period shall be the first calendar day of the month in which (1) or (2) occurs, if this occurs up to and including the 15th calendar day. If (1) or (2) occurred after the 15th calendar day, the service period starts on the 1st calendar day of the following month.
The End User shall notify DRACOON immediately in writing of any change of his person, name or designation (including legal form, address, telephone number). The End User shall reimburse DRACOON for any costs caused by a culpable delay in the transmission of such data.
DRACOON is not responsible for any impairment of the use of the DRACOON solution in the sphere of the End User after opening the admin access or transmitting the access data for the download area.
If DRACOON grants the End User the possibility to use the access software, this is done solely for the purpose of accessing the DRACOON solution, limited to the period of time during which the End User has been granted the rights of use by DRACOON and exclusively within the scope of contractual use according to these license terms.
DRACOON provides the End User and the individual users with a copy of the respective access software in digital form by enabling the download from the DRACOON website.
- DRACOON does not owe any installation or configuration services related to the Access Software. A certain quality of the access software is not owed. The functionality of individual access software is not a primary obligation.
§ 7Free and Open Source Software
- DRACOON reserves the right to use DRACOON components in the Enterprise File Sharing solution that are licensed under Free and Open Source Software Licenses ("FOSS Licenses") ("FOSS Components"). DRACOON provides the End User with a list of FOSS components and the applicable FOSS licenses. This list can be found in DRACOON Software Dependencies
- The End User is granted the right to use the FOSS components directly by the respective copyright holder.
- If and as far as DRACOON assumes support, warranty, liability and indemnification obligations towards End Users in this license agreement, these obligations apply exclusively in the relationship between DRACOON and the End User. The relationship between the End User and the right holder is exclusively governed by the provisions of the respective applicable FOSS license. It remains unaffected by these license conditions.
§ 8Restriction of the use of the DRACOON solution
- DRACOON is entitled to restrict or completely prohibit the use of the DRACOON Solution if the End User violates this license agreement or if there are other important reasons in the person of the End User or the individual users administered by him.
- In case of a restriction or prohibition of the use of the DRACOON Solution according to clause (1) above the End User shall bear the costs for the (partial) blocking of his user account for the DRACOON Solution ("Account") and, if applicable, the costs for the re-activation according to the current price list. The End User is entitled to prove lower costs, DRACOON is entitled to prove higher costs.
- DRACOON is furthermore entitled to restrict or prohibit the use of the DRACOON solution if this is necessary or reasonable for reasons of data integrity and/or data security.
- In addition to the cases mentioned in (1) and (3) above DRACOON may restrict or suspend the possibility to use the DRACOON Solution at any time and/or stop the transmission of content provided by the End User if
- this is necessary to perform maintenance work to maintain the quality of the DRACOON solution
- this is necessary to comply with an official and/or court order; <
- the End User obstructs DRACOON in the performance of its obligations under this license agreement;
- the data traffic exceeds the average data traffic of other End Users by more than 20% (status information regarding the own data traffic as well as the average data traffic of all End Users is available on request from DRACOON)
- the use is obviously illegal or abusive; this includes in particular, without limitation, the use of the DRACOON Solution for unsolicited sending of e-mails to third parties, especially for advertising purposes (spam mails) or for abusive posting of messages in newsgroups, especially for advertising purposes (news spamming);
- the End User provides or otherwise makes available a user account to third parties not employed by him for (joint) use, whether for a fee or free of charge; or
- the End User does not comply with the accepted principles of data security, especially not to keep user names and passwords secret or to change them immediately or to arrange for changes, as well as if DRACOON has reason to believe that unauthorised third parties gain knowledge of them.
- The DRACOON Free Version can be terminated by DRACOON at any time.
- The End User has to inform DRACOON immediately about any restrictions of the DRACOON Solution's usage, as far as legally admissible.
§ 9Responsibility of the End User for content
- The End User is solely responsible and bears the sole liability that he has the necessary rights to use his own or third party content in connection with his use of the DRACOON solution and that the use of such content is in accordance with the legal regulations.
- DRACOON is not obliged to check contents of the End User for the infringement of intellectual and industrial property rights of third parties. However, DRACOON reserves the right to delete contents that violate intellectual and industrial property rights of third parties and to which DRACOON has been notified without notification of the End User.
- The End User is responsible for all activities that are carried out through his accounts. The End User is obliged not to disclose or otherwise make available the access data of the accounts to any third party. The End Client agrees to inform DRACOON immediately about any unauthorized use of accounts. A violation of the above obligations entitles DRACOON to terminate this license agreement without notice for good cause.
§ 10Pricing and payment terms
- Unless otherwise agreed in the order, the prices according to DRACOON's current price list in Euro (EUR) plus VAT at the time of conclusion of this license agreement shall apply.
- The prices are valid for the agreed term of this license agreement. Possible transfer fees or charges have to be paid by the End User (additionally)
- Unless otherwise agreed in the order, the End User shall pay the remuneration owed as stated in the order in advance either annually or for the entire term; invoices are payable immediately and must be paid within 14 days without discount. In the event of default of payment, the statutory provisions shall apply, including an interest rate of 9 percentage points above the respective base interest rate). We expressly reserve the right to assert further damages caused by default.
- If after the conclusion of this license agreement circumstances become apparent that considerably reduce the creditworthiness of the End User compared to the time of conclusion of the agreement, or that give rise to doubts about the ability and/or willingness of the End User to perform, and/or if the End User is culpably in default of payment within the scope of agreed terms of payment, DRACOON is entitled to demand security for the payment amount still to be made by the End User for the remaining term of this license agreement, irrespective of the originally agreed terms of payment.
- In the cases of clause (4) above DRACOON is furthermore entitled to refuse performance according to legal regulations and - if necessary after setting a deadline - to withdraw from this license agreement (§ 321 BGB).
§ 11Right of assignment and retention
- The End User is not entitled to assign his claims against DRACOON. § 354a HGB remains unaffected.
- The set-off or the exercise of a right of retention is only permissible with undisputed or legally binding claims. Furthermore, the exercise of the right of retention for the End User is only permissible if the counterclaim of the contractual partner is based on the same contractual relationship.
§ 12DRACOON audit rights
- DRACOON is entitled to check the compliance of the End User with § 5 and § 9 of this agreement once a year during normal business hours and with reasonable prior notice by means of an audit by an independent auditor, whereby the audit must not unreasonably affect the business operations of the End User. At all times DRACOON shall take into account the End User's confidentiality obligations towards third parties, the integrity of the End User's computer systems and applicable data protection laws. For the purpose of the audit DRACOON is entitled to request information from the End User regarding the compliance with § 5 and § 9 of this license agreement.
- If the information provided by the End User is not sufficient or if DRACOON has indications that the information provided is not complete or incorrect, DRACOON is entitled to verify the compliance of the End User's computer systems on which the DRACOON Solution is installed and operated with this license agreement either by itself or by an independent auditor subject to confidentiality obligations that are not inferior to the obligations stipulated in 18 of this agreement. The End User is obliged to grant DRACOON or the appointed auditor access to and access to the computer system(s) to the required extent. If such an audit reveals that the End User has exceeded the use granted according to § 5 of this license agreement by 5% or more or has violated § 5 or § 9 of these terms in any other way, the End User shall bear the costs of the audit. Further claims of DRACOON for damages or payment of additional license fees remain unaffected.
§ 13Technical notes on the DRACOON Solution, documents and data storage
- DRACOON shall regularly inform the End User via e-mail newsletter about important technical changes and security-critical events concerning the DRACOON solution that are essential for the use of the DRACOON solution. In case the contact person named by the End User does not want to receive the newsletter anymore he has to name a substitute contact person to whom DRACOON will then send the newsletter.
- All documents handed over or otherwise made accessible by DRACOON to an End User remain the property of DRACOON unless otherwise agreed or regulated.
- Documents in the sense of this license agreement are the documentation as well as all catalogues, technical documentations, drawings, plans, invoices, manuals, service descriptions or other carriers of information created or published by DRACOON, regardless of whether they are embodied or electronically stored and whether they are directly or only technically perceptible.
- Data storage handed over to the End User by DRACOON for the provision and implementation of the DRACOON Solution shall always remain the property of DRACOON unless otherwise agreed.
- Documents provided or otherwise made accessible to all End Users by DRACOON may only be made accessible to third parties with DRACOON's prior consent for the specific individual case.
§ 14Term and cancellation, termination of contract
- Unless otherwise agreed in the purchase order, this license agreement has an initial term of twelve (12) months. They shall be extended for additional twelve (12) months unless terminated by either party with three (3) months' notice to the end of the relevant term.
- The right of termination for cause remains unaffected.
- An important reason for termination by DRACOON exists in particular if
- the End User uses the DRACOON Solution beyond the extent permitted by § 5 of this license agreement and does not remedy the breach within a reasonable period of time after a warning by DRACOON
- the End User is in arrears with the remuneration owed or with a not insignificant part of this remuneration for two consecutive months.
- the End User is in arrears with a remuneration corresponding to the amount of two monthly remunerations owed for a period of more than two (2) months. Instead of an extraordinary termination for good cause DRACOON may demand from the End User to provide an adequate security according to § 10 para. 5.
- an application for the opening of insolvency proceedings on the assets of the End User is filed;
- such proceedings are rejected or discontinued due to lack of costs of the proceedings covering the assets;
- the End User has voluntarily or involuntarily initiated proceedings for its dissolution, liquidation or winding up;
- the End User has discontinued its business activities or is insolvent.
- If the granting of the rights of use of the DRACOON Solution under this license agreement ends for any reason whatsoever, the End User shall cease to use the DRACOON Solution and shall remove all installed copies of the DRACOON Solution from his hardware equipment, computers or other devices and, at DRACOON's option, immediately return to DRACOON any back-up copies and any documentation provided by DRACOON or destroy them.
- Upon termination of the rights of use of the DRACOON solution under this license agreement the data and files stored by the End User will be deleted. It is the responsibility of the End User to backup the data and files stored by him in time.
- DRACOON's obligations to store data and files in order to comply with official orders or by law remain unaffected by the regulation of § 14 paragraph (5) as well as DRACOON's right to store individual data and files as long as necessary to pursue civil law claims against the End User.
- Unless otherwise stated in this license agreement including the following provisions, DRACOON shall be liable for any breach of contractual and/or non-contractual obligations according to the statutory provisions.
- DRACOON is liable for damages - no matter for what legal reason - within the scope of liability for intent and gross negligence.
- In case of simple negligence DRACOON is only liable for damages resulting from injury of life, body or health, for damages resulting from the violation of an essential contractual obligation (obligation the fulfilment of which makes the proper execution of this license agreement possible in the first place and on whose compliance the End User regularly relies and may rely); in this case DRACOON's liability is limited to the compensation of the typically occurring damage foreseeable at the time of conclusion of the contract.
- DRACOON is not liable for damages caused by simple negligence resulting from the violation of a non-essential contractual obligation.
- Notwithstanding the legal basis of liability DRACOON is not liable for any indirect or consequential damages, especially not for loss of profit and loss of interest, unless the damage is caused by intent or gross negligence of DRACOON.
- The End User is obliged to take reasonable measures to avert and reduce damages, in particular the End User has to make regular backups of data and to carry out security checks (in particular to prevent viruses, malware or other malicious software in the IT systems of the End User).
- As far as liability is effectively excluded or limited according to the above sub-paragraphs, this also applies to the personal liability of employees, other staff, organs, representatives and vicarious agents of DRACOON.
- In case of force majeure DRACOON is released from its obligation to perform as long as and to the extent the impediment to performance persists. Events of force majeure include in particular strike, lawful internal company industrial action, war, riots, forces of nature, fire, sabotage attacks by third parties (such as spam mails) or the loss of permits through no fault of DRACOON as well as the disruption of gateways through telecommunication networks that are not under the control of DRACOON.
- The legal limitations of liability in favor of providers of telemedia services and/or telecommunication services for the public remain unaffected.
§ 16Data protection and privacy
- If the End User purchases maintenance services from DRACOON and DRACOON obtains access to personal data of the End User in this context, the End User has to conclude an agreement with DRACOON on order processing according to article 28 DSGVO. For this purpose DRACOON GmbH provides a standardized template for download at https://support.dracoon.com/hc/en/articles/360000986405.
- The End User remains responsible for the compliance with the provisions of the data protection law and has to assure himself of the compliance with the technical and organizational measures (TOMs) taken by DRACOON (Art. 28 para. 1 DSGVO). According to Art. 32 DSGVO DRACOON takes appropriate measures to ensure the protection of personal data. The list of these TOMs can be downloaded here:Technical and organizational measures
- The obligations towards the persons concerned and their rights concern exclusively the End User.
- DRACOON undertakes to only employ personnel who are obliged to confidentiality according to the German Data Protection Act and who have been instructed about the regulations of the German Data Protection Act, the Federal Data Protection Act and other data protection regulations. Furthermore all employees of DRACOON are obliged to maintain the secrecy of telecommunications.
- If DRACOON is of the opinion that an instruction of the End User violates the DSGVO, the BDSG-neu or other data protection regulations it has to inform the End User immediately. Within the scope of this license agreement DRACOON shall upon request name the persons of the End User who are authorized to give instructions and control.
- DRACOON will inform the End User immediately in case of data protection-relevant disturbances and irregularities, especially in case of reasonable suspicion of data protection violations and in case of corresponding test results by supervisory authorities and/or other testing institutes, if these refer to data of the End User or if his service activity is affected.
§ 17Obligation to confidentiality, confidentiality agreement
- DRACOON and the End User agree to maintain silence about confidential information. This obligation will continue for a period of two years after termination of these license terms, for whatever reason.
- Such confidential information is excluded from this obligation,
- which was demonstrably already known to the recipient at the time of conclusion of these licence conditions or which subsequently became known to the recipient by a third party, without thereby infringing an obligation to confidentiality, statutory provisions or official orders
- which was publicly known at the time of conclusion of this license agreement or become publicly known thereafter, provided that this is not based on a violation of these license terms;
- which must be disclosed due to legal obligations or by order of a court or an authority. To the extent permissible and possible, the recipient obliged to make disclosure will inform the other party in advance and give it the opportunity to take action against the disclosure.
- DRACOON and the End User will only grant access to confidential information to those consultants who are subject to professional secrecy or who have been previously subjected to obligations of secrecy according to these license terms. Furthermore, the parties will only disclose confidential information to those employees who need to know it in order to use the DRACOON solution and will oblige these employees to maintain secrecy to the extent permitted by labour law also for the time after their departure.
- If DRACOON has transmitted or handed over documents to a potential End User during contract negotiations and this license agreement is not concluded, the End User has to return or destroy the documents immediately at DRACOON's discretion.
§ 18Applicable law, written form, place of jurisdiction, e-mail newsletter
- This license agreement between DRACOON and the End User shall be governed by the laws of the Federal Republic of Germany excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
- Changes or amendments to this license agreement must be in writing to be valid.
- in case of doubt regarding content and interpretation the German version of this license agreement shall be the authoritative and binding version. The German version of the EULA is available on DRACOON's website Endkunden-Lizenzbedingungen (EULA)
- Exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship and all disputes in connection with the contractual relationship is the registered office of DRACOON in Regensburg. However, DRACOON is in all cases also entitled to file suit at the place of performance according to these provisions or a prior individual agreement or at the general place of jurisdiction of the End User. Priority legal regulations, in particular regarding exclusive jurisdiction, remain unaffected.