Preamble

//SEIBERT/MEDIA GmbH, Luisenstraße 37-39, 65185 Wiesbaden, Germany (hereinafter: the Vendor) is the Vendor of software draw.io for Confluence, Jira, Trello, and other products (hereinafter: Software) and services in the Atlassian Marketplace at marketplace.atlassian.com (hereinafter: the Atlassian Marketplace). JGraph Ltd is a company formed in England, with a registered company number 04051179 and registered offices situated at Artisans' House, 7 Queensbridge, Northampton, NN4 7BF, England, and is the developer of the Software and owner of the intellectual property rights vesting in the Software (“Licensor”). The Licensor has granted an exclusive licence to the Vendor to market the Software on the Atlassian Marketplace. The Software licenced by the Licensor to the Vendor is exclusively available from the Atlassian Marketplace at marketplace.atlassian.com and the Vendor is entitled to grant sub-licences to use the Software through the Atlassian Marketplace.  The Vendor is also the owner of the draw.io listings at the Atlassian Marketplace.

The following terms apply to the contractual relationship between the Vendor and the acquirer of a sub-licence to use the Software (hereinafter: Buyer) on the Atlassian Marketplace (hereinafter: Licence).

If the Buyer gets access to the Software available on the Atlassian Marketplace via a telecommunications connection and the data generated by the use of the Software and/or the data required for the use of the Software including the respective and necessary licensing of the Software. However, the offer to get access to and licence the Software is directed exclusively to legal entities under public law, special legal funds under public law, or entrepreneurs.

This agreement (hereinafter: Agreement) sets out the terms upon which the Software is licenced and may be used by the Buyer. The term “Buyer” also includes its employees, agents, affiliated companies pursuant to § 15 AktG (German Stock Corporation Act) and subcontractors.

The terms of this Agreement apply when the Buyer first downloads, installs, or uses the Software, whichever occurs first. The Buyer will require a current and valid Licence key or active subscription to use and continue to use the Products. If the Buyer does not agree to the terms of this Agreement, the Buyer shall not download, install or use the Products or any services related to them.

The Software is protected by international copyright laws. The rights of use concerning the Software are subject to this Agreement and the Atlassian Cloud Terms of Service.

Any conflicting, deviating, or supplementary provisions proposed by the Buyer shall not become part of the Agreement unless the Vendor expressly agrees to their validity in writing.

This preamble and the provisions contained therein are also part of this Agreement.

1. Object

1.1

This Agreement grants permission to use the Software and to receive maintenance services. An overview of the current Software that the Vendor offers on the Atlassian Marketplace can be found on the Software listing on the Atlassian Marketplace (hereinafter: Documentation).

1.2

This Agreement covers the most current version of the Software at the time of conclusion of this agreement. 

1.3

Other services, including but not limited to installation, instruction, training, customization of the Software, or any other service, are not part of this Agreement. If the Vendor offers such services, they are to be agreed upon separately in writing.

2. Right of Use, Multiple Use, and Use on Networks

2.1

The Vendor grants the Buyer a non-exclusive, perpetual licence to use the Software (collectively, the “Usage Rights”).

2.2

These Usage Rights may only be exercised by the maximum number of users for whom the Buyer owns an Atlassian core Software licence such as Confluence and/or Jira. The Trello power-up is completely free at this point.

2.3

It is prohibited to provide the Software to more users than contractually agreed. A higher user-number package must be purchased if the number of users exceeds the contractually agreed upon number of users. The Buyer agrees to pay the difference through a new transaction in the Atlassian marketplace (upgrade).

2.4

The Buyer may use the Software on any compatible hardware available to them. If the Buyer changes their hardware, they must delete the Software from where it was installed on their old hardware.

2.5

The Vendor is neither responsible nor liable for the quality of the necessary hardware and software utilized by the Buyer nor for the telecommunications connection between the Buyer and the Vendor up to the point of interconnection. Especially for browser software, the Vendor requires the Buyer to use current versions of major internet browsers and at least those web browsers required by Atlassian for their core products.

2.6

Simultaneous use in production of more than one piece of hardware is not permitted.

3. Permitted Reuse and Access Restrictions

3.1

The Buyer may reuse the granted licence for the Software, only where the respective reuse is necessary to allow the contractually agreed-upon use of the Software. Necessary reuse includes in particular the development and testing of systems within the same IP network. For this purpose, multiple developer keys may be generated, insofar as the general provisions of Atlassian for staging, test, and development systems are met.

3.2

The Buyer agrees to take suitable precautions to prevent any unauthorized third-party access to the Software. The Buyer’s licence key is to be kept in a place secured against any unauthorized access by third parties. The Buyer's employees are required to comply with the present terms of this Agreement as well as with copyright law.

3.3

The Buyer is entitled to permanently transfer the Software to a third party by handing over the licence key. In this case, the Buyer shall completely cease using the Software and remove all installed copies of the Software. The third-party shall be bound by Atlassian´s Requirements and Specifications.

4. Recompilation and Program Modifications

4.1

The recompilation of the Software code into other code formats, as well as any other form of reverse engineering of the different production stages of the Software, to include any program modification, is permitted for private use only, in particular, to rectify errors. Private use within the meaning of this regulation limits the use of the Software for professional or commercial purposes to the Buyer or their employees and is not intended to be exploited commercially in any way.

4.2

The Buyer shall only be entitled to decompile the Software within the scope of § 69e UrhG (German Copyright Law) and only if the Vendor has not provided the necessary data and/or information in writing within a reasonable period of time following a corresponding request to do so in order to establish interoperability with other Software.

4.3

The Buyer is only entitled to make changes and other modifications to the Software within the meaning of § 69c UrhG to the extent that this is unconditionally permitted under the UrhG. Before the Customer itself rectifies defects or instructs a third party to do so, it shall first allow the Vendor to attempt to rectify the defect. 

4.4

Copyright notices and other features used for software identification may not be removed or changed.

5. Testing

Initially, the Buyer is entitled to test the Software free of charge for 30 days (subject to change by Atlassian). During this period, the Vendor is not obliged to provide any support or maintenance services. During this period, the Vendor's liability is excluded to the extent permitted by law.

6. Reproduction 

Reproductions of the Software are only permitted if it is essential for any use in compliance with this agreement.

7. Open Source Software

If Open Source Software is used in the Vendor’s product, it will not materially or adversely affect the Buyer’s ability to exercise Usage Rights in the Software.

8. Ownership

The Buyer does not acquire any rights or permissions other than by the licence granted by this Licence to use the Software for the term, in particular, does not become the owner of marketing materials, any Software or electronic media, intellectual property rights, methodologies, strategies, research, and designs. The Vendor and/or the Licensor reserve the right to use in any way it wishes any programming tools, skills, content, methodologies, strategies, and techniques acquired or used in performing its duties under this Licence.

The ownership of any data content created using the Software shall remain with the author of that content.

9. Maintenance Services

9.1

The Vendor offers the following services to the Buyer free-of-charge for the Software after the acquisition of the initial licence as part of the Software maintenance contract:

• The Buyer will get Software updates (updates)  released  in the way defined by Atlassian, when updates are released by the Licensor; and

• The Vendor shall provide the Buyer with technical support for troubleshooting and error (as defined in clause 12.2) resolution (hereinafter "Software Maintenance") for the Software as set out in clause 12.1 during the support hours referred to in clause 13.3 via the support channels listed in clause 11;

9.2

After the initial licence for the Software has been acquired, the Buyer has a right to claim Software Maintenance from the Vendor for a period of 12 months. During this maintenance period, the support channels listed in clause 11 shall be used.

9.3

After the initial maintenance period of 12 months ends, the right to receive Software Maintenance might be extended in accordance with clause 10.

9.4

Full particulars of these services are set out below in clauses 14, 15, and 16. The Vendor is entitled to have these services provided by third parties (hereinafter: Support Provider). The services are provided by the Licensor. 

10. Software Maintenance Renewal

10.1

The Buyer may renew the provision of Software Maintenance at any time by purchasing a Software Maintenance renewal. The purchased Software Maintenance renewal is subject to the provisions of this Agreement in the same way as the initial maintenance period.

10.2

Irrespective of the date of the Software Maintenance renewal, the duration of the new Software Maintenance period can be determined by the Buyer and begins with the first day after the end of the last maintenance period and ends with the last day of the period as determined by the Buyer.

10.3

All Software Maintenance renewals have to be performed through the Atlassian marketplace either directly or through an Atlassian solution partner and must meet the relevant conditions defined by Atlassian there.

11. Official Support Channels

The Vendor makes sure that the Support Provider offers the following support channels:

• A publicly accessible documentation 
• A publicly accessible helpdesk for registering new support tickets 
• Direct email support via support@draw.io 

The Vendor endeavors to be easily available during the support hours set out in paragraph §13.3  below, via email, chat, Atlassian forums, Vendor’s forums, social media, and other channels. However, availability is at the discretion of the Vendor. 

12. Included Services
12.1

The Vendor offers the following services with the Support Provider during support hours (please see clauses 14, 15, and 16 for full particulars of these services):

• Investigation of problems with the Software, 
• Analysis of errors (as defined in clause 12.2) and investigation of the underlying causes of the reported problems (root cause analysis),

The limited services as mentioned above comprise the entirety of the Vendor's obligation to provide support services. Furthermore, the Vendor is not obliged to provide further services. In particular, the Vendor is not obliged to provide installation, customization, programming, consulting, and training services. If the Vendor offers such services, they are to be paid for and agreed upon separately in writing. If additional services are offered for free as a courtesy, this does not imply any obligation for the future. If additional services are offered for free as a courtesy, the Vendor's liability is excluded to the extent permitted by law.

12.2

The Vendor shall use reasonable endeavors to resolve documented, reproducible errors in the Software (Software Maintenance) using competent personnel and according to accepted industry standards with the Support Provider. The Vendor is not responsible for the success of the resolution of errors and gives no guarantee in this respect. The Vendor’s sole obligation in respect of the resolution of errors is to use reasonable efforts with the Support Provider to provide Software Maintenance as set out in this Agreement. For this Agreement  an ‘error’ is a material non-compliance between the functionality of the Software with the Documentation for the Software, reported by the Buyerand which occurs other than by user error.If an error cannot be reproduced by the Licensor, it is not considered an error. The non-compliance has to cause a loss of functionality permanently and significantly. In this case, the parties shall endeavor to reach an agreement on the action to be taken. Such agreement may be reached between the Buyer and the Support Provider on behalf of the Vendor as well.

12.3

The Vendor is exempted from the obligation to perform Software Maintenancefor the Buyer (without affecting the payment obligation for the agreed purchase price of the Software), particularly:

• in the event of errors resulting from unauthorized modifications or alterations to the Software (both server-side and client-side);
• if the installation of the current or previous software versions, as well as the delivered error solutions, were not carried out, unless the delivered versions of error solutions are faulty;
• for Software versions released a period (e.g., more than one month) before the Buyer reported the error. This timeline is dependent on if and how Atlassian allows the Buyer to hold back updates (“Release Track”) for their instances in the Atlassian Cloud.
• in the event of errors due to the unauthorized use of the Software or incorrect operation, unless the Software is used following the user Documentation;
• for Software provided by the Vendor that is no longer developed or supported (end-of-life status), is intended to be used for test purposes and is, therefore, an unfinished version of the Software (beta version), is created as a final test version (release candidate) and/or is a development version (development release) or used as a free version;
• for any hardware defects;
• when the Software is used on hardware, software (not limited to but especially not current web browsers), and operating system environments other than those specified in the user documentation;
• in the event of disruptions caused by force majeure or similar circumstances;
• alterations to the Software made by the Buyer in breach of this Agreement;
• alterations to the Software, performed by technicians outside of the Vendor, other than the Licensor,  without the Vendor's prior written consent.

If the Vendor or the Support Provider offers such services, they are to be agreed upon in writing and paid for separately.

12.4

The Buyer shall understand that neither the Vendor nor the Hosting Provider store any application data and thus the Buyer shall undertake adequate data backup measures to ensure that any data to be recovered is stored in a machine-readable format and that the Buyer can recover with minimum effort. Atlassian offers the following guidelines for Atlassian’s Jira Cloud backups and Confluence Cloud backups.

13. Error Reporting, Obligation to Cooperate, and Support Hours

13.1

The Buyer must immediately report any errors that may occur with a detailed description of the problem using the support channels listed in clause 11.

13.2

For the execution of the contractual services, cooperation by the Buyer must be complete and punctual. The obligation to cooperate includes the following items in particular:

• The Buyer must observe all applicable laws and regulations. It is prohibited to transfer data or content to the Vendor's Servers that violate legal provisions or infringe third-party property rights or copyrights, or other rights of third parties.
• When reporting an error, all documentation, log files, and other information relevant to troubleshooting shall be made available without delay;
• Only data free from computer viruses or other harmful code may be transmitted;
• The Buyer may use no software, technologies, or procedures in connection with the use of the contractual Software that is capable of affecting its operation, security, and availability.
  

13.3

To transmit error reports, the Buyer can reach the Support Provider during support hours on workdays between 09:00 and 17:00 (GMT). Workdays include Monday to Friday, except for all public holidays in England, in addition to the following days: 24 December and 31 December. The Vendor reserves the right to change support times as needed.

13.4

The support cases’ processing, considering the reaction and solution times specified in clauses 15, 16, shall be carried out during the support hours specified in clause 13.3.

14. Error Classification Levels

14.1

In the case of error reports, the Vendor shall make sure that the Support Provider uses reasonable endeavors to ensure that processing of the support cases is carried out within the response and resolution times specified in clauses 15, 16. The response and resolution times depend on the classification level; the following error classification levels apply:

• Priority 1: Critical error. The use of the whole or a material part of the Software is impossible or significantly restricted. A significant limitation exists where the whole or a material part of the Software no longer works, and no functional workaround can be achieved (“significant limitation”).
• Priority 2: Other disturbances. Any other problems with the Software.

14.2

The Vendor shall make sure that the Support Provider uses reasonable endeavors to handle all support cases on time periods set out below . Priority 1 errors are given priority over priority 2 errors, irrespective of the time they were registered in the support system.

15. Response Time

15.1

Response time is the period between the report of an error and the first action taken by the Support Provider. The period starts with receiving the corresponding support request through an official support channel according to clause 11 within the support hours specified in clause 13.3. and runs exclusively during the agreed support hours. If a message appears outside the agreed support hours, the response time begins with the next support period.

15.2

The Vendor shall make sure that the Support Provider uses reasonable endeavors for the following response times according to the error level: Priority 1: 4 hours and Priority 2: 8 hours.

15.3

The response times are the Vendor's declared aspiration. In particular, regarding the provision of clause 14.2., the Vendor does not guarantee the observance of the stated response times. Non-compliance with these response times does not constitute any right for the Buyer to reduce the price, claim for reimbursement, terminate the Agreement, or seek any other form of compensation.

15.4

For international Buyers: Although the service hours are European times, the Vendor offers support internationally at relatively fast answer rates. When writing this passage, the Vendor’s support system recorded the median response times during the previous 12 weeks as follows: Median response time: 15m, Median first response time: 32m, Median time to close: 57m. However, such response times are subject to change. 

16. Resolution Time

16.1

The resolution time is the maximum time before troubleshooting resolves the error or a workaround is implemented after the start of work on a support case.

16.2

The Vendor shall make sure that the Support Provider uses reasonable business endeavors for the following resolution times according to the error classification levels: Priority 1: 16 hours and Priority 2: 40 hours.

16.3

The response times are the Vendor's target resolution times over the average of the last 5 incidents of that priority level. Any specific incident resolution time will vary. In particular, regarding the provision of clause 14.2., the Vendor does not guarantee the observance of the stated average response times. Non-compliance with these response times does not constitute any right for the Buyer to reduce the price, claim for reimbursement, terminate the Agreement, or seek any other form of compensation.

17. Limitation of liability

The Vendor shall be liable for damages resulting from this Agreement , for whatever actual or legal reasons, only under the following regulations:

17.1

In the case of willful intent, gross negligence, claims under the German Product Liability Act, or in the case of a loss of life or personal injury, the Vendor shall be liable without restriction under statutory provisions.

17.2

Insofar as the Vendor culpably infringes an essential contractual obligation, the liability for all cases shall be limited to the foreseeable damage at the time of conclusion of the Agreement up to a total amount for all damages per calendar year, which corresponds to 100% of the purchase price paid by the Buyer in this calendar year, as far as the Buyer can prove the damage. Such a fundamental obligation will always exist, where the obligation is essential for the due and proper implementation of the Agreement, and on which the Buyer trusted and could reasonably rely. This limitation of liability also applies to data loss and data corruption. An essential contractual obligation in the meaning of this agreement is any obligation the fulfillment of which necessarily enables the proper performance of the Agreement and the observance of which the other party of the Agreement regularly relies on.

17.3

Liability is excluded in the event of negligent violation of other non-essential contractual obligations and (where appropriate laws authorize) in respect of indirect and/or consequential losses including but not limited to special damage even if the Vendor was aware of the circumstances in which such special damage could arise; loss of profits; loss of anticipated savings; loss of business opportunity; loss of goodwill; loss or corruption of data.

17.4

The Vendor will indemnify and hold the Buyer harmless from any claim, suit, or proceeding brought against it based on a claim that the Vendor has infringed or is infringing any third party's trademark, copyright, patent, or other intellectual property right in or concerning the Software. The maximum damage that the Vendor is liable for is limited as in clause 17.2.

17.5

The Vendor shall not be liable for the loss of the Buyer‘s application data insofar as the damage is due to the Buyer failing to carry out data backups, thereby ensuring that the Buyer can restore lost data with reasonable effort.

17.6

The Buyer will indemnify and hold the Vendor harmless for any claim, suit or proceeding brought against it based on (i) any breach by the Buyer of applicable data protection laws; and/or (ii) any infringement of the intellectual property rights in the Software.

18. Fees

All costs for the Software are defined in the Atlassian Marketplace. In the Atlassian Marketplace, the Buyer purchases and pays directly unless they work with an Atlassian Solution Partner.

19. Defects

In case of a defect  (which is not an ‘error’) of the Software, the Vendor shall in its sole discretion remedy the defect immediately or to deliver a replacement free of defects if the Buyer notifies the Vendor of the defect. Claims based on a defect shall become statute-barred within one year of the Software being provided by the Vendor.

20. Warranty

20.1

The Vendor guarantees that the Software has the quality as defined in this Agreement.

20.2

The Vendor also guarantees that it is entitled to grant the sublicence in accordance with the Licence.

20.3

The Vendor does not accept any additional guarantees. All other conditions, warranties, or other terms which might have effect between the parties or be implied or incorporated into this Licence, whether by statute, common law, or otherwise, are hereby excluded, including the implied conditions, warranties, or other terms as to the satisfactory quality, fitness for purpose or the use of reasonable skill and care.

20.4

Warranty claims shall become statute-barred within one year of the Software being provided by the Vendor.

21. Quotation for Marketing Purposes

The Vendor is entitled to use the Buyer's name, including its logo, as a reference for advertising purposes. The Buyer can send an Email to no-marketing@drawio-app.com at any time. By receipt of this Email, the Vendor shall endeavor to cease future use within one week.

22. Export and Import Control 

The licence and services under this Agreement may be subject to export and import restrictions in certain countries. The Buyer shall comply with the applicable export and import control regulations. The performance of the Agreement by the Vendor is subject to the provision that there are no obstacles to performance due to national and international export and import law provisions or any other statutory provisions.

23. Termination

The Vendor shall be entitled to terminate the obligation of providing the agreed on Software Maintenance (clause 9) without notice if, in particular: the Buyer breaches their obligations under thisAgreement and if, despite an appropriate grace period with a rejection warning, they do not put an end to the breach or demonstrate that appropriate measures have been taken to suitably prevent the repetition of the breach of contract in the future. 

The right to extraordinary termination for good cause (§ 314 BGB) remains unaffected.

24. Miscellaneous

The Vendor is not responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, epidemics, pandemics or an outbreak of infectious disease, quarantines, national or regional emergencies, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (“Force Majeure”); it being understood that the Vendor is to use commercially reasonable efforts that are consistent with accepted practices in the software industry to resume performance as soon as practicable under the circumstances.

All agreements are contained within this contract.

The applicable law and the place of jurisdiction for all disputes arising out of or in connection with the Agreement shall be Frankfurt am Main (Germany) under the law of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

Should a provision of this Agreement be or become invalid, all other provisions shall remain unaffected. Such an invalid provision shall be replaced with a provision in line with the intention that the parties could reasonably attribute to the Agreement at the time of entering into said Agreement.

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