1. Definitions

In this End User Licence Agreement, we use the following terms, including but not limited to:

“Accessible Code” means source code that is unprotected and accessible.
“Affiliate” means another legal entity controlled by or under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting shares or of the voting directors of the entity concerned.
“Authorised User” means a person who accesses and uses the Software under a User License.
“Cloud Products” means kyona Software hosted in the cloud.
“Data Functions” – means functions included in the Software to obtain information about usage from the servers where the Software is installed. The Licensee may freely disconnect the Data Functions at any moment.
“Embedded Software” means any third-party software that may contain Accessible Code, Proprietary Code or Media licensed by Licensor from a third-party and embedded in the Software.
“Fees” means all fees and expenses payable by the Licensee to the Licensor for the use of the Software and, where applicable, for Maintenance or User Licenses.
“Free License” means a license for which the Fees are waived by the Licensor.
“Maintenance” means the provision by the Licensor to the Licensee, of Software updates and/or enhancements made generally available to customers from time to time, and online technical support for the sole purpose of addressing technical issues relating to the use of the Software.
“Media” means all images, icons, text files, pdf’s or other static non-code assets contained within the Software.
“OEM Distribution” means distribution of the Software either as a bundled add-on to, or embedded component of, another application with such application being made available to its users as, but not limited to, an on-premises application, a hosted application, a Software-as-a-Service offering or a subscription.
“Paid License” means a license for which Fees have not been waived by the Licensor.
“Parties” means either the Licensor or the Licensee or both.
“Products” means the Software, Maintenance, Cloud Products and other services or data, distributed by kyona or any Reseller.
“Protected Code” means any source code that is protected against access by the Licensee and any third-party without the Licensor’s prior written permission and is otherwise not accessible under this EULA.
“Purchase” means acquisition of the User License from a Reseller or Licensor.
“Reseller” means a third-party seller and distributor of Products under authorization from the Licensor.
“Software” means the Licensor’s “kyona” branded software that accompanies this EULA, which may include computer software, Accessible Code and Proprietary Code, associated media, Media, printed materials, electronic or online documentation, Internet-based services and Embedded Software.
“Term” means the moment up to which one License is valid.
“User License” means a license granted to the Licensee under this EULA to permit an Authorised User to use the Software. The number of User Licenses granted to the Licensee depends on the Fees paid by the Licensee.
“kyona” means kyona GmbH, its subsidiaries or kyona AE FZ LLC.

2. Grant of License

The licence holder acquires a software licence through the purchase and receives a copy of the software for use. This purchase licences the use of the software. Upon Licensee’s acceptance of this EULA, Licensor grants the Licensee the non-exclusive and a non-transferable right to use the Software in accordance with the following conditions:

2.1 Paid License

2.1.1 Authorised Users

The licenses granted are subject to the condition that the Licensee must ensure the maximum number of Authorised Users accessing and using the Software concurrently is equal to the number of User Licenses for which the necessary Fees have been paid to the Reseller or Licensor. The Licensee may purchase additional User Licenses at any time on payment of the appropriate Fees to the Reseller or Licensor.

2.1.2 Data Backup

The Licensee is permitted to copy the Software for data protection, archiving and backup purposes only and for no other purpose. However, only the strictly necessary number of backup copies may be made.

2.2 Evaluation License

2.2.1 Installation and Use

Licensor may, at its sole discretion, provide the Licensee with evaluation copies of the Software, which may have limited functionality, in order to evaluate the Software. Such evaluation copies will be provided under an Evaluation License that limits the period during which the Licensee may download, install, use and operate the Software (“Evaluation Period”) and limits the number of temporary users. Upon the expiry of the Evaluation Period the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.

2.3 General License Terms

2.3.1 Scope

Each License granted by the Licensor under this EULA is, unless otherwise specified in this EULA or agreed by Licensor in writing, a worldwide, non-exclusive and non-transferable authorization to use the Software until the end of the term of the License Agreement.

The Licensee must:
(a) ensure that only an Authorised User uses the Software and only in accordance with the terms and conditions of this EULA and
(b) ensure that the Software is not used for rental, times haring, subscription service, hosting or outsourcing.

The Licensee must not, whether through negligent act or omission, or without the prior written consent of the Licensor, which may be withheld at Licensor’s sole discretion and on Licensor’s conditions:
(a) decompile; reverse engineer; disassemble; modify; adapt; create derivative works from; or otherwise attempt to derive; any part or whole of the Software (except to the extent necessary to obtain the information necessary to establish the interoperability of an independently created computer program with other programs and except to the extent that the results may be used solely to establish interoperability by those authorised under this EULA);
(b) directly or indirectly access or use any Embedded Software independently of the rest of the Software;
( c) sell; sublicense; rent, redistribute; reproduce; transmit; circulate or  disseminate the license; translate or reduce to or from any electronic medium or machine readable form the Software or any data/information not owned by the Licensee which is provided to the Licensee through the Software to a person who is not an Authorised User;
(d) vary or amend the Software (including any Embedded Software; Protected Code or Accessible Code);
(e) except as otherwise permitted in this EULA, to publish; promote; broadcast; distribute or refer publicly of the Licensoґs name; trade name; trademark; service mark or logo;
(f) commit any act or omission the likely result of which is that Licensor or any of its third-party suppliers reputation will be brought into disrepute or which could reasonably be expected to have or does have a material and adverse effect on Licensor interests;
(g) distribute the Software via OEM Distribution without entering into a separate OEM Distribution Agreement with the Licensor; or
(h) copy or embed elements of the Accessible Code contained in the Software into other software.

2.3.2 Duration

Subject to the terms of this EULA and unless terminated earlier in accordance with this EULA, the term granted hereunder shall be: (a) for a Paid License of the downloaded Software, perpetual; (b) for a Cloud Product, the period of time of the Paid License subscription or renewal, or (c) for an Evaluation License, the Evaluation Period.

2.3.3 Permitted Computers

Except as otherwise agreed in writing by the Licensor, the Licensee must only install the Software and make the Software available for use on hardware systems owned, leased or controlled by the Licensee.

2.3.4 Protection Mechanisms

The Software includes license protection mechanisms that are designed to manage and protect the intellectual property rights of the Licensor and its third-party suppliers. The Licensee must not modify, alter, attempt to defeat or defeat such protection mechanisms or the use rules that the protection mechanisms are designed to enforce. Any such violation by the Licensee will result in the immediate termination of the License.

2.3.5 Data Functions

The Software contains some functions created to obtain data regarding the server and usage of the Software that will be sent to the Licensor, and that data will be used only for the Licensor internal purposes to improve and develop the Software capacities and performance.

Upon the Licensee’s acceptance of this EULA, the Licensee also declares to authorize the Licensor to receive and use the data obtained by Data Functions, only for the internal purposes referred above, and on the further confidential and non-disclosure terms and conditions included at the kyona Privacy Policy (http://kyonagroup.com/privacy/), that the Licensee hereby declares to know.

The Licensee also grants the Licensor the right to grant these rights of use for the storage, processing and forwarding of the anonymised data mentioned here to those third parties who provide services for the Licensor in order to improve and develop the capacities and performance of the software.

2.3.6 Responsibility for Non-Controlled Systems

If the Licensor permits the Licensee to install the Software or make the Software available for use on hardware systems not owned, leased or controlled by the Licensee (“Non-controlled Systems”), the Licensee will ensure by means of written agreements that the users of such Non-controlled Systems comply with the terms of this EULA and the Licensee will indemnify the Licensor against all costs, damages and loss it suffers arising from such installation or use of the Software on Non-controlled Systems. If a Licensee is unable to produce such a written agreement upon request by the Licensor and also fails to comply with the request for proof within 14 days, the Licensor shall be entitled to terminate the EULA without notice. 

3. Fees

The Licensee must pay all Fees by their due date notified to the Licensee and in the manner directed at the time of Purchase of the User License. Failure to pay the Fees by the due date will result in the immediate termination of the Licenses granted under this EULA.

4. Maintenance and Support

4.1 Additional Software and Services

This EULA applies to updates, supplements, add-on components, or Internet-based services components of the Software (“Supplementary Software”) that the Licensor may provide to the Licensee or make available to the Licensee after the date the Licensee obtains its initial copy of the Software, unless the Licensor provides other terms along with any Supplementary Software. The Licensor reserves the right to modify and/or discontinue any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.

4.2 Support Services

The Licensor may offer support services, and such services may be subject to the payment of additional fees. Any such support services will be the subject of a separate agreement available here (https://kyonagroup.com/en/sla/).

5. Intellectual Property

5.1 Ownership and Reservation of Rights

The Licensor retains all rights, title and interest in and to the Software (other than Embedded Software), as well as all intellectual property rights (such as copyright, patent and trademark) in and to the Software not expressly granted to the Licensee in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. The Licensee does not acquire any rights of ownership in the Software hereunder.

5.2 Embedded Software

The Licensee acknowledges that the Software contains Embedded Software and that, in addition to the obligations of this EULA, additional obligations may apply to the Licensee in relation to any use of Embedded Software, which is not in accordance with the use of the Software as permitted under the terms of this EULA. In such circumstances, the Licensee must consult the relevant third party to acquire any necessary licenses and consents in relation to its use of any Embedded Software.

The Licensor shall inform the Licensee of any embedded software, stating the version used at the time the licence was purchased.

5.3 Benchmarking

Whilst the Licensee is permitted to carry out benchmarking of the Software as a whole against other software, the Licensee may not carry out benchmarking of the Software functions or any part thereof by means of which technically non-comparable functions and/or features of the Software are compared with other non-comparable functions or features of other software and/or by means of which these results are published.

5.4 Licensee Shall Not Remove Markings

The Licensee may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings on or in the Software. The Licensee is not granted any rights to any trademarks or service marks of the Licensor that go beyond the customary naming of the software used vis-à-vis customers or service companies working for the Licensee.

6. Warranty and Disclaimer

6.1 Due Authority

Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party that is empowered with all necessary authority to bind such party to the terms and conditions of this Agreement.

6.2 Warranty within the scope of the law – no guarantee

The Licensor shall be liable to the Licensee within the framework of the applicable laws for ensuring that the software provided can be used in accordance with the contract.

However, the Licensor excludes any guarantees or assurances that go beyond the statutory guarantee of use in accordance with the contract.

The warranty period for commercial customers is one year and begins on the day the contractual software is provided.

For non-commercial customers, the statutory warranty period of two years applies; it begins on the day the software is provided.

7. Breach by Licensee

7.1 General

If the Licensee discovers it has breached any of its obligations under this EULA and in particular but not limited to the obligations in Clause 7 or Clause 5, the Licensee must immediately report such breach to Licensor in writing.

7.2 Breach of Additional Licenses

Where a breach involves the distribution or use of Software outside of the terms of the User License or any Additional User License (including but not limited to the use and distribution of Embedded Software), the Licensor and/or any third-party owner of Embedded Software will be entitled (without prejudice to any other right or claim that Licensor or any third party owner of Embedded Software may have against the Licensee) to charge the Licensee, in addition to any other Fees payable by Licensee under this EULA, a fee calculated based on the number of prohibited distributions or uses multiplied by the respective list prices that the Licensor and/or any third-party owner of Embedded Software charges for the Software or Embedded Software respectively.

8. Investigation of Unauthorised Use and Distribution

If the Licensor reasonably suspects that the Software has been distributed to or obtained by any person or party without the Licensor’s prior written consent, that the Embedded Software is being varied or accessed or used independently of the Software or that Licensee is otherwise breaching a term of this EULA and in particular, but without limitation, its obligations under Clause 7, the Licensor reserves the right to require the Licensee to provide an unqualified certificate executed by the Licensee’s auditor verifying compliance with the terms of this EULA. Such requests shall be made no more frequently than once per calendar year. If such an unqualified certificate is not received by the Licensor within ninety (90) calendar days of being required, it will be considered that a breach of this EULA has occurred allowing the Licensor to terminate the licenses granted under this EULA.

9. Termination

9.1 Termination of this EULA

Without prejudice to any other rights and in addition to any other termination rights in this EULA, kyona as the Licensor may terminate with immediate effect this EULA, through a written notification sent to the Licensee, if

(a) the Licensee breaches the terms of this EULA and fails to remedy such breach within fourteen (14) days of the date on which the Licensee receives notice of such breach from the Licensor; or
(b) the Licensee suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts; or
(c ) the Licensee commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of Licensee (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of Licensee with one or more other companies or the solvent reconstruction of the Licensee; or
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Licensee (being a company); or
(f) the holder of a qualifying floating charge over the assets of the Licensee (being a company) has become entitled to appoint or has appointed an administrative receiver; or
(g) a person becomes entitled to appoint a receiver over the assets of the Licensee or a receiver is appointed over the assets of the Licensee; or
(h) a creditor or encumbrancer of the Licensee attaches or Licensee takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Licensee’s assets and such attachment or process is not discharged within 14 days; or
(i ) the Licensee suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
j) in the event of misuse of the software for unlawful purposes, such as criminal offences or offences punishable by fines, technical use contrary to the intended purpose or damage to the software, regardless of the reason.

9.2 Obligations of the Licensee

Immediately upon termination of a license granted under this EULA, the Licensee must at its own cost:

(a) cease permitting access to and ensure that all Authorised Users or third party service providers immediately cease all use of the Software; and
(b) remove all copies of the Software from its computer systems or any Uncontrolled Systems; and
(c ) provide the Licensor with written certification that it has destroyed all copies of the Software including but not limited to, all Accessible Code in its possession, custody or control and that they have also been removed from non-controlled systems under contractual obligation and that the Service Providers have sent it an assurance to that effect.

9.3 Termination of the service

Upon at least thirty (30) days’ notice, the Licensor reserves the right to terminate any Internet-based services provided to the Licensee or made available to the Licensee through the use of the Software.

9.4. The right to terminate the contract without notice

The above provisions shall not affect the right to terminate the contract without notice, in particular due to the unreasonableness of continuing the contractual relationship.

9.5. No reimbursement of licence payments

In the event of termination without notice by the Licensor based on one or more breaches of contract by the Licensee which make the continuation of the contractual relationship appear unreasonable, any reimbursement of licence fees shall be excluded.

10. Indemnification

10.1 Indemnification by Licensor

Subject to Clause 12, the Licensor shall indemnify the Licensee against all costs, expenses, losses and claims made against the Licensee as a result of any infringement of a third-party’s intellectual property rights arising from the Licensee’s or its Authorised User’s use of the Software. The Licensee must notify promptly the Licensor of the charge of infringement or of the legal proceeding, give the Licensor sole control of the defence and related settlement negotiations, and Licensee must provide the Licensor, at the Licensor’s expense, with reasonable assistance and information, but no cost or expense shall be incurred for the account of the Licensee without its prior written consent.

If the Software becomes, or in the opinion of the Licensor may become, the subject of a claim of infringement of any third-party’s intellectual property rights, the Licensor may, at its option and at its discretion:
(a) procure for the Licensee the right to use the Software free of any liability;
(b) replace or modify the Software to make it non-infringing; or
(c ) refund any license Fees related to this Software paid by the Licensee. The foregoing states the sole liability of the Licensor and the exclusive Licensee remedy for any infringement of intellectual property rights by the Software or any other items provided by the Licensor under this EULA. Excluded from this provision of limitation of liability pursuant to 10.1. (c ) is the case of injury to life, limb or health due to the Software provided by the Licensor and the damage caused by the Software and for which the Licensor is responsible.

10.2 Indemnification by Licensee

The Licensee shall indemnify the Licensor on first demand against all costs, expenses, losses and claims and thus all financial disadvantages made against the Licensor as a result of any infringement of a third-party’s intellectual property rights arising from the Licensee’s or its Authorised User’s unauthorised use of the Software under this EULA.

The Licensor and the Licensee shall each inform the Licensor or the Licensee without delay of the respective allegation of infringement or the legal proceedings in the event of a justified warning by third party rights holders.

In the event of a licence infringement against a third party by the licensor, the licensor shall take over the defence – also for the licensee – and conduct it at its own expense.

The Licensor shall therefore also defend itself against the rights holder on behalf of the Licensee and coordinate with the Licensee on the latter’s defence and the associated settlement negotiations. In the event of an infringement by the Licensee, the Licensor shall provide the Licensee with appropriate support and information at the Licensee’s expense, although no costs or expenses may be incurred by the Licensor without the Licensor’s prior express written consent.

11. Limited Warranty

11.1 Cloud Products Disclaimer of Warranties

The Licensee acknowledges that the Licensor’s Cloud Products are hosted by third-parties, and that the availability of those Cloud Products is subject to the third-party’s Service Level Agreement.

11.2 Non-Excludable Remedies

The Licensee may have remedies against the Licensor imposed by law or statute that cannot be excluded by the Licensor and its third-party suppliers. To the extent the Licensee has such legal remedies against the Licensor or its third-party suppliers then to the fullest extent permitted by law, the Licensor and its third-party suppliers’ liability are limited
(a) at the Licensor’s option, to:
( i) in the case of the Software:
1) repairing or replacing the Software; or
2) the cost of such repair or replacement; and
(ii) in the case of Maintenance;
1) resupply of the Maintenance; or
2) the cost of having the Maintenance supplied again; or
(b) if the limitation is not applicable, then the Licensor’s maximum liability shall be equal to two times the amount actually paid by the Licensee for the Software.

This limitation of liability pursuant to 11.2. shall not apply insofar as the statutory claims of the Licensee against the Licensor are affected, which are based on the fact that life, limb and health of the Licensee or a person working in the Licensee’s sphere of duties have been injured and the Licensor is responsible for this.

12. Limitation of Liability

The following limitations of liability 12.1. and 12.2. also only apply insofar as the Licensor is not responsible for damage to life, limb or health caused by the Software. In these cases, the statutory liability regulations shall apply without limitation. Otherwise, the following provisions in accordance with 12.1. and 12.2. remain unaffected.

12.1 The Licensor shall not be liable to the Licensee where faults arise from:

(a) the possession, use, development, modification or maintenance of the Software (or any part thereof) by the Licensee other than in accordance with this EULA, if the infringement would have been otherwise avoided;
(b) misuse due to unlawful use such as criminal offences or offences punishable by fines, technical use contrary to the intended purpose or damage to the Software from whatever cause (other than any act or omission by);
(c ) any breach of the Licensee’s obligations under this EULA or any other statutory legal regulation;
(d) any modification not authorised by Licensor resulting in a departure from this EULA; or
(e) any operator error on the part of the Licensee.

12.2 Limitation on Damages

Notwithstanding anything in this Agreement – with the exception of the provisions on injury to life, limb and health, according to which no limitations of liability apply – and except for liabilities arising from
(i) the indemnity obligations under Clause 12 (indemnity),
(ii) the gross negligence or wilful misconduct of a party, or
(iii) the breach of a party’s obligations under Clause 5 relating to intellectual property rights (for example, copyright, patent or trade mark rights) or data protection law), the following rules shall apply
(a) the Licensor or its third-party suppliers shall be liable with respect to any subject matter of this Agreement under any contract; tort including negligence or strict liability; indemnity or other legal, contractual or equitable theory for any indirect, special, punitive, incidental or consequential damages, however caused and whether or not advised in advance of the possibility of such damages; damages for lost profits or lost data; or cost of procurement of substitute goods, technology or services; or
(b) the Licensor’s aggregate liability arising under, with respect to, or in connection with this Agreement shall not exceed three times the Fees actually paid by the Licensee for the Software.

13. Data Protection – personal data – rights of data subjects

If personal data is processed by the Licensee itself and other persons such as employees or service providers of the Licensee, they are data subjects within the meaning of the GDPR and they are entitled to the following rights vis-à-vis the data controller at the Licensor:

13.1 Right to information

Data subjects may request confirmation from the controller as to whether personal data concerning them is being processed by the licensor.

If such processing has taken place, the data subjects can request the following information from the controller:

(1) the purposes for which the personal data are processed;

(2) the categories of personal data that are processed;

(3) the recipients or categories of recipients to whom the personal data concerning the data subject have been or will be disclosed;

(4) the planned duration of storage of the personal data concerning the data subjects or, if specific information on this is not possible, criteria for determining the storage period;

(5) the existence of a right to rectification or erasure of personal data concerning the data subject, a right to restriction of processing by the controller or a right to object to such processing;

(6) the existence of a right of appeal to a supervisory authority;

(7) all available information on the origin of the data if the personal data are not collected from the data subject;

(8) the existence of automated decision-making including profiling in accordance with Art. 22 (1) and (4) GDPR and – at least in these cases – meaningful information on the logic involved and the scope and intended effects of such processing for the data subject.

13.2 Right to rectification

The data subjects have a right to rectification and/or completion vis-à-vis the controller if the processed personal data concerning the data subjects is incorrect or incomplete. The controller must carry out the rectification without undue delay.

13.3 Right to restriction of processing

Under the following conditions, data subjects may request the restriction of the processing of personal data concerning them:

(1) if the data subject contests the accuracy of the personal data concerning him or her for a period enabling the controller to verify the accuracy of the personal data;

(2) the processing is unlawful and the data subject opposes the erasure of the personal data and requests the restriction of their use instead;

(3) the controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defence of legal claims, or

(4) if the data subject has objected to processing pursuant to Art. 21 (1) GDPR and it has not yet been established whether the legitimate grounds of the controller override those of the data subject.

Where the processing of personal data concerning the data subject has been restricted, such data shall, with the exception of storage, only be processed with the data subject’s consent or for the establishment, exercise or defence of legal claims or for the protection of the rights of another natural or legal person or for reasons of important public interest of the Union or of a Member State.

13.4 Right to cancellation

13.4.1 Duty of cancellation

Data subjects may request the controller to erase personal data concerning them without undue delay and the controller shall have the obligation to erase such data without undue delay where one of the following grounds applies:

(1) The personal data relating to the data subjects are no longer necessary for the purposes for which they were collected or otherwise processed.

(2) The data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2) GDPR, and where there is no other legal ground for the processing.

(3) The data subjects object to the processing pursuant to Art. 21 (1) GDPR and there are no overriding legitimate grounds for the processing, or the data subjects object to the processing pursuant to Art. 21 (2) GDPR.

(4) The personal data of the persons concerned have been processed unlawfully.

(5) The deletion of personal data concerning the data subject is necessary to fulfil a legal obligation under Union law or the law of the Member States to which the controller is subject.

13.4.2 Exceptions

The right to erasure does not exist if the processing is necessary

(1) to exercise the right to freedom of expression and information;

(2) for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(3) for reasons of public interest in the area of public health in accordance with Art. 9 para. 2 lit. h and i and Art. 9 para. 3 GDPR;

(4) for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Art. 89 para. 1 GDPR, insofar as the right referred to in section a) is likely to render impossible or seriously impair the achievement of the objectives of that processing, or

(5) for the assertion, exercise or defence of legal claims.

13.5 Right to information

If the data subject has asserted the right to rectification, erasure or restriction of processing against the controller, the controller is obliged to communicate any rectification or erasure of personal data or restriction of processing carried out to each recipient to whom the personal data concerning the data subject have been disclosed, unless this proves impossible or involves disproportionate effort.

The data subjects have the right to be informed of these recipients by the controller.

13.6 Right to data portability

The data subjects have the right to receive the personal data concerning them, which they have provided to the controller, in a structured, commonly used and machine-readable format. In addition, the data subjects have the right to transmit this data to another controller without hindrance from the controller to which the personal data has been provided, where

(1) the processing is based on consent pursuant to Art. 6 para. 1 lit. a GDPR or Art. 9 para. 2 lit. a GDPR or on a contract pursuant to Art. 6 para. 1 lit. b GDPR and

(2) the processing is carried out by automated means.

In exercising this right, data subjects also have the right to have the personal data concerning them transmitted directly from one controller to another, where technically feasible. The freedoms and rights of other persons must not be impaired by this.

The right to data portability does not apply to the processing of personal data necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

13.7 Right of objection

Data subjects have the right to object, on grounds relating to their particular situation, at any time to processing of personal data concerning them which is based on point (e) or (f) of Article 6(1) GDPR, including profiling based on those provisions.

The controller shall no longer process the personal data concerning the data subject unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.

Where personal data concerning the data subject are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing.

If the data subject objects to the processing for direct marketing purposes, the personal data relating to the data subject will no longer be processed for these purposes.

13.8 Right to revoke the declaration of consent under data protection law

The data subjects have the right to revoke their declaration of consent under data protection law at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal.

13.9 Automated decision-making in individual cases including profiling

As a responsible company, kyona does not use automated decision-making, including profiling

13.10. Right to lodge a complaint with a supervisory authority

Without prejudice to any other administrative or judicial remedy, data subjects shall have the right to lodge a complaint with a supervisory authority, in particular in the Member State of their habitual residence, place of work or place of the alleged infringement if the data subject considers that the processing of personal data relating to them infringes the GDPR.

Data subjects can find an overview of the supervisory authorities at: https://www.bfdi.bund.de/DE/Infothek/Anschriften_Links/anschriften_links-node.html. The supervisory authority with which the complaint has been lodged shall inform the complainant of the status and outcome of the complaint, including the possibility of a judicial remedy pursuant to Art. 78 GDPR.

The Licensee undertakes to carry out the data processing specified in the kyona data protection declaration (https://kyonagroup.com/en/privacy-policy/).

14. Licensee Publicity Rights

During this EULA validity, the Licensee grants the Licensor the right to include the Licensee as a customer in promotional material for Software, including the Licensee’s logo. The Licensee may deny or revoke this right to the Licensor at any time by sending a written request via https://kyonagroup.com/de/kontakt/ or an email to [email protected] to request exclusion from software promotional material. Requests will generally be processed within thirty (30) calendar days.

15. Improving Licensor’s Products

The Licensor is always striving to improve its products. In order to do so, the Licensor needs to collect pseudonymised, i.e. untraceable information about its users and to measure, analyse, and aggregate how its users interact with its products, such as usage patterns and characteristics of its user base. The Licensor collects such information and uses the information as per its Privacy Policy. The Licensee declares hereby to authorize Licensor to collect and treat that information just for the purposes referred above, and the Licensee also declares to have reviewed and agreed to the Licensor’s Privacy Policy.

16. Amendment

This EULA may not be amended except with the written and specified agreement of the Licensor whose consent may be withheld at its complete discretion without any requirement to provide reasons.

17. Assignment

The Licensee may assign this EULA to:
(i) succeeding parties in the case of a merger, acquisition or change of control; or
(ii) if the Licensee is a supplier to a government agency; provided, however, that in each case,
(a) the Licensor is notified in writing within ninety (90) days of such assignment,
(b) the assignee agrees to be bound by the terms and conditions contained in this EULA and
(c ) upon such assignment the assignee makes no further use of the Software licensed under this EULA.

The Licensor may assign its rights and obligation under this EULA without the consent of the Licensee. Any permitted assignee shall be bound by the terms and conditions of this Agreement.

18. Export Restrictions

The export of the Software from the country of original Purchase may be subject to control or restriction by applicable local law. The Licensee is responsible for determining the existence and application of any such law to any proposed export and for obtaining any needed authorization. The Licensee agrees not to export the Software from any country in violation of applicable legal restrictions on such export. The Licensee shall indemnify the Licensor on first demand against all financial disadvantages resulting from the violation of these export regulations.

19. Governing Law and Exclusions

19.1 Governing Law and Venue

(1) This EULA and all disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) shall be governed by the laws of the Federal Republic of Germany.

(2) The place of jurisdiction for all disputes arising from this contractual relationship in the event that both parties are merchants is Frankfurt am Main, Germany.

(3) kyona is generally prepared to participate in a dispute resolution procedure in accordance with § 36 VSBG before a consumer arbitration board. The competent consumer arbitration board for legal disputes arising from the service relationship is the Außergerichtliche Streitbeilegungsstelle für Verbraucher und Unternehmer e. V., Gohliser Str. 6, 04105 Leipzig, Internet: www.streitbeilegungsstelle.org

(4) Consumers have the option of using the European Commission’s online dispute resolution platform for the settlement of disputes, Internet: https://ec.europa.eu/consumers/odr. The kyona e-mail address is: [email protected]

19.2 Exception from Jurisdiction.

Notwithstanding the foregoing, the parties reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction (e.g. local courts at the Licensee’s place of residence) prior to, during, or after commencement or prosecution of any other court or arbitration proceedings or the final decision and award of the arbitrators.

19.3 Exclusion of UN Convention

The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.

19.4 Collision with General Terms and Conditions (GTC)

The provisions of this EULA are generally the more specific provisions that take precedence over the provisions of kyona GmbH.

In the event of a conflict between this EULA and the General Terms and Conditions of kyona GmbH, the EULA shall take precedence.

20. Entire Agreement

20.1 Entire agreement between the Licensee and the Licensor

This EULA (and any addendum or amendment to this EULA which is included with the Software) is the entire agreement between the Licensee and the Licensor relating to the Software and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA.

20.2 Other representations

Each party acknowledges that, in entering into this EULA (and the documents referred to in it), neither relies on any statement, representation, assurance or warranty (“Representation”) of any person (whether a party to this EULA or not) other than as expressly set out in this EULA or those documents.

20.3 Liability for fraud

Nothing in this clause shall limit or exclude any liability for fraud.

21. Notices

All notifications to the licensor must be sent to the respective registered office of the company. This registered office is subject to change. The current registered office is: kyona GmbH, Mergenthalerallee 73-75, 65670 Eschborn, Germany. A change of the registered office is possible.   

E-mail: [email protected] 

All communications to the Licensee will be sent to the physical address or email address provided by the Licensee when purchasing the Software.

Notice shall be deemed received and properly served twenty-four (24) hours after the sending of an electronic notice (including e-mail) or three (3) days after the date of mailing of a letter. To prove delivery of a notice, it shall be sufficient to prove, in the case of a letter, that such letter was properly addressed, postmarked and placed in the mail and, in the case of an electronic communication, that such email was sent to the recipient’s designated email address.

22. Waiver

22.1 Performance obligations of the Licensee

If the Licensor fails, at any time during the term of this EULA, to insist upon the strict performance of any of the Licensee’s obligations under this EULA, or if the Licensor fails to exercise any of the rights or remedies to which it is entitled under this EULA, this EULA shall not constitute a waiver of such rights or remedies and shall not relieve the Licensee from compliance with such obligations.

22.2 Subsequent default

A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.

22.3 Written waiver

No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Licensee in writing.

23. Severability

If any provision of the EULA (or part of a provision) is or becomes invalid or unenforceable in whole or in part by a court or administrative authority of competent jurisdiction, the validity of the remaining provisions shall not be affected.

24. No Partnership

Nothing in the EULA is intended to, or shall be deemed to, establish any agency, partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.

25. Rules of Interpretation

In this EULA, the following rules apply:

(a) “A person” means a natural person, a legal person or an unincorporated body (whether or not it has legal personality).

(b) a reference to a party includes its personal representatives, successors or authorised representatives;

( c) The headings in this EULA are inserted for convenience only and have no bearing on its construction.

(d) a reference to a particular Act is a reference to that Act as it is for the time being in force having regard to any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force under that Act;

(e) a reference to one gender includes a reference to the other gender;

(f) any phrase introduced by the terms, including, in particular, or any similar expression, shall be construed as illustrative and shall not limit the meaning of the words preceding those terms; and

(g) a reference to “written form” or “in writing” includes faxes, e-mails, communication via websites and comparable means of communication.

26. Survival

Clauses 1, 2, 3, 4, 4.1, 5.1, 5.2, 5.4, 6, 9, 10, 11, 12, 18, 19, 20 and 24 shall continue to apply after termination of this EULA.