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BIZAGI CLOUD TRIAL SUBSCRIPTION AGREEMENT
This CLOUD TRIAL 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 warrant that you are duly authorized to bind that entity to this Agreement. This Agreement governs your use of our free-trial internet-delivered work collaboration service (the “ Online Service”) whether You are working with Modeler Services or Studio Collaboration Services, accessed from the Web site (the “Site”)applicable from our mobile applications and mobile Web sites, or from any other application or access point we make available to You.
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.
  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. “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.
    4. “User” means an individual who is authorized by You to use a Service, 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.
    5. “We", "Us" or "Our" ” means BIZAGI GROUP LTD and/or its Affiliates.
    6. "You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
  2. FREE TRIAL: If You register on our Site or within the Product 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 (the “Free Trial Term”). During the Online Service Free Trial Term Bizagi will (a) make the Online 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 nor maintenance during the Free Trial Term.
    1. MODELER SERVICES WORKGROUP FREE TRIAL: If at the conclusion of the Free Trial Term You choose not to purchase a subscription to the Online Service, Your plan will be downgraded to “Personal” as defined in Section 3.1.2. If the “Personal” free storage level has been exceeded, all the Models will still be available to You from both Bizagi Cloud Website and Bizagi Modeler application. 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.
    2. STUDIO COLLABORATION SERVICES FREE TRIAL If at the conclusion of the Free Trial You choose not to purchase a subscription to the Online Service, You will not be able to run in cloud any project on the development environment as defined in Section 3.2.2 Nonetheless, all the projects and their definition (metadata) will still be available to You from the Bizagi Studio application indefinitely.
    3. Additional Free 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. During the Free Trial Term, the services are provided “as-is” without any warranty.
  3. FREE TRIAL TERMS AND RESTRICTIONS
    1. MODELER SERVICES
      1. PERMITTED USE: Among other features, the Online Service allows users to create online process models (“Models”)where You and (if applicable) Your Users 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 Online Service, we hereby grant you a non-exclusive, non-transferable, terminable right to access and use the Service during the Free Trial Term 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. MODELER SERVICES PERSONAL PLAN: If you maintain a “Personal” subscription plan, the Online Service allows a single user to store 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. The Personal plan is offered free of charge and does not grant any sharing options.
    2. STUDIO COLLABORATION SERVICES
      1. STUDIO COLLABORATION SERVICES PERMITTED USE: The Free Trial Online Service allows users to create online projects (“Projects”) where You and (if applicable) Your Users can (a) build automated processes(b) run a work portal on the cloud development environment (c) share those projects with other users. Subject to the terms and conditions of this Agreement and the usage limitations established by the Online Service, we hereby grant you a non-exclusive, non-transferable, terminable right to access and use the Service during the Free Trial Term to (i) upload Projects, which become part of the subscription, (ii) open shared Projects with Bizagi Studio,(iii) to automate processes and(iv) ) invite other users to the 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 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.
      2. DEVELOPMENT ENVIRONMENT: Means (a) the cloud environment in which the projects created on Bizagi Studio can be uploaded (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 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 Online Service,(iv) re-distribute or sublicense the Online 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 Online Service or the failure of the Online 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.
    4. OWNERSHIP:The Service is licensed, not sold. Except as expressly set forth herein, We retain any and all rights in the Online Service, including all intellectual property rights therein. The Bizagi 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 nor 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 Online Service 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 Online Service.
    6. 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.
    7. 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 as 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. You acknowledge that if a User 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 Online 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 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 Online Service and its features. The Service 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 Online Service to whom you provide or submit Your Content.
    10. 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.
    11. USER NAMES AND PASSWORDS: You may not disclose Your passwords other than to Your Users. 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 appropriateness 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 the Online Services and Content, and notify Us promptly of any such unauthorized access or use, and (d)use Online Services and Content 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 Online Service. You must meet the system requirements that Bizagi determines.
    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 Online Service. We may request information and data from You in connection with our provision of 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 actual or suspected copying or distribution of the Service in violation of this Agreement.
  5. AVAILABILITY OF THE SERVICE: Your access to and use of the Online Service may be suspended at any time for any reason, in particular, 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)during 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 in other event in which We determine, in Our sole discretion, that, if the Online Service were not suspended, a risk might be crated to the Online Service, to You or to any of Our other customers; or (c) in the event that Bizagi determines that the Online Service 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.
    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.
  6. TERM AND TERMINATION
    1. TERM: This Agreement begins when You first create a login for the Online Service and accept this Agreement and continues until the expiration of the Free Trial Term, unless earlier terminated as provided herein.
    2. TERMINATION: We may terminate this Agreement and Your access to the Online Service immediately with or without cause, and without any obligation to notify You. Upon the date of expiry of the Free Trial Term, you shall not access the Online Services.
    3. TREATMENT OF YOUR CONTENT AT TERMINATION: (a) Modeler Services: After termination or expiration of this Agreement, at Your request, We will make available Your Content stored on the Online Service for a period of fifteen (15) days counted from 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 Online Service. (b) Studio Collaboration Services: After termination or expiration of this Agreement, We will have no obligation to maintain Your Content and may delete it from the Online Service. Before the expiration of this Agreement, Your Project will be available to be downloaded to a local project through the Studio application using Share processes option.
  7. 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:
      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 Online 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 Online Service;
      2. that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Content on the Online Service;
      3. 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.
    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, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE ONLINE SERVICE. BIZAGI DOES NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE ONLINE SERVICE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE AND THAT THE SERVICE WILL 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 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 SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  8. LIMITATION OF LIABILITY:
    1. 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 ARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
  9. 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 without being subject to confidentiality obligations, (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.
  10. INDEMNIFICATION
    1. 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.
  11. 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 and Wales.
    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 with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
    3. 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.
    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. 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 11.7 shall be null and void.

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