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BIZAGI CLOUD SUBSCRIPTION AGREEMENT
This CLOUD SUBSCRIPTION AGREEMENT (the “Agreement”) IS A BINDING CONTRACT between BIZAGI GROUP LTD. (“Bizagi” or “We”) and You, and if applicable, between Bizagi and the company or other legal entity that you represent. Bizagi and You are also referred to individually as a “party” and collectively as the “parties”. If You are entering into this Agreement on behalf of a business organization or entity, You represent and warranty that you are duly authorized to bind that entity to this Agreement.
This Agreement governs all of your use of our internet-delivered work collaboration service (the “Online Service”), whether You access it from our Web site at http://cloud.bizagi.com (the “Site”), from our mobile applications and mobile Web sites, or from any other application or access point we make available to You. THIS AGREEMENT GOVERNS ALL USE YOU MAKE OF THE ONLINE SERVICE, INCLUDING YOUR FREE OR PAID USE (IF ANY).
If You do not agree to the terms of this agreement, do not install or use the software, associated documentation, service or any portion thereof and do not request or accept support services from Bizagi.
  1. DEFINITIONS: In this Agreement unless the context otherwise requires the following expressions shall have the following meanings:
    1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
    2. "Control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
    3. “Agreement” means this Cloud Subscription Agreement.
    4. “Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via http://www.bizagi.com/en/resources/help or login to the applicable Service.
    5. “Purchase Order” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into a Purchase Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
    6. "Purchased Services" means Online Services that You or any of Your Affiliates purchase under an Purchase Order, also referred as “Paid Subscription”, as distinguished from those provided pursuant to a Free Trial (see Section 2).
    7. “User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
    8. "We", "Us" or "Our" means BIZAGI GROUP LTD and/or its affiliates.
    9. "You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
    10. “Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services.
  2. FREE TRIAL: If You register on our Site for a Free Trial, Bizagi may make Our Online Service available to You on a trial basis free of charge for a maximum of thirty (30) calendar days from the start date. If at the conclusion of the Free Trial you choose not to purchase a subscription to the Online Service, your plan will be downgraded to “Personal” as defined in Section 3.2. If the “Personal” free storage level has been exceeded, all of the Models will still be available to You from both Bizagi Cloud Website and Bizagi Modeler app. Nonetheless, Bizagi will leave your Models in read only mode and You will not be able to add Models, Diagrams, Attachments or make comments until the amount of available space drops to less than the free storage level.
    Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Notwithstanding Section 10 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), during the Free Trial the services are provided “as-is” without any warranty.
  3. SUBSCRIPTION TERMS AND RESTRICTIONS
    1. PERMITTED USE: Among other features, the Online Service allows users to create online process models (“Models”) within the Subscription Service where You and (if applicable) Your Users (as defined in Section 3.3) can (a) upload, download, organize, modify, comment and store file attachments and (b) share those Models with other users. Subject to the terms and conditions of this Agreement and the usage limitations established by the Service, we hereby grant you a worldwide, non-exclusive, non-transferable right to access and use the Service during the term of this Agreement to (i) create, submit content to, edit and delete Models, (ii) invite other users to view, comment to, and/or edit Models, and (iii) otherwise use the Models and other features and functionality of the Service for your personal use (or, if you are a company, your internal business purposes).
    2. PERSONAL PLAN: If you maintain a “Personal” subscription plan, the Online Service allows a single user to store an unlimited number of Models provided the free storage space level is not exceeded. The free storage space level is published in our website www.bizagi.com and may vary from time to time. Personal Plan is free of charge and does not grant any sharing options.
    3. WORKGROUP PLAN: If you maintain a “Workgroup” subscription plan, the Online Service will allow you to invite Editors or Contributors users (“Your Users”). You must pay for and have a current subscription for You and each member of your Workgroup. Each invitation (i.e., email address) may be used only by a single individual. You are responsible for all use and misuse of the Online Service that occurs under your and Your Users’ login credentials, and You agree to notify Us of any unauthorized access or use of which you become aware. “Editors” have the ability to (1) open a shared Model with Bizagi Modeler to change process flow; (2) open a shared Model with Bizagi Modeler to include or change its documentation; and (3) include comments on any Model, diagram or shape via Modeler app or a browser. “Contributors” are invited to share a Model by its Owner and are able to login to Bizagi Cloud via a browser in any device to (1) view the process flow and its documentations, and (2) include comments on any Model, diagram or shape using a browser. Contributors have no access to editing process flow or documentation.
    4. GENERAL RESTRICTIONS: Customer may not: (i) modify, reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Online Service, (ii) copy, or reproduce the Online Service in any way, in whole or in part, (iii) create any derivative work based on the Service, (iv) re-distribute or sublicense the Service, or any part thereof, to any third party, (v) "frame" or "mirror" any content available on the Online Service on any other server or wireless Internet-based device, (vi) operate the Online Service on a service bureau basis, without Our express prior written consent, (vii) use the Online Service in circumstances in which errors or inaccuracies in the content, functionality, data or information provided by the Service or the failure of the Service could lead to death, personal injury, or severe physical or environmental damage, or (viii) allow, permit or assist any third party to do the foregoing. If you are located in a jurisdiction that permits limited reverse engineering as a matter of law, and despite accepting contract terms to the contrary, You may perform limited reverse engineering in connection with your authorized use of the Service, provided You first notify Us of Your intent to reverse engineer the Service, and provided the reverse engineering is limited to the extent permitted by the applicable law. Our warranty and indemnification obligations under this Agreement shall not apply to any issues or claims to the extent resulting from Your reverse engineering the Service in accordance with this provision.
    5. OWNERSHIP: The Service is licensed to you, not sold. Except as expressly set forth herein, We retain all rights in the Service, and all intellectual property rights therein. All rights in the Service not provided to You under this Agreement are expressly retained by Us. The Bizagi name and logo, the Bizagi Enterprise name and logo, the Bizagi Cloud name and logo, and other product names associated with the Online Service are trademarks of Bizagi or Bizagi's licensors and no right or license is granted to use them, other than as set forth herein.
    6. PROBING: Customer shall not allow anyone working on your behalf to perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan of the Service without Our prior written consent. You shall not allow anyone working on your behalf to use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Robots") in conjunction with the Service.
    7. NO COMPETITIVE USE: You may not register for or use our Online Service to monitor or test its performance or for other benchmarking or competitive purposes.
    8. YOUR CONTENT; REPRESENTATION: As between You and Us, You retain all right, title and interest in any and all data, files, attachments, text, images, personally identifiable information, and other content that You and Your Users upload or submit to your Models (collectively, “Your Content”). Your Content includes data and content submitted to your Models by Editors. You represent and warrant that You have all rights, permissions and consents necessary (a) to submit Your Content to Bizagi, and (b) to grant Bizagi the limited rights to use Your Content set forth in this Agreement; (c) for any transfer of Your Content or your Models from one User to another.
    9. CONTENT SUBMITTED BY EDITORS AND YOUR USERS: If you are an Editor, you acknowledge that any content you submit to a Model may be retained indefinitely, distributed, displayed, published, modified, and used for any purpose by that Model’s Owner, notwithstanding any other provision of this Agreement. We have no responsibility to enforce any confidentiality obligation the Owner may have to you. If you are an Editor who submits content to a Model, the Owner of that Model may publish or distribute Your Content to a third party, revoke your permission to access a Model and Your Content within it, or transfer all rights in the Model to a third party.
    10. LICENSE: The Service is designed to facilitate collaboration and sharing of content among Users. In support of that core function, and subject to the settings selected by Your Users for Models where Your Content is stored, you hereby grant Bizagi a limited license to use Your Content to provide the Online Service and its features to You during the term of this Agreement. The Service includes features that permit Owners to “invite” Editors to view, modify and collaborate. Bizagi has no liability for any distribution, publication, display, use or disclosure of Your Content by other users of the Service to whom you provide or submit Your Content.
    11. CONFIDENTIALITY OF YOUR CONTENT: Bizagi will not disclose or distribute Your Content to any third party. Notwithstanding any separate nondisclosure agreement that may have been executed between You and Bizagi, Bizagi may: (a) distribute and disclose Your Content to other users of the Online Service as described in Section 3.2, (b) allow Your Content to be stored and processed by Bizagi’s service providers (e.g., hosting and storage providers) who act on Bizagi’s behalf in providing the Online Service, as long as such service providers are not authorized to have unencrypted access to Your Content and are bound to protect Your Content by reasonable contractual confidentiality obligations, and (c) disclose Your Content to the extent required by law.
    12. USER NAMES AND PASSWORDS: You may not disclose your passwords other than to Your Users. In addition, your passwords may not be used by more than the number of Users corresponding to the number of licenses that you have purchased to the Online Service. You are responsible for maintaining the confidentiality of your account and password information, and for restricting access to your computers. In the event of a breach of security, you agree to immediately change your passwords and to promptly notify Bizagi of such breach in writing. Bizagi has no obligation to inquire as to the authority or propriety of any use of or action taken under one or more of your passwords and will not be responsible for any loss to you arising from any such use.
  4. YOUR RESPONSIBILITIES: You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of your Content and the means by which you acquired it, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations.
    1. EQUIPMENT AND SOFTWARE: You must provide at its own expense Internet access, compatible software and compatible equipment to access and use the Online Service. You must meet the system requirements that Bizagi disclose to you.
    2. ACCOUNTS AND COOPERATION: You are responsible for all activity occurring under its accounts and shall abide by all applicable local, state, national, and foreign laws, treaties and regulations including those related to data privacy, international communications and the transmission of technical or personal data in connection with its use of the Online Service. We may request information and data from you in connection with our providing the Online Service, and you agree to cooperate with our reasonable requests in good faith.
    3. NOTICE OF UNAUTHORIZED USE: You must report to Us immediately, and use reasonable efforts to stop immediately, any copying or distribution of the Service in violation of this Agreement that You are aware of or suspect.
  5. AVAILABILITY OF THE SERVICE: Your access to and use of the Online Service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Online Service for any reason, including as a result of power outages, system failures, problems inherent in the use of the Internet and electronic communications, failures of Bizagi's service providers (including telecommunications, hosting, and power providers) or other interruptions. Bizagi is entitled, without any liability to you, to suspend access to any portion or all of the Online Service at any time, on a Service-wide basis: (a) for scheduled downtime to permit Bizagi to conduct maintenance or make modifications to the Online Service; (b) in the event of a denial of service attack or other attack on the Online Service or other event that We determine, in Our sole discretion, may create a risk to the Online Service, to You or to any of Our other customers if the Online Service were not suspended; or (c) in the event that Bizagi determine that the Online Service is prohibited by law or Bizagi otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Bizagi has no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.
  6. PROVISION OF PURCHASED SERVICES: During the term of your paid subscription to the Online Service Bizagi will (a) make the Services available to You pursuant to this Agreement and the applicable Purchase Order, (b) provide our standard support for the Purchased Services to You at no additional charge, (collectively referred to as the "Support") and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except as specified in the above paragraph. Bizagi does not provide Support during the Free Trial.
    1. UPDATES: Bizagi may install on the Online Service the upgrades, patches and service packs (collectively referred to as "Updates") which become available from time-to-time. Bizagi makes no guarantee that an Update will be installed during the term of this Agreement. The Updates shall be considered part of the Online Service and governed by this Agreement.
    2. TECHNICAL SUPPORT: Bizagi shall provide Technical Support to allow Your designated Maintenance Services contacts to report problems and to seek assistance in the use of the Service during Bizagi's support hours of operations as established from time-to-time. Problems may be reported through Bizagi's online technical support. Bizagi shall return support requests within a commercially reasonable time after receiving Your request. Technical Support does not include on-site or in-person assistance or consultation.
  7. SUBSCRIPTION RENEWALS AND CANCELLATIONS
    1. SUBSCRIPTIONS: If you maintain a paid subscription to the Online Service, Your subscription period is established when you purchase your subscription. Unless You notify Us before the end of Your subscription term, Your subscription will automatically renew for successive subscription periods of the same length. Unless We otherwise agree in writing, We charge Service Fees in advance at the beginning of each subscription period. You may view Your current subscription plan and billing information at any time in Your account administration settings.
    2. RENEWAL AND CANCELLATION: Once a subscription period (initial or renewal) commences, all Service Fees paid for that period are non-refundable. You may cancel your subscription at any time before the end of the then-current subscription period using the cancellation procedure available through the account administration area of the Online Service, in which case Your subscription will not renew and we will not charge You any further Service Fees. When you cancel your subscription, Your paid subscription will terminate and You will be downgraded to “Personal” plan. If the “Personal” free storage level has been exceeded, all of the Models will still be available to You from both Bizagi Cloud Website and Bizagi Modeler app. Nonetheless, Bizagi will leave your Models in read only mode and You will not be able to add Models, Diagrams, Attachments or make comments until the amount of available space drops to less than the free storage level.
  8. FEES AND PAYMENTS
    1. SERVICE FEES: You agree to pay the fees in effect for Your subscription at the time You purchase or renew it, along with any fees for additional services You agree to pay while using the Online Service (collectively, “Service Fees”). Current pricing for subscription plans is available on the Site. Unless we separately agree otherwise in writing, all Service Fees for subscriptions are payable in advance prior to the commencement of each subscription period. Other Service Fees become due and payable as described on our Site or in this Agreement.
    2. BILLING INFORMATION: When You subscribe for a paid service subscription, You will provide Us with either a valid, up-to-date credit card number or the other payment information We request. If You have selected a credit card or Paypal as your payment method, You authorize us to charge your credit card (or Paypal account, as applicable) for Service Fees on the first day of your initial subscription period and each renewal subscription period, to charge Your credit card when such fees become due and payable. You are responsible for maintaining up-to-date payment information on our Site. If We cannot charge Your credit card for any Service Fees when due because Your payment information is no longer valid and up-to-date, or if We do not receive Your payment when due through the alternative payment method You have selected, We may, at Our election: (a) suspend Your access to the Online Service, in which case You will be responsible for all Service Fees incurred during the period of suspension; (b) immediately terminate this Agreement, in which case Your right to use the Online Service will cease; or (c) without waiving our rights to suspend or terminate Your account, allow You a longer period during which to make payment, in which case you will remain responsible for all Service Fees incurred while we await your payment. Late payments incur interest charges at the rate of 1% per month on any outstanding balance or the maximum amount permitted by applicable law, whichever is less. The Service Fees shown on Our Site do not include any local, state or federal taxes or duties. Except for Our income taxes and gross receipts taxes, You acknowledge that You are responsible to pay such taxes (if any). If We collect sales tax or other taxes from you, We will identify the portion of Your payment attributable to such taxes.
  9. TERM AND TERMINATION SUBSCRIPTION RENEWALS AND CANCELATIONS
    1. TERM: This Agreement begins when You first create a login for the Online Service and accept this Agreement and continues until all subscriptions hereunder have expired or have been terminated.
    2. TERMINATION BY YOU: You may terminate this Agreement or reduce the number of licenses, anytime, online. You can also notifying Us in writing at least five (5) business days prior to the date of the invoice for the following term. We will not be obligated to refund any Service Fees to you when you terminate. In the case of Free Trials, the trial license shall expire automatically at the end of the trial period, without further notice.
    3. TERMINATION BY US FOR CAUSE: We may terminate this Agreement and Your access to the Online Service immediately, without any obligation to notify You or refund any Service Fees, if you are in breach of this Agreement, You misappropriate or infringe any of our intellectual property or proprietary rights, or you fail to make any payment when due.
    4. PAYMENT OF FEES UPON TERMINATION: In no event will termination relieve You of Your obligation to pay any fees payable to Bizagi for the period prior to the effective date of termination.
    5. TREATMENT OF YOUR CONTENT AT TERMINATION: After termination or expiration of this Agreement, We will not take any action to intentionally erase Your Content stored on the Online Service for a period of thirty (30) calendar days after the date of termination. The above conditioned on Your payment of all amounts then due hereunder, and Your compliance with terms and conditions We may establish with respect to such content retrieval. For the period of thirty (30) calendar days after the date of termination all Your Models will be available to be downloaded to a local model through the Modeler application using Save As option. After this time period, We will have no obligation to maintain Your Content and may delete it, from the Online Service at any time.
  10. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
    1. REPRESENTATIONS: Each party represents that it has validly entered into this Agreement and has the legal power to do so.
    2. WARRANTIES MADE BY YOU: you represent and warrant that you will not use the Service:
      • in a manner that infringes, violates or misappropriates any rights of Bizagi or any third party.
      • to engage in, promote or facilitate illegal activities such as, but not limited to: (A) gambling, (B) child pornography, (C) libelous, defamatory or otherwise malicious or harmful activities, (D) activities that are discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age, or (E) activities which constitute or facilitate the illegal export of any controlled or otherwise restricted items, including without limitation, software, algorithms, or other data that is subject to export laws;
      • to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any deceptive practices such as posing as another service for the purposes of phishing or pharming, altering or obscuring any mail headers, creating forged or non-standard protocol headers, such as altering source addresses, etc., assuming the identify of any user of the Service without that user's permission, or any activities that violate anti-spamming laws and regulations.
    3. WARRANTIES MADE BY YOU IN CONNECTION WITH YOUR CONTENT: In connection with Your Content, you represent and warrant:
      • that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Content on the Online Service;
      • that Your Content does not: (A) violate, misappropriate or infringe any rights of Bizagi or any third party, (B) constitute defamation, invasion of privacy or publicity, or otherwise violate any rights of any third party, or (C) that Your Content does not contain malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
    4. WARRANTIES MADE BY BIZAGI: Bizagi warrants that it has the legal power and authority to enter into this Agreement. Bizagi further warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the then current documentation provided by Bizagi in connection with the Service under normal use and circumstances. Your exclusive remedy and Bizagi's sole and exclusive liability for a breach of this warranty shall be for Bizagi to re-perform any non-conforming Service brought to its attention within thirty (30) calendar days after the non-conforming Service is performed.
    5. DISCLAIMER: EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, BIZAGI MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. BIZAGI DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE ONLINE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE ONLINE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, BIZAGI DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. BIZAGI IS NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM BIZAGI BY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  11. LIMITATION OF LIABILITY: NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
    1. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES: IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
  12. CONFIDENTIALITY
    1. CONFIDENTIAL INFORMATION: As used in this Agreement, the term "Confidential Information" means any information (i) disclosed in writing by Bizagi to You and marked confidential, (ii) disclosed orally by Bizagi to You, identified as Confidential Information at such time, summarized in writing by Bizagi to You and marked confidential within thirty (30) calendar days of such oral disclosure, (iii) the Online Service and any associated training materials that we may provide to You, (iv) the terms of this Agreement (including, but not limited to the prices and payment terms), except as may be necessary to enforce the terms hereof, and (v) information and documentation that should be reasonably understood to be confidential under the circumstances of disclosure or the nature of the information disclosed. Confidential Information shall remain the sole property of Bizagi and its licensors.
    2. NON-DISCLOSURE: You agree that you will not use the Confidential Information except as expressly set forth herein or otherwise authorized by Bizagi in writing. You agree that you may not disclose the Confidential Information to any persons or organizations except as may be necessary and required in connection with your authorized use of the Service, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, You must use the same procedures and degree of care to avoid disclosure or unauthorized use of the Confidential Information as You use to protect Your own similar data and information, but in no event shall You use less than a reasonable degree of care.
    3. EXCEPTIONS: The foregoing restrictions will not apply to information that (i) is known to You at the time of communication from Bizagi, (ii) has become publicly known through no wrongful act of You, (iii) has been rightfully received by You from a third party authorized to make such communication without restriction, (iv) has been independently developed by You as evidenced by Your written records, (v) has been approved for release by Bizagi's, express written authorization, or (vi) is required to be disclosed pursuant to a subpoena or other validly issued administrative or judicial process, provided that You must give Bizagi sufficient notice of such disclosure to allow Bizagi and/or the applicable licensor a reasonable opportunity to object to and take necessary legal action to prevent such disclosure.
  13. INDEMNIFICATION
    1. INDEMNIFICATION BY BIZAGI: Bizagi will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Online Service as permitted hereunder, brought by a third party alleging that the Online Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). Bizagi shall, at its expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Bizagi for such defense, provided that (a) You promptly notify Bizagi of the threat or notice of such IP Claim; (b) Bizagi will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Bizagi in connection therewith. The provisions of this Section state the sole, exclusive and entire liability of Bizagi to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Online Service by You.
    2. INDEMNIFICATION BY YOU: You will defend Bizagi against any claim, demand, suit or proceeding made or brought against Bizagi by a third party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Bizagi”), and will indemnify Bizagi from any damages, attorney fees and costs finally awarded against Bizagi as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against Bizagi, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Bizagi (except that you may not settle any Claim Against Us unless it unconditionally releases Bizagi of all liability), and (c) give You all reasonable assistance, at Your expense.
    3. LIMITATION: Notwithstanding the provisions of Section 13.1, Bizagi assumes no liability for (I) infringements arising from combinations of the Service with non-Bizagi software or hardware products, (II) modifications to the Online Service made by any party other than Bizagi or Bizagi's authorized representatives, or (III) trademark infringements involving any marking or branding not applied by Bizagi.
  14. GENERAL PROVISIONS:
    1. GOVERNING LAW: Without regard to choice or conflicts of law rules, this Agreement is governed by the laws of the State of Delaware, if you are located in the United States. If you are located in any other country, then the validity and performance of this Agreement shall be governed by the laws of England.
    2. JURISDICTION: In accordance with the above, the parties to this Agreement irrevocably submit to the exclusive jurisdiction of the Courts of the State of Delaware/ the English Courts as applicable, to settle any dispute which may arise under or in connection whit this Agreement or its subject matter or formation (including non-contractual disputes or claims).
    3. SURVIVAL: Provisions herein which by their nature extend beyond the termination of any license of the Service shall remain in effect until fulfilled.
    4. RELATIONSHIP: No joint venture, partnership, employment, or agency relationship exists between you and Bizagi as a result of this Agreement or Your use of the Service.
    5. AMENDMENT: This Agreement may only be modified by a written agreement signed by duly authorized representatives of you and Bizagi.
    6. SEVERABILITY: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    7. WAIVER: Bizagi's failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Bizagi in writing.
    8. ASSIGNMENT: This Agreement may not be assigned by You without Bizagi's prior written approval but may be assigned without Your consent by Bizagi to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
 

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