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Bizagi Cloud Subscription Agreement

Bizagi Cloud Subscription Agreement

This Bizagi Cloud Subscription Agreement (the “Agreement”) is a binding contract between Bizagi Group Ltd. and its Affiliates, as determined in accordance with Section 15.1 (“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 warrant that you are duly authorized to bind that entity to this Agreement. 
This Agreement governs your use, whether offered as a free trial or Paid Service, of our Modeler Services and / or Studio Collaboration Services that are accessed via the internet (the “Cloud Services”). If You do not agree to the terms of this Agreement, do not install, use, or otherwise access the Cloud Services, associated documentation, 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 terms below 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. “Documentation” means Bizagi’s online user guides, documentation, and help and training materials, as updated from time to time, accessible via http://www.bizagi.com/en/resources/helpor by logging to the applicable Cloud Service.
    4. “Purchased Services" means Cloud Services that You or any of Your Affiliates purchase from Bizagi, also referred to as a “Paid Subscription”, as distinguished from those provided pursuant to a Free Trial (see Section 2).
    5. “User” means an individual who is authorized by You to use the Cloud Services 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.
    6. “Your Data” means electronic data and information submitted by or for You to the Cloud Service or collected and processed by or for You using the Cloud Services.
    7. “Site” means the Modeler Services Web Application where you have access to applicable options and functionalities depending on the plan to which you are subscribed.
  2. FREE TRIAL: If You register for a Free Trial, Bizagi may make the Cloud Service available to You on a trial basis free of charge for a maximum of thirty (30) calendar days from the start date.
    1. MODELER SERVICES WORKGROUP FREE TRIAL: If upon conclusion of the Free Trial for Modeler Services Workgroup you choose not to purchase a subscription to the Cloud Services, your plan will be downgraded to “Personal” as defined in Section 3.2. If the “Personal” free storage level has been exceeded, all Models will still be available to You from both the Bizagi Cloud Website and the Bizagi Modeler application. In such case, Bizagi will leave your Models in read only mode and You will not be able to add any Models, Diagrams, Attachments or make comments until the amount of available space drops to or below the free storage level.
    2. STUDIO COLLABORATION SERVICES FREE TRIAL: If upon conclusion of the Free Trial for Studio Collaboration Services you choose not to purchase a subscription to the Cloud Services, You will not be able to run any project in the development environment as defined in Section 3.4. In such case all of the projects and their definition (metadata) will still be available to You from the Bizagi Studio application indefinitely. 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 11 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), during any Free Trial the Cloud Services are provided “as-is” and without warranty of any kind.
  3. SUBSCRIPTION TERMS AND RESTRICTIONS
    1. MODELER SERVICES
      1. PERMITTED USE: Among other features, the Cloud Services allows users to create online process models (“Models”) within the Cloud Services where You and (if applicable) Your Users (as defined in Section 3.1.3)will be able to (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 Cloud Services, we hereby grant you a worldwide, non-exclusive, non-transferable right to access and use the Cloud Services 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 Cloud Service for your personal use (or, if you are a company, your internal business purposes).
      2. MODELER SERVICES PERSONAL PLAN: If you maintain a “Personal” subscription plan, the Cloud Services 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 at our website www.bizagi.comand may vary from time to time in Bizagi’s sole and absolute discretion. The Personal Plan is free of charge and does not grant any sharing options.
      3. MODELER SERVICES WORKGROUP PLAN: If you maintain a “Workgroup” subscription plan, the Cloud Services will allow you to invite Users (“Your Users”)to access and use the Cloud Services up to the total number of Users that you purchase as part of your subscription. Each invitation (i.e., email address) may be used only by a single individual. You are responsible for all use and misuse of the Cloud Services that occurs under Your and Your Users’ login credentials, and You agree to notify Us immediately of any unauthorized access or use of which you become aware. The User’s permission levels are(a)“Editors” have the ability to (i) open a shared Model with Bizagi Modeler to change process flow; (ii) open a shared Model with Bizagi Modeler to include or change its documentation; and (iii) include comments on any Model, diagram or shape via Modeler app or a browser. (b)“Contributors” have the ability to login to Bizagi Cloud via a browser from any device to (i)view the process flow and its documentations, and (ii) include comments on any Model, diagram or shape using a browser. Contributors have no access to edit process flow or documentation.
    2. STUDIO COLLABORATION SERVICES FREE TRIAL
      1. STUDIO COLLABORATION SERVICES PERMITTED USE: The Cloud Services Free Trial for Studio Collaboration Services allows up to five (5) Users to create one online project (“Project”) within the Cloud Services where You and (if applicable) Your Users can (a) build automated processes (b) run one work portal on the cloud development environment (c) share theproject with other users. Subject to the terms and conditions of this Agreement and the usage limitations established by the Cloud Services, we hereby grant you a worldwide, non-exclusive, non-transferable, terminable right to access and use the Cloud Services during the term of this Agreement to (i) upload a project, which become part of the subscription, (ii) open a share Project with Bizagi Studio, (iii) to automate processes shared with them and (iv) invite other Users to the Cloud Services. Each invitation (i.e., email address) may be used only by a single individual. You are responsible for all use and misuse of the Cloud Services that occurs under Your and Your Users’ login credentials, and You agree to notify Us immediately of any unauthorized access or use of which you become aware.
      2. DEVELOPMENT ENVIRONMENT: Means (a) the cloud environment in which the project created on Bizagi Studio can be uploaded and (b) the cloud environment where a project can be executed. Only one project can be executed per environment.
    3. GENERAL RESTRICTIONS: You may not: (i) modify, reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Cloud Services, (ii) copy, or reproduce the Cloud Services in any way, in whole or in part, (iii) create any derivative work based on the Cloud Services, (iv) re-distribute or sublicense the Cloud Services, or any part thereof, to any third party, (v) "frame" or "mirror" any content available on the Cloud Services on any other server or wireless Internet-based device, (vi) operate the Cloud Services on a service bureau basis, without Our express prior written consent, (vii) use the Cloud Services in circumstances in which errors or inaccuracies in the content, functionality, data or information provided by the Cloud Services or the failure of the Cloud Services 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 Cloud Services, provided You first notify Us of Your intent to reverse engineer the Cloud Services, 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 Cloud Services in accordance with this provision.
    4. OWNERSHIP: The Cloud Services is licensed, not sold. Except as expressly set forth herein, We retain any and all rights in the Cloud Services, including all intellectual property rights therein. The Bizagi name and logo, the Bizagi Cloud name and logo, and other product names associated with the Cloud Services are trademarks of Bizagi or Bizagi's licensors and no right or license is granted to use them, other than as set forth herein.
    5. PROBING: You shall not, either directly or through anyone working on your behalf, (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan of the Cloud Services without Our prior written consent; (ii)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 Cloud Services.
    6. NO COMPETITIVE USE: You may not register for or use the Cloud Services to monitor or test its performance or for other benchmarking or competitive purposes.
    7. YOUR CONTENT; REPRESENTATION: 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 or Projects (collectively, “Your Content”). Your Content includes data and content submitted to your Models or Projects by Your Users. 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 or Projects from one User to another.
    8. CONTENT SUBMITTED BY YOUR USERS: You acknowledge that any content You submit to a Model or Project may be retained indefinitely, distributed, displayed, published, modified, and used for any purpose by that Model’s or Project’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 a User who submits content to a Model or Project, the Owner of that Model or Project may publish or distribute Your Content to a third party, revoke your permission to access a Model or Project and Your Content within it, or transfer all rights in the Model or Project to a third party.
    9. LICENSE: The Cloud Services 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 or Projects where Your Content is stored, You hereby grant Bizagi, during the term of the subscription, a limited, free-of charge, worldwide, terminable license to use Your Content to provide the Cloud Services and its features. The Cloud Services includes features that permit Owners to “invite” Your Users 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 Cloud Services to whom You provide or submit Your Content.
    10. CONFIDENTIALITY OF YOUR CONTENT: Subject to the remainder of this Section 3.10, Bizagi will not knowingly 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 Cloud Services 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 Cloud Services, 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.
    11. 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 Users that you have purchased or acquired (i.e. as part of a trial) included in the trail of the Cloud Services. 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 Cloud Services, and notify Us promptly of any such unauthorized access or use, and (d) use the Cloud Services only in accordance with the Documentation and applicable laws and government regulations.
    1. EQUIPMENT AND SOFTWARE: You must provide at Your own expense Internet access, compatible software and compatible equipment to access and use the Cloud Services. You must meet the system requirements that Bizagi specifies.
    2. ACCOUNTS AND COOPERATION: You are responsible for all activity occurring under Your 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 Your use of the Cloud Services. We may request information and data from You in connection with Our provision of the Cloud Services, 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 actual or suspected copying or distribution of the Cloud Services in violation of this Agreement.
  5. AVAILABILITY OF THE SERVICE: Your access to and use of the Cloud Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Cloud Services 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 Cloud Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit Bizagi to conduct maintenance or make modifications to the Cloud Services; (b) in the event of a denial of service attack or other attack on the Cloud Services or other event that We determine, in Our sole discretion, may create a risk to the Cloud Services, to You or to any of Our other customers if the Cloud Services were not suspended; or (c) in the event that Bizagi determines that the Cloud Services is prohibited by law or Bizagi otherwise determines 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 suffer as a result of any Service Suspension.
  6. PROVISION OF PURCHASED SERVICES: During the term of your Paid Subscription to the Cloud Services Bizagi will (a) make the Purchased Services available to You pursuant to this Agreement, and (b) provide our standard support for the Purchased Services to You at no additional charge as described in this Section 6 (collectively referred to as the "Support" ).
    1. UPDATES: Bizagi may install on the Cloud Services the upgrades, patches and service packs (collectively referred to as "Updates" ) which become available from time-to-time. However, Bizagi makes no guarantee that any Update will be installed during the term of this Agreement. The Updates shall be considered part of the Cloud Services 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. PROVISION OF FREE TRIAL: During the term of your free trial for the Cloud Services Bizagi will (a) make the Services available to You pursuant to this Agreement, (b) use commercially reasonable efforts to make the free trial for Online Services available with no obligation to provide a Monthly Uptime Percentage. Bizagi does not provide Support during the Free Trial.
    1. UPDATES: Bizagi may install on the Cloud Services the upgrades, patches and service packs (collectively referred to as "Updates") which become available from time-to-time. Bizagi makes no guarantee that any Update will be installed during the term of the free trial. The Updates shall be considered part of the Cloud Services and governed by this Agreement.
  8. SUBSCRIPTION RENEWALS AND CANCELLATIONS
    1. SUBSCRIPTIONS: If you maintain a Paid Subscription to the Cloud Services, Your subscription period will start on the date of purchase of your subscription. Unless either Party notifies the other in writing, 30 days prior to the end of Your subscription term of its intention to not renew, Your subscription will automatically renew for a subsequent subscription term equal in length as the previous one. 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 Paid Subscription at any time prior to the end of the then-current subscription period using the cancellation procedure available through the account administration area of the Cloud Services, in which case Your Paid 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 a “Personal” plan.
  9. 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 Cloud Services (collectively, “Cloud Services Fees”). The current pricing for subscription plans is available on the Site and may be increased at any time in Bizagi’s sole discretion, provided the Cloud Services Fees that you must pay will always be those that are in effect at the time of Your purchase or renewal. Unless otherwise agreed 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 to a Paid Subscription, You shall provide either a valid, up-to-date credit card number or any other payment information requested on the Site. If We cannot charge Your payment method for any Service Fees on the due date, if 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, in our sole discretion choose to: (a) suspend Your access to the Cloud Services, 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 Cloud Services will cease; and / or (c) without waiving our rights to suspend or terminate Your account, allow You an additional period of time to make the payment, in which case you will remain responsible for all Service Fees incurred while the payment remains outstanding. Late payments will be subject to interest charges at the rate of 1% per month, or at the maximum rate permitted in accordance to the applicable law, whichever is lower on any outstanding balance. 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.
      1. MODELER SERVICES BILLING: If You have selected a credit card as your payment method, You authorize us to charge your credit card for Service Fees on the first day of your initial subscription period and each renewal subscription period. You are responsible for maintaining up-to-date payment information on Our Site.
  10. TERM AND TERMINATION SUBSCRIPTION RENEWALS AND CANCELATIONS
    1. TERM: This Agreement begins when You first create a login for the Cloud Services 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, at any time, online. You may also notify Us in writing at least thirty (30) business days prior to the expiry of the subscription term. For the avoidance of doubt, You shall not be entitled to any refund of the Service Fees in the event of termination under this clause. In the case of Free Trials, the trial license shall expire automatically at the end of the trial period, without further notice.
    3. TERMINATION FOR CAUSE: We may terminate this Agreement and Your access to the Cloud Services immediately, without any obligation to notify You, if You (i) are in breach of this Agreement; (ii) misappropriate or infringe any of Our intellectual property or proprietary rights; or (iii) fail to make any payment under the terms of this Agreement.
    4. PAYMENT OF FEES UPON TERMINATION: In no event will termination relieve You of Your obligation to pay any Service 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 make Your Content stored on the Cloud Services available to You for a period of fifteen (15) calendar days counted from the date of termination. The above is subject to the payment of any and all outstanding amounts then due, and Your compliance with any additional terms and conditions that We may establish with respect to such content retrieval. Depending on the type of the Cloud Services, you can download Your Content using the following options: (a) Modeler Services: For the period of fifteen (15) 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 period, We will have no obligation to maintain Your Content and may delete it, from the Cloud Services. (b) Studio Collaboration Services: The definition of your processes will be maintained indefinitely in the Cloud Services.
  11. 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 Cloud Services:
      1. in a manner that infringes, violates or misappropriates any rights of Bizagi or any third party.
      2. 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;
      3. 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:
      1. that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Content on the Cloud Services;
      2. that Your Content does not: (A) violate, misappropriate or infringe any Intellectual Property 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. With respect to Paid Services Only, Bizagi further warrants that it will provide the Cloud Services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Cloud Services will perform substantially in accordance with the then current documentation provided by Bizagi in connection with the Cloud Services 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 use commercially reasonable efforts to correct any deficiencies in the Cloud Services brought to its attention within thirty (30) calendar days after You have become aware of the deficiency.
    5. DISCLAIMER: EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL THE SERVICES ARE PROVIDED “AS-IS” AND BIZAGI MAKES NO REPRESENTATION, WARRANTY, REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, , ACCURACY OR COMPLETENESS OF THE CLOUD SERVICES. BIZAGI DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE CLOUD SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE AND THAT THE CLOUD SERVCES WILLOPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE CLOUD SERVICES 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 CLOUD SERVICES OR THE SERVER(S) THAT MAKE THE CLOUD SERVICESCLOUD SERVICES 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 SHALL NOT BE DEEMED 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 CLOUD SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  12. LIMITATION OF LIABILITY
    1. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES: IN NO EVENT WILL BIZAGI HAVE ANY LIABILITY TO YOU 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 BIZAGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
  13. 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 Cloud Services 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 Cloud Services, 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.
  14. INDEMNIFICATION
    1. INDEMNIFICATION BY BIZAGI: With respect to Paid Services only, Bizagi will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Cloud Services as permitted hereunder, brought by a third party alleging that the Cloud Services 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 Cloud Services 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 Cloud Services 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 14.1, Bizagi assumes no liability for (I) infringements arising from combinations of the Cloud Services with non-Bizagi software or hardware products, (II) modifications to the Cloud Services 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.
  15. GENERAL PROVISIONS:
    1. Contracting Legal Entity, Governing Law and Jurisdiction. The Bizagi contracting legal entity under this Agreement, the applicable currency, the address to which direct notices under this Agreement should be sent, what law will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such dispute or lawsuit, depend on where You are domiciled, as follows:
      If You are domiciled in: You are contracting with: Notices should be addressed to: The Governing Law is: The Courts having exclusive jurisdiction are:
      The United States of America, Canada, Mexico or a Country in the Caribbean. Bizagi Corp 3945 Freedom Circle, Suite 860 
Santa Clara, 95054 The Laws of the State of Delaware The Courts of the State of Delaware
      A Country in Europe, the Middle East, Africa, or a Country in Asia or the Pacific region Bizagi Limited Building 2, 2nd Floor, Chiltern Park, Chiltern Hill Chalfont St Peter SL9 9FG The Laws of England and Wales The Courts of England and Wales
      Spain and a Country in South or Central America. As applicable: Bizagi Iberica or Bizagi Latam As applicable: Calle Serrano, 25 planta 4º Drch 28001-Madrid, España or Carrera 7 No 71 - 52, Torre B,
Oficina 1302, Bogotá, Colombia The Laws of the State of Delaware The Courts of the State of Delaware
    2. SURVIVAL: Notwithstanding anything to the contrary contained herein, all terms of this Agreement relating to confidentiality, proprietary rights, indemnification, disclaimers of warranty and limitations of liability, as well as those terms that by their nature survive any expiration or termination of this Agreement shall survive any termination or expiration of this Agreement.
    3. 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.
    4. AMENDMENT: This Agreement may only be modified by a written agreement signed by duly authorized representatives of you and Bizagi.
    5. 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.
    6. 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.
    7. ASSIGNMENT: This Agreement may not be assigned by You without Bizagi's prior written approval but may be assigned 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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