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Please select the applicable Bizagi End User License Agreement below based on the specific Bizagi Software product that you will be downloading, installing, or otherwise accessing.

 

BIZAGI END USER LICENSE AGREEMENT – BIZAGI AUTOMATION SERVER

PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING OR USING THE BIZAGI AUTOMATION SERVER SOFTWARE (“SOFTWARE”), YOU AGREE TO THE TERMS OF THIS EULA. THIS EULA IS A BINDING CONTRACT BETWEEN BIZAGI GROUP LTD. AND ITS AFFILIATES (“BIZAGI” OR “WE”) AND THE COMPANY OR OTHER LEGAL ENTITY THAT THE INDIVIDUAL ACCEPTING THIS EULA REPRESENTS (“END USER”). BIZAGI AND END USER ARE ALSO REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”. THIS EULA GOVERNS END USER’S ACCESS TO AND USE OF THE BIZAGI AUTOMATION SERVER, WHICH INCLUDES COMPUTER SOFTWARE (INCLUDING ONLINE AND ELECTRONIC DOCUMENTATION) AND ANY ASSOCIATED MEDIA AND PRINTED MATERIALS THAT IS OFFERED EITHER DIRECTLY BY BIZAGI OR THROUGH A BIZAGI AUTHORIZED RESELLER AND ACCESSED BY END USER. THIS EULA APPLIES TO LICENSE KEYS, UPDATES, SUPPLEMENTS, ADD-ON COMPONENTS, AND GOVERNS ANY PRODUCT SUPPORT SERVICES RELATING TO THE SOFTWARE.

Last Updated: November 20, 2020

  1. License Grant. Subject to End User’s strict compliance with the terms of this EULA, and payment of any applicable Fees, Bizagi hereby grants to End User, during the Subscription Term, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right to use the Software, in object code form. Bizagi grants End User the following rights, conditioned on End User’s compliance with all the terms and conditions of this EULA:

    1. End User may install a copy of Bizagi Automation Server on any number of servers. No server license needs to be obtained

    2. User License Model.

      1. Where End User has purchased the Software on Bizagi’s User license model, End User (including its Authorized Users) has the right to use the Software up to the number of Authorized Users identified on the Order Form or in End User’s agreement with the Bizagi Authorized Reseller, as applicable. End User needs to obtain a separate User License for each individual (“User”) that accesses or uses the Bizagi Automation Server directly or indirectly on a production server. A User License gives a User the right to participate in a running process and to access or use the services of the Bizagi Automation Server. A User License is unique to a person and may not be shared, nor may it be reassigned other than for the permanent transfer of user rights to another person.

      2. Non-Production User Licenses. For each User License End-User purchases, End-User have the right to use one Non-production User License. End-Users are not permitted to use Non-production User Licenses for production use (including but not limited to processing of production data or for transferring data to any production business system) and its use of these licenses must be strictly limited to product evaluation, development, testing, quality assurance activities or disaster recovery. The evaluation period is not limited in time. End-User has the option to convert its evaluation rights to subscription or perpetual rights by purchasing licenses and activating them.

      3. Initiator License. An Initiator License is an alternative to User Licenses for external users. External users are users who are not End User’s employees or onsite contractors. End User needs to obtain a separate Initiator License for each external user that accesses or uses the Bizagi Automation Server directly or indirectly. It is a restricted license and gives external users the right to initiate cases and participate in subsequent activities (e.g. enter additional info, adjust/update existing information or documents) of the same process instance (case) they initiated. An Initiator License permits access of an external user, as long as that access is for your benefit and not the external user’s. End User may not use Initiator Licenses to provide service bureau, hosting services, or any sort of commercial information technology services to third parties, or transfer the Software to a third party, unless otherwise agreed to in writing by Bizagi.

      4. No "Multiplexing" or "Pooling." Use of software or hardware that reduces the number of Users directly accessing or utilizing the Bizagi Automation Server (sometimes called "multiplexing" or "pooling" software or hardware) does not reduce the number of User Licenses or Initiator Licenses required; the required number of User Licenses or Initiator Licenses would equal the number of distinct inputs (named or unnamed Users) to the multiplexing or pooling software or hardware "front end."

    3. Usage Based Licensing Model. Where End User has purchased the Software on Usage Based Licensing model, End User (including its Authorized Users) shall have the right to use the Software up to the number of BPU’s included in the Performance Level identified on the Order Form, or in End User’s agreement with the Bizagi Authorized Reseller, as applicable.

    4. Academic Software. To use Software identified as “Academic Software” End User must be a not-for-profit college, university, or institution of higher education. End User has the right to use free of charge a maximum of twenty (20) User Licenses in each Bizagi installation. Users must be students, faculty or staff members authorized by End User to use the Software while performing duties within the scope of their employment or assignment. End User can use the Software for non-commercial, teaching purposes only, including conducting academic research

  2. License Key. Upon acceptance of this EULA, End User will receive a License Key that will enable End User to activate or operate the Software. End User may not relicense, reproduce or distribute any License Key. Activation is mandatory and associates the use of the Software with a specific customer installation (server or servers). During activation, the Software will send information to Bizagi. This information includes the Software version, the License Key, language and Internet protocol address. By using the Software, End User consent to the transmission of this information. End User can activate the Software by Internet or offline.

  3. Ownership.Bizagi or its licensors own the title, copyright and other intellectual property rights in the Software, and no title to the Software or such intellectual property rights is transferred to End User. Thus, End User will not acquire any rights of ownership to the Software except the limited license to use the Software as expressly set forth in this EULA, and Bizagi and its licensors retain all other rights. End User agree not to alter or remove the copyright notice, or any other notices of proprietary rights, that appear on and in the Software. All right, title and interest in the Software, and unless specified otherwise, in any ideas, know how, work product and programs which are developed by Bizagi in the course of providing any support and maintenance or professional services, including any enhancements or modifications made to the Software, shall at all times remain the property of Bizagi.

  4. License Restrictions. Except as expressly permitted herein, Customer shall not directly or indirectly, without the express written consent of Bizagi:

    1. Modify or alter the Software in any way.

    2. Use the Software in violation of third-Party privacy rights

    3. Disassemble, decompile or reverse engineer the Software in order to obtain the source code, which is a trade secret of Bizagi.

    4. Make any the Software available to, or use it for the benefit of, anyone other than End User or its Authorized Users.

    5. Use the Software to provide commercial IT services to any third party, to provide commercial hosting or timesharing, or to sublicense, rent, or lease the Software.

    6. Cause or permit others to perform or disclose any benchmark or performance tests of the Software.

    7. Access the Software or the Documentation in order to build a similar or competitive product or service.

    8. Permit direct or indirect access to, or use of, the Software in a way that circumvents the usage limits set out in the applicable Order Form or agreement.

    9. Access or use the Software in any way that is adverse to Bizagi´s then-current acceptable use policy.

    10. Exceed the authorized number of Users or number of BPU’s as, applicable, in accordance with the corresponding Order Form or in the End User’s agreement with the Bizagi Authorized Reseller

    11. Use the Software for any unlawful purpose.

    12. Create derivative works of the Software or the Documentation or any components thereof.

  5. Term / Termination

    1. This EULA shall apply commencing on the Effective Date and continuing for as long as End User has access to the Software (the “Term”). If End User licensed the Software on a perpetual basis, the Term of the license is perpetual, unless terminated as set forth in this EULA. If End User licensed the Software on a subscription basis, End User’s rights to use the Software are limited to the ”Subscription Term” set forth in the Order Form or in the End User’s agreement with the Bizagi Authorized Reseller, as applicable.

    2. If the Software is licensed on a subscription basis, upon expiration, the Subscription Term shall automatically renew for terms equal in length to the immediately preceding term, unless either Party provides written notice of non-renewal at least forty-five (45) days prior to the end of the then current subscription term.

    3. Maintenance Term. Software Maintenance, as described in Section 9 below, is included during the Subscription Term for Software purchased on a subscription basis. For Software purchased on a perpetual basis, the term for the Software Maintenance will be as set forth on the corresponding Order Form or in the agreement between the Bizagi Authorized Reseller and the End User (“Maintenance Term”). The minimum Maintenance Term is one (1) year following End User’s purchase of the Software. Upon expiration of the initial Maintenance Term, the Maintenance Term will automatically renew for terms equal in length to the immediately preceding Maintenance Term (each, a “Renewal Term”), unless either party provides written notice of non-renewal at least forty-five (45) days prior to the end of the current Maintenance Term. Additional Authorized Users may be added during the Maintenance Term, subject to the following: (a) Software Maintenance for added Authorized Users will be coterminous with the pre-existing Maintenance Term; and (b) the Software Maintenance fee will be calculated on a pro-rata basis.

    4. Termination for Breach. Either Party may terminate this EULA for cause (a) if the other Party breaches any material term or provision of this EULA and, if capable of cure, such Party fails to cure such breach within thirty (30) days after receipt of notice of such breach; or (b) upon any insolvency of the other Party, any filing of a petition in bankruptcy by or against the other Party, any appointment of a receiver for the other Party, or any assignment for the benefit of the other Party’s creditors. Where applicable, Bizagi may also suspend End User’s access to the Software immediately if the Bizagi Authorized Reseller notifies Bizagi that End User has breached any material term of the agreement between End User and the Bizagi Authorized Reseller, including without limitation any payment obligations therein.

    5. Termination of Bizagi Authorized Reseller’s agreement with Bizagi. Where applicable, following any termination or expiration of the Bizagi Authorized Reseller’s agreement with Bizagi authorizing Bizagi Authorized Reseller to resell the Software, each End User’s subscription to the Software outstanding at the time of such termination or expiration (“Existing Order”) shall remain in effect until the end of its Subscription Term, and shall continue to be governed by this EULA, provided that End User is not in breach of this EULA and Bizagi has received all payments due in connection with such Existing Orders. Except as provided herein, following a termination or expiration of a Bizagi Authorized Reseller’s agreement with Bizagi, Bizagi is under no obligation to provide the Software

  6. Consent to use Data. End User agrees that Bizagi may collect and use technical information that is gathered periodically to facilitate the provision of Software updates, product support and other services to End User (if any) related to the Bizagi Software, and to verify compliance with the terms of this EULA. Bizagi may use this information solely to improve our products or to provide services or technologies to End User and will not disclose this information in a form that personally identifies End User.

  7. End User Responsibilities: End User will (a) be responsible for Authorized Users’ compliance with this EULA, (b) be responsible for the accuracy, quality and legality of the End-User Data and the means by which it was acquired, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Software, and notify Bizagi promptly of any actual or suspected unauthorized access or use, copy or distribution of the Software in violation of this EULA, (d) use the Software only in accordance with the Documentation and all applicable local, state, national, and foreign laws, treaties and government regulations, including those related to data privacy, international communication, and the transmission of technical or personal data in connection with End-User’s use of the Software, and (e)notify Bizagi as soon as End User becomes aware of any unauthorized use of the Software by any person.

  8. Fees and Payment.

    1. Fees. End-User will pay fees specified in each Order Form. All fees are nonrefundable once paid except as otherwise expressly provided in this EULA or the applicable Order Form. Bizagi may increase the price specified in an Order Form for any Renewal Term.

    2. Payment. Unless otherwise provided in the applicable Order Form, Bizagi will charge End User for fees on an annual basis in advance and all amounts due under this EULA are payable net thirty (30) days from the date of the invoice. End User agrees to promptly notify Bizagi in writing of any changes to its billing information during any Term. Except as prohibited by law, Bizagi may charge a late fee of one and one-half percent (1.5%) per month on past due amounts. If End User requires a purchase order, vendor registration form, or other documentation, such requirement will in no way relieve, affect, or delay End User’s obligation to pay any amounts due hereunder.

    3. Taxes. All fees are exclusive of all taxes, included but no limited to transaction taxes, withholding taxes, sales tax, use tax, VAT, GST or other similar transaction tax. The prices set out in the Order Form are the net amount that End User shall pay to Bizagi without deduction or withholding for any taxes. End User shall be responsible for the collection, remittance and payment of applicable taxes to the appropriate tax authority. Even if End User is required to withhold any taxes, the amount paid by Customer to Bizagi shall be the full amount which Bizagi would have received had such fees been paid without such deductions or withholding or had Bizagi not been subject to such taxes or duties.

    4. Bizagi Authorized Resellers. End User may elect to license Bizagi Software through a Bizagi Authorized Reseller. End User’s obligation for payment to, and its relationship with, any Bizagi Authorized Reseller is between End User and such Bizagi Authorized Reseller, and End User must direct any claims for refunds owed hereunder to such Bizagi Authorized Reseller.

  9. Confidentiality.

    1. Definition. “Confidential Information" means any non-public information or materials belonging to, concerning or in the possession or control of a Party or its affiliates ("Disclosing Party") that is furnished, disclosed, or otherwise made available (directly or indirectly) to the other Party ("Receiving Party"), which is either clearly identified as confidential at the time of disclosure or is of a type that a reasonable person would recognize it to be confidential, including without limitation each Party’s respective business and marketing plans, technology and technical information, product designs, business processes, financial information (including costs, profit or margin information), inventions, research and development, employee skills and salaries, and customer information. The Parties agree to disclose only information that is required for the performance of obligations under this EULA.

    2. Exclusions: The confidentiality obligations of this EULA do not apply to any information that: a) is or becomes generally known to the public at the time of disclosure without breach of any obligation owed by the Receiving Party to the Disclosing Party; b) was rightfully known to the Receiving Party other than by a breach of an obligation of confidentiality prior to its disclosure by the Disclosing Party under this EULA; c) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party, as substantiated by written evidence; or d) is lawfully received from a third party without an obligation of confidentiality the Confidential Information of the Disclosing Party, as substantiated by written evidence.

    3. Non-Disclosure: Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: a) protect the Disclosing Party’s Confidential Information from unauthorized disclosure and use the same degree of care that the Receiving Party uses to protect its own Confidential Information, but in no event less than a commercially reasonable degree of care, b) not use the Disclosing Party’s Confidential Information for purposes other than those necessary to exercise a right or fulfill an obligation of this EULA, and c) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, attorneys, financial advisors, and agents who need such access for the Receiving Party to exercise a right or fulfill an obligation of this EULA, who have been informed of the confidential nature of such information, and who are subject to confidentiality obligations with the Receiving Party containing protections no less stringent than those herein.

    4. Compelled Disclosures: If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, such Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this section; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. b) the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by law to disclose any Confidential Information, such Party shall disclose only that portion of the Confidential Information that it is legally required to disclose.

    5. Survival: The provisions of this Section shall survive the termination of this EULA for a period of five (5) years from such termination; provided that the confidentiality obligations for Confidential Information that constitutes a trade secret (as determined under applicable law) shall survive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret under applicable law.

    6. To the extent Bizagi processes any Personal Data under this EULA, the terms of the Bizagi Data processing Agreement located at: https://www.bizagi.com/sa?BLI&CL&DPA shall apply.

  10. Maintenance and Support:

    1. Unless agreed to otherwise in the agreement between End-User and Bizagi or the Bizagi Authorized Reseller, Bizagi will provide End User with Software Maintenance as set forth at the following URL: https://www.bizagi.com/sa?BC&OP&SM. If End User has opted to purchase Premium Support, the terms set forth at the following link shall apply: https://www.bizagi.com/sa?BC&OP&PS. In each of the foregoing documents, references to Customer shall be deemed to refer to End User.

    2. Reinstatement of Software Maintenance (Perpetual License Only). Notwithstanding the automatic renewal clause set forth herein, if Software Maintenance lapses for any period of time as a result of End User’s non-renewal or failure to pay the applicable Software Maintenance fees, Bizagi shall be entitled to immediately terminate or suspend all Software Maintenance without notice and shall be entitled to Software Maintenance fees retroactive to the expiration date of the previous Maintenance Term for any Software Maintenance service provided. If Software Maintenance is terminated or expires, the Parties may agree in writing to subsequently renew or reinstate Software Maintenance for a Renewal Term of at least twelve months from the date of such renewal. In such case, as a prerequisite to renewal, Customer shall pay at a minimum all Software Maintenance fees that would have been due had Software Maintenance not terminated or expired and may be required to pay additional reinstatement fees.

  11. Limited Warranty.

    1. For Software purchased on a subscription basis, Bizagi warrants that the Software will perform in all material respect as described in the Documentation during the Subscription Term.

    2. For Software purchased on a perpetual basis, Bizagi warrants that the Software will perform substantially in accordance with the documentation for a period of ninety (90) days counted from the date of purchase.

    3. Other than the limited warranties set forth in this Section 10, the Software is being supplied “as is” and Bizagi does not guarantee that the Software will operate error-free or uninterruptedly, or that Bizagi will correct all Software errors. The warranties indicated herein are exclusive and Bizagi grants no other warranties, including but not limited to warranties of merchantability and fitness for a particular purpose. For any breach of the foregoing warranties, End User’s exclusive remedy and Bizagi’s entire liability shall be the correction of the problems or errors with the Software that caused the breach of warranty, or, if Bizagi cannot substantially correct the problems or errors in a commercially reasonable manner, end user may terminate this license and submit to Bizagi, or where applicable, the Bizagi Authorized Reseller, a claim for refund of any prepaid fees covering the remainder of the Subscription Term. In any case, in order for End User to submit a warranty claim under this EULA, End-User must submit a support ticket in order to resolve the non-conformity as set forth in Section 9. Notwithstanding the foregoing, this warranty will not apply to any failure due to a defect in or modification of the Software that is caused or made by End User, any user, or any person acting at End User’s direction.

  12. Warranty Disclaimer. THE EXPRESS WARRANTIES SET FORTH IN THIS EULA ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED BY BIZAGI AND ITS SUPPLIERS. Some jurisdictions do not allow certain disclaimers and limitations of warranties, so portions of the above limitations may not apply to End User. This limited warranty gives End User specific rights and End User may have other rights, which vary from state to state, country to country.

  13. Limitation of Liability.

    1. IN NO EVENT SHALL BIZAGI OR ITS SUPPLIERS BE LIABLE TO END USER FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS, DATA, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

    2. IN NO EVENT WILL BIZAGI’S AGGREGATE LIABILITY FOR DIRECT DAMAGES TO PROPERTY OR PERSON (WHETHER IN ONE INSTANCE OR A SERIES OF INSTANCES) EXCEED THE AMOUNT PAID BY END USER TO BIZAGI, OR WHERE APPLICABLE, TO BIZAGI AUTHORIZED RESELLER FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

  14. Indemnification.

    1. Indemnification by Bizagi: Bizagi will indemnify and hold End User harmless, from and against any claim against End User brought by a third party alleging that the Software infringes or misappropriates such 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 End User in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Bizagi for such defense, provided that (a) End User promptly notify Bizagi of the threat or notice of such IP Claim; (b) Bizagi has sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) End User fully cooperates with Bizagi in connection therewith. The provisions of this Section state the sole, exclusive and entire liability of Bizagi to End User and constitutes End User’s sole remedy with respect to an IP Claim brought by reason of access to or use of the Software by End User.

    2. Indemnification Exclusions. Bizagi shall have no obligations under this section or any other liability for any claim of infringement or misappropriation resulting or alleged to result from: (a) any modification, alteration or enhancement to the applicable Software by any person or entity other than Bizagi; (b) any use of the applicable Software by End User in any manner for which such Software was not designed or otherwise in a manner inconsistent with the Documentation; (c) the combination, operation or use of the applicable Software or any part thereof in combination with any equipment, software, data or documentation not approved by Bizagi; (d) materials, items, resources, or services provided or performed by End User (whether or not used in connection with or incorporated into the Software); and (e) End User’s continued use of the allegedly infringing Software after being notified thereof or after being informed of and provided with modifications that would have avoided the alleged infringement.

    3. Indemnification Remedy: In the event an infringement or misappropriation claim as described in Section 13(a) arises, or if Bizagi reasonably believes that a claim is likely to be made, Bizagi shall have the right, at its sole option and in lieu of indemnification, to: (a) modify the applicable portion of the Software to become non-infringing but functionally equivalent; (b) replace the applicable portion of the Software with material that is non-infringing but functionally equivalent; (c) obtain for End User the right to use the applicable portion of the Software upon commercially reasonable terms; or (d) remove the infringing or violative aspect of the Software if it can be removed without material degradation of the applicable Software.

    4. Indemnification by End User: End User will defend Bizagi against any claim, demand, suit or proceeding made or brought against Bizagi by a third party alleging that End User Data, or End User’s use of the Software in breach of this EULA, 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 Bizagi under a court-approved settlement of, a Claim Against Bizagi, provided Bizagi (a) promptly give End User written notice of the Claim Against Bizagi, (b) give End User sole control of the defense and settlement of the Claim Against Bizagi (except that you may not settle any Claim Against Bizagi unless it unconditionally releases Bizagi of all liability), and (c) give End User all reasonable assistance, at End User’s expense.

  15. General Provisions.

    1. Excludes Services. This EULA shall not apply to your use of cloud services, or professional services that you purchase from Bizagi, nor to any software offered as Freeware (“Excluded Services”). All such Excluded Services are governed exclusively by the terms of the agreement that you have executed or accepted, that covers such Excluded Services.

    2. Audit. Bizagi may audit End User’s use of the Software to assess whether such use is in accordance with this EULA and to ensure End User’s compliance with the terms of this EULA or the terms of the agreement between End User and the Bizagi Authorized Reseller. The End User agrees to cooperate with Bizagi’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with the End User’s normal business operations. In the event an audit shows that End User has used the Software in excess of the usage rights set forth in an Order Form or in the agreement between End User and the Bizagi Authorized Reseller, where applicable (i.e. End User has used more BPUs or activated more Authorized Users than what is permitted), Bizagi may invoice End User for such excess usage (either directly or through the Bizagi Authorized Reseller.

    3. Marketing: Bizagi may: (i) include End User’s name and logo in a list of Bizagi’s customers, (ii) refer to End User’s name and logo on Bizagi’s website; and (iii) refer to End User’s name and logo in marketing materials.

    4. Contracting Legal Entity, Governing Law and Jurisdiction. The Bizagi contracting legal entity under this EULA, the address to which direct notices under this EULA should be sent, what law will apply in any dispute or lawsuit arising out of or in connection with this EULA, and which courts have jurisdiction over any such dispute or lawsuit, depend on where End User is domiciled, as follows:

      If End User is domiciled in: The Bizagi Contracting Entity is: 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 200 Massachusetts Ave Northwest, Washington, DC, 20001, United States The Laws of the State of Delaware The Courts of the State of Delaware
      A Country in Europe other than Switzerland, Germany, or Spain; the Middle East; Africa; or 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 Bizagi Iberica Calle Serrano, 25 planta 4º Drch 28001-Madrid, España The Laws of Spain or The Courts of Spain
      Germany Bizagi Deutschland GmbH Nymphenburgerstraße 4, 80335 München The laws of Germany The courts of Munich, Germany
      A country in South or Central America. Bizagi Latam Carrera 7 No 71 - 52, Torre B, Oficina 1302, Bogotá, Colombia The laws of the Republic of Colombia The courts of the Republic of Colombia
    5. Export Restrictions: Export laws and regulations of the United States of America and any other relevant local export laws and regulations apply to the Software https://www.bizagi.com/export-statement. End-User agrees that such export laws govern its use of the Software (including technical data) provided under this Agreement, and the End-User agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). End User agrees that no data, information, software programs and/or materials resulting from the Software (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

    6. Survival. Notwithstanding anything to the contrary contained herein, all terms of this EULA 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 EULA shall survive any termination or expiration of this EULA.

    7. Relationship. No joint venture, partnership, employment, or agency relationship exists between End User and Bizagi as a result of this EULA or End User’s use of the Software.

    8. Entire Agreement: This EULA, together with all referenced Schedules and URLs, constitutes the full and complete understanding and agreement between the Parties with respect to the subject matter of this EULA and constitutes a full statement of the terms of their agreement. This EULA supersedes all prior written agreements and contemporaneous oral agreements with respect to the subject matter hereof. End User has not relied upon any representation or promise made or given by or on behalf of Bizagi that is not set forth herein as an inducement to enter into this Agreement. End User has not relied on the delivery of any future functionality regardless of any verbal or written communication about Bizagi’s future plans. Although End User may issue a purchase order or similar document confirming any order form issued under this EULA, End User expressly agrees and confirms that no terms and conditions included in such document shall be enforceable against Bizagi even if the date included therein is subsequent to the date of End User’s acceptance of this EULA or any Order Form and even if Bizagi has not expressly rejected such terms and conditions.

    9. Amendment. This EULA may only be modified by a written agreement signed by duly authorized representatives of End User and Bizagi.

    10. Severability. If any provision of this EULA 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.

    11. Waiver. Bizagi's failure to enforce any right or provision in this EULA shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Bizagi in writing.

    12. Assignment. This EULA may not be assigned by End User 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.

    13. Force Majeure. Neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party; provided that such Party gives as reasonable as practicable written notice thereof to the other Party and uses diligent efforts to mitigate the effect of a force majeure event and resume performance. If such event continues for more than 30 days, either Party may cancel unperformed services and affected orders upon written notice. A Force Majeure event does not excuse End User’s payment obligations hereunder.

  16. GLOSSARY

    1. Affiliate: is any entity that, with respect to a Party to this Agreement, controls, is controlled by, or is under common control with such Party, either directly or indirectly, by share ownership, contract or otherwise. For purposes of this definition, the term “control” and correlative terms mean ownership, directly or through one or more Affiliates, of fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or fifty percent (50%) or more of the equity interests in the case of any other type of legal entity, or status as a general partner in any partnership, or any other arrangement whereby a Party controls or the power to direct or cause the direction of the management and policies of an entity

    2. Authorized Users: means those employees, consultants, agents, contractors, and third parties, who are authorized by the End User to use the Software in accordance with this EULA. Authorized User access control shall be integrated with End User’s own user authentication system or can be managed by End User using Bizagi´s own authentication system. Only Authorized Users can access the Software.

    3. Bizagi Authorized Reseller: means the entity that has been authorized and certified as a reseller of the Software and that resells the Software to the End-User pursuant to a separate contract between such entity and the End User.

    4. Bizagi Performance Units (BPUs): A BPU is a unit of measurement for the storage capacity and the performance (processing capacity) of a Bizagi Automation Server environment. One BPU encompasses the different resources needed for an environment to execute 10,000 Steps per month.

    5. Documentation means all user manuals, operating manuals, technical manuals and any other instructions, specifications, documents or materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, or technical or other components, features or requirements, of the Software, which are available at http://help.bizagi.com or any other URL as may be provided to End User from time to time.

    6. Order Form means an executed ordering document or online order issued or otherwise approved in writing by Bizagi that incorporates this EULA by reference and sets forth the commercial details of the Software made available to Customer.

    7. Performance Levels: means the levels available distinguished by storage capacity and performance of the Software, which are measured in Bizagi Performance Units (BPUs).

    8. Step: A Step is any shape in a process diagram, except for the start and the end shapes.

       

    9. Third Party Content: means information obtained by the End User from publicly available sources or made available directly to the End User by other companies or individuals under separate terms and conditions, that the End User decides to use and in the Software.

       

BIZAGI CLOUD END USER LICENSE AGREEMENT

PLEASE READ THIS BIZAGI CLOUD END-USER LICENSE AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO ACCESS OR USE THE SERVICES. THIS EULA IS A BINDING CONTRACT BETWEEN BIZAGI GROUP LTD. AND ITS AFFILIATES (“BIZAGI” OR “WE”) AND THE COMPANY OR OTHER LEGAL ENTITY THAT THE INDIVIDUAL ACCEPTING THIS EULA REPRESENTS (“END USER”). BIZAGI AND END USER ARE ALSO REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”. THIS EULA GOVERNS END USER’S ACCESS TO AND USE OF THE BIZAGI CLOUD SERVICE, AS MORE FULLY DESCRIBED IN SCHEDULE 1, WHICH IS OFFERED THROUGH A BIZAGI AUTHORIZED RESELLER AND ACCESSED BY END USER VIA THE INTERNET (THE “SERVICES”).
Last Updated: November 20, 2020

  1. License Grant. Subject to End User’s strict compliance with the terms of this EULA, and payment of any applicable Fees, Bizagi hereby grants to End User, during the Subscription Term, a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right to access and use the Services via username and password over the Internet up to (a) the number of BPUs permitted for the Performance Level subscribed to and / or (b) the number of users permitted under the Subscription, as applicable.

  2. Use Restrictions. Except as expressly permitted herein, Customer shall not directly or indirectly, without the express written consent of Bizagi:

    1. make any Services available to, or use any Services for the benefit of, anyone other than End User or its Authorized Users;

    2. use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-Party privacy rights;

    3. use the Services to store or transmit malicious code;

    4. interfere with or disrupt the integrity or performance of the Services or third-Party data contained therein;

    5. permit direct or indirect access to, or use of, any Services in a way that circumvents the usage limits set out in the applicable Order Form;

    6. copy the Services, including the software elements of the Services, or any feature, function or user interface thereof;

    7. perform or disclose any of the following security testing of the Services or associated infrastructure without Bizagi’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing;

    8. cause or permit others to perform or disclose any benchmark or performance tests of the Services;

    9. use the Services for any unlawful purpose;

    10. license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make available the Services or the Documentation to any third party;

    11. modify the software elements of the Services;

    12. create derivative works of the Services or the Documentation or any components thereof;

    13. translate, reverse engineer, decompile, disassemble or otherwise attempt to discover for any reason any source code, underlying ideas or algorithms of the Services or Documentation; or

    14. remove any legends relating to the copyright, trademarks, patents, or confidentiality from any copies of the Documentation or any print of a screen display from the Services.

  3. Ownership. The Services are licensed, not sold. Except as expressly set forth herein, Bizagi retains any and all rights in the Services, including all intellectual property rights therein. The Bizagi name and logo, and any other product names associated with the 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.

  4. End User Data / Data Protection / Security.

    1. Subject to the terms set forth herein, Bizagi does not own any data, information, or material that End User or Authorized Users submit in the course of using the Services or any information or data developed or derived therefrom (“End User Data”). End User has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of use of all End User Data.

    2. End User hereby grants to Bizagi during the Subscription Term a limited, terminable worldwide, royalty-free, fully paid-up, fully sublicensable (through multiple tiers), transferable license to use the End User Data for purposes of providing the Services to End User. End User shall be solely responsible for handling and processing all notices sent to End User (or any Authorized User) by any third party claiming that the End User Data violates such party’s rights.

    3. End User shall obtain at its sole expense any rights and consents from third parties necessary for the End User Data, as well as other vendors’ products provided by End User that End User uses with the Services, including such rights and consents as necessary for Bizagi to perform the Services under this Agreement.

    4. To the extent Bizagi processes any Personal Data under this EULA, the terms of the Bizagi Data processing Agreement located at:https://www.bizagi.com/sa?BLI&CL&DPA shall apply.

    5. The Bizagi Cloud Technical and Organizational Security Measures that Bizagi has implemented are available at: https://www.bizagi.com/sa?BC&CL&DS.

  5. Term / Termination.

    1. Term. This EULA shall apply commencing on the Effective Date and continuing for as long as End User has access to the Services (the “Subscription Term”).

    2. Termination For Breach. Either Party may terminate this EULA for cause (a) if the other Party breaches any material term or provision of this EULA and, if capable of cure, such Party fails to cure such breach within thirty (30) days after receipt of notice of such breach; or (b) upon any insolvency of the other Party, any filing of a petition in bankruptcy by or against the other Party, any appointment of a receiver for the other Party, or any assignment for the benefit of the other Party’s creditors.

    3. Suspension: Bizagi may temporarily suspend End User’s password, account, and access to or use of the Services if End User violates any provision of the EULA, or if in Bizagi’s reasonable judgment, the Services or any component thereof are about to suffer a significant threat to security or functionality. Bizagi may also suspend End User’s access to the Services immediately if the Bizagi Authorized Reseller notifies Bizagi that End User has breached any material term of the agreement between End User and the Bizagi Authorized Reseller, including without limitation any payment obligations therein.

    4. Termination of Bizagi Authorized Reseller’s agreement with Bizagi. Following any termination or expiration of the Bizagi Authorized Reseller’s agreement with Bizagi authorizing Bizagi Authorized Reseller to resell the Services, each End User’s subscription to the Services outstanding at the time of such termination or expiration (“Existing Order”) shall remain in effect until the end of its subscription term, and shall continue to be governed by this EULA, provided that Customer is not in breach of this EULA and Bizagi has received all payments due in connection with such Existing Orders. Except as provided herein, following a termination or expiration of a Bizagi Authorized Reseller’s agreement with Bizagi, Bizagi is under no obligation to provide the Services directly to End User, or to assume a direct contractual relationship with End User.

    5. Upon expiration of the Subscription Term or termination of this EULA for any reason, End User shall cease all use of and access to the Services; provided however that End User may access the Services for the period of time set forth in Section 7 for the sole purpose of retrieval of End User Data.

  6. Maintenance and Support. Unless agreed to otherwise in the agreement between End User and the Bizagi Authorized Reseller, Bizagi will provide End User with Software Maintenance as set forth at the following URL: https://www.bizagi.com/sa?BC&CL&BCM. If End User has opted to purchase Premium Support, the terms set forth at the following link shall apply: https://www.bizagi.com/sa?BC&CL&PS. In each of the foregoing documents, references to Customer shall be deemed to refer to End User.

  7. Data Retrieval. Upon the expiry of the subscription, End User shall not access or use the Services, including the Documentation; however, at End User’s request, and for a period of up to 60 days for Automation Services and 15 days for Studio Collaboration Services and Modeler Studios, after the effective date of termination (“Retrieval Period”), Bizagi will make available the End User’s data so that it may be retrieved by End User. At the end of the Retrieval Period, Bizagi will have no obligation to maintain or provide any End User’s data and will thereafter delete or destroy all copies of the End User Data in the Services or otherwise in Bizagi’s possession or control, unless legally prohibited from doing so.

  8. Confidentiality.

    1. Definition. “Confidential Information" means any non-public information or materials belonging to, concerning or in the possession or control of a Party or its affiliates ("Disclosing Party") that is furnished, disclosed, or otherwise made available (directly or indirectly) to the other Party ("Receiving Party"), which is either clearly identified as confidential at the time of disclosure or is of a type that a reasonable person would recognize it to be confidential, including without limitation each Party’s respective business and marketing plans, technology and technical information, product designs, business processes, financial information (including costs, profit or margin information), inventions, research and development, employee skills and salaries, and customer information. The Parties agree to disclose only information that is required for the performance of obligations under this EULA.

    2. Exclusions: The confidentiality obligations of this EULA do not apply to any information that: a) is or becomes generally known to the public at the time of disclosure without breach of any obligation owed by the Receiving Party to the Disclosing Party; b) was rightfully known to the Receiving Party other than by a breach of an obligation of confidentiality prior to its disclosure by the Disclosing Party under this EULA; c) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party, as substantiated by written evidence; or d) is lawfully received from a third party without an obligation of confidentialitythe Confidential Information of the Disclosing Party, as substantiated by written evidence

    3. Non-Disclosure: Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: a) protect the Disclosing Party’s Confidential Information from unauthorized disclosure and use the same degree of care that the Receiving Party uses to protect its own Confidential Information, but in no event less than a commercially reasonable degree of care, b) not use the Disclosing Party’s Confidential Information for purposes other than those necessary to exercise a right or fulfill an obligation of this EULA, and c) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, attorneys, financial advisors, and agents who need such access for the Receiving Party to exercise a right or fulfill an obligation of this EULA, who have been informed of the confidential nature of such information, and who are subject to confidentiality obligations with the Receiving Party containing protections no less stringent than those herein.

    4. Compelled Disclosures: If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, such Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this section; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. b) the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by law to disclose any Confidential Information, such Party shall disclose only that portion of the Confidential Information that it is legally required to disclose.

    5. Survival: The provisions of this Section shall survive the termination of this EULA for a period of five (5) years from such termination; provided that the confidentiality obligations for Confidential Information that constitutes a trade secret (as determined under applicable law) shall survive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret under applicable law.

  9. User Accounts. End User shall ensure that only Authorized Users can access the Services. User accounts may not be shared among individuals or used to provide access to the Services to individuals who are not the individual associated with the corresponding user account.

  10. End User Responsibilities. End User will (a) be responsible for Authorized Users’ compliance with this EULA, (b) be responsible for the accuracy, quality and legality of the End User Data and the means by which it was acquired, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Bizagi promptly of any such unauthorized access or use, and (d) use the Services only in accordance with the Documentation and all applicable local, state, national, and foreign laws, treaties and government regulations, including those related to data privacy, international communication, and the transmission of technical or personal data in connection with End User’s use of the Services.

  11. EQUIPMENT AND SOFTWARE. End User must provide at its own expense Internet access, compatible software and compatible equipment to access and use the Services. End User must meet the system requirements that Bizagi specifies.

  12. NOTICE OF UNAUTHORIZED USE. End User must report to Bizagi immediately, and use reasonable efforts to stop immediately, any actual or suspected copying or distribution of the Services in violation of this EULA.

  13. AVAILABILITY OF THE SERVICE. Bizagi will endeavor to make the Services available 99.95% of the time for Automation Services and 99.9% of the time for Modeler Services and Studio Collaboration Services, as further described in the Bizagi Cloud Service Level Agreement available at: https://www.bizagi.com/sa?BC&CL&SLA (the “SLA”). End User must submit any requests for Service Credits that it is owed in accordance with the SLA to the Bizagi Authorized Reseller.

  14. Warranty.

    1. Bizagi warrants that during the Subscription Term the Services will perform in all material respects as described in the Documentation.

    2. DISCLAIMER: BIZAGI DOES NOT GUARANTEE THAT (A) THE SERVICES WILL OPERATE ERROR-FREE OR UNINTERRUPTEDLY, OR THAT BIZAGI WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH END USER DATA OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY BIZAGI, AND (C) THE SERVICES WILL MEET END USER’S REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. END USER ACKNOWLEDGES THAT BIZAGI DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BIZAGI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. BIZAGI IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM END USER’S CONTENT THIRD-PARTY CONTENT. BIZAGI DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF ANY THIRD PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT.

    3. ADDITIONAL DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE. END USER FURTHER ACKNOWLEDGES THAT IN ENTERING THIS EULA IT HAS NOT RELIED ON ANY PROMISE, WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH HEREIN.

    4. EXCLUSIVE REMEDY: FOR ANY BREACH OF THE WARRANTY SET FORTH IN SECTION 14(a), END USER’S EXCLUSIVE REMEDY AND BIZAGI’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF BIZAGI CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, END USER MAY TERMINATE THE AFFECTED SERVICES AND SUBMIT TO THE BIZAGI AUTHORIZED RESELLER A CLAIM FOR REFUND OF ANY PREPAID FEES COVERING THE REMAINDER OF THE SUBSCRIPTION TERM. IN ANY CASE, IN ORDER FOR END USER TO SUBMIT A WARRANTY CLAIM UNDER THIS EULA, END USER MUST SUBMIT A SUPPORT TICKET IN ORDER TO RESOLVE THE NON-CONFORMITY AS SET FORTH IN SECTION 6.

  15. LIMITATION OF LIABILITY / EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES.

    1. IN NO EVENT SHALL BIZAGI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY END USER TO THE BIZAGI AUTHORIZED RESELLER FOR THE SERVICES. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

    2. EXCEPT FOR ANY LIABILITY THAT CANNOT BE LIMITED BY LAW, IN NO EVENT WILL BIZAGI HAVE ANY LIABILITY TO END USER 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.

  16. INDEMNIFICATION.

    1. Indemnification by Bizagi: Bizagi will indemnify and hold End User harmless, from and against any claim against End User brought by a third party alleging that the Services infringes or misappropriates such 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 End User in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Bizagi for such defense, provided that (a) End User promptly notify Bizagi of the threat or notice of such IP Claim; (b) Bizagi has sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) End User fully cooperates with Bizagi in connection therewith. The provisions of this Section state the sole, exclusive and entire liability of Bizagi to End User and constitutes End User’s sole remedy with respect to an IP Claim brought by reason of access to or use of the Services by End User

    2. Indemnification Exclusions. Bizagi shall have no obligations under this section or any other liability for any claim of infringement or misappropriation resulting or alleged to result from: (a) any modification, alteration or enhancement to the applicable Services by any person or entity other than Bizagi; (b) any use of the applicable Services by End User in any manner for which such Services were not designed or otherwise in a manner inconsistent with the Documentation; (c) the combination, operation or use of the applicable Services or any part thereof in combination with any equipment, software, data or documentation not approved by Bizagi; (d) materials, items, resources, or services provided or performed by End User (whether or not used in connection with or incorporated into the Services); and (e) End User’s continued use of the allegedly infringing Services after being notified thereof or after being informed of and provided with modifications that would have avoided the alleged infringement.

    3. Indemnification Remedy: In the event an infringement or misappropriation claim as described in Section 16(a) arises, or if Bizagi reasonably believes that a claim is likely to be made, Bizagi shall have the right, at its sole option and in lieu of indemnification, to: (a) modify the applicable portion of the Services to become non-infringing but functionally equivalent; (b) replace the applicable portion of the Services with material that is non-infringing but functionally equivalent; (c) obtain for End User the right to use the applicable portion of the Services upon commercially reasonable terms; or (d) remove the infringing or violative aspect of the Services if it can be removed without material degradation of the applicable Services.

    4. Indemnification by End User: End User will defend Bizagi against any claim, demand, suit or proceeding made or brought against Bizagi by a third party alleging that End User Data, or End User’s use of the Services in breach of this EULA, 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 Bizagi under a court-approved settlement of, a Claim Against Bizagi, provided Bizagi (a) promptly give End User written notice of the Claim Against Bizagi, (b) give End User sole control of the defense and settlement of the Claim Against Bizagi (except that you may not settle any Claim Against Bizagi unless it unconditionally releases Bizagi of all liability), and (c) give End User all reasonable assistance, at End User’s expense.

  17. GENERAL PROVISIONS.

    1. Audit. Bizagi may audit End User’s use of the Services to assess whether such use is in accordance with this EULA and to ensure End User’s compliance with the terms of this EULA or the terms of the agreement between End User and the Bizagi Authorized Reseller. The End User agrees to cooperate with Bizagi’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with the End User’s normal business operations.

    2. Service Analyses. Bizagi may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services, to create statistical analyses, and for research and development purposes (“Service Analyses”). Bizagi may make Service Analyses publicly available; however, Service Analyses will not incorporate End User Data or End User’s Confidential Information in a form that could serve to identify the End User or any individual. Bizagi retains all Intellectual Property Rights in Service Analyses

    3. Marketing: Bizagi may: (i) include End User’s name and logo in a list of Bizagi’s customer to publicize the execution of this EULA, (ii) refer to End User’s name and logo on Bizagi’s website; and (iii) refer to End User’s name and logo in marketing materials. Further, End User agrees to serve as a reference for Bizagi following the go-live date of End User’s solution, upon written agreement between the Parties at that time.

    4. The Bizagi contracting legal entity under this EULA, the address to which direct notices under this EULA should be sent, what law will apply in any dispute or lawsuit arising out of or in connection with this EULA, and which courts have jurisdiction over any such dispute or lawsuit, depend on where End User is domiciled, as follows:

      If End User is domiciled in: The Bizagi Contracting Entity is: 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 200 Massachusetts Ave Northwest, Washington, DC, 20001, United States 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
      Germany or Switzerland Bizagi Deutschland GmbH Nymphenburgerstraße 4, 80335 München The Laws of Germany The Courts of Munich, Germany
    5. Export Restrictions: Export laws and regulations of the United States of America and any other relevant local export laws and regulations apply to the Services. End User agrees that such export laws govern its use of the Cloud Services (including technical data) provided under this Agreement, and the End User agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). End User agrees that no data, information, software programs and/or materials resulting from the Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

    6. Survival. Notwithstanding anything to the contrary contained herein, all terms of this EULA 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 EULA shall survive any termination or expiration of this EULA.

    7. Relationship. No joint venture, partnership, employment, or agency relationship exists between End User and Bizagi as a result of this EULA or End User’s use of the Services.

    8. Entire Agreement: This EULA, together with all referenced Schedules, constitutes the full and complete understanding and agreement between the Parties with respect to the subject matter of this EULA and constitutes a full statement of the terms of their agreement. This EULA supersedes all prior written agreements and contemporaneous oral agreements with respect to the subject matter hereof. End User has not relied upon any representation or promise made or given by or on behalf of Bizagi that is not set forth herein as an inducement to enter into this Agreement. End User has not relied on the delivery of any future functionality regardless of any verbal or written communication about Bizagi’s future plans.

    9. Amendment. This EULA may only be modified by a written agreement signed by duly authorized representatives of End User and Bizagi.

    10. Severability. If any provision of this EULA 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.

    11. Waiver. Bizagi's failure to enforce any right or provision in this EULA shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Bizagi in writing.

    12. Assignment. This EULA may not be assigned by End User 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.

    13. Force Majeure. Neither Party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions; or other event outside the reasonable control of the obligated Party; provided that such Party gives as reasonable as practicable written notice thereof to the other Party and uses diligent efforts to mitigate the effect of a force majeure event and resume performance. If such event continues for more than 30 days, either Party may cancel unperformed Services and affected orders upon written notice.

  18. GLOSSARY

    1. Affiliate: is any entity that, with respect to a Party to this Agreement, controls, is controlled by, or is under common control with such Party, either directly or indirectly, by share ownership, contract or otherwise. For purposes of this definition, the term “control” and correlative terms mean ownership, directly or through one or more Affiliates, of fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or fifty percent (50%) or more of the equity interests in the case of any other type of legal entity, or status as a general partner in any partnership, or any other arrangement whereby a Party controls or the power to direct or cause the direction of the management and policies of an entity

    2. Authorized Users: means those employees, consultants, agents, contractors, and third parties, who are authorized by the End User to use the Services in accordance with this EULA. Authorized User access control shall be integrated with End User’s own user authentication system or can be managed by End User using Bizagi´s own authentication system. Only Authorized Users can access the Services.

    3. Bizagi Authorized Reseller: means the entity that has been authorized and certified as a reseller of the Services and that resells the Services to the End User pursuant to a separate contract between such entity and the End User.

    4. Bizagi Performance Units (BPUs): A BPU is a unit of measurement for the storage capacity and the performance (processing capacity) of an Automation Service environment. One BPU encompasses the different resources needed for an environment to execute 10,000 steps per month.

    5. Documentation means all user manuals, operating manuals, technical manuals and any other instructions, specifications, documents or materials, in any form or media, that describe the functionality, installation, testing, operation, use, maintenance, support, or technical or other components, features or requirements, of the Services, which are available at http://help.bizagi.com or any other URL as may be provided to End User from time to time.

    6. Model Owner: means the Authorized User who creates and stores a new process. Owner can also “invite” Editors to view, modify and collaborate.

    7. Performance Levels: means the performance levels available to customers, distinguished by storage capacity and performance, which are measured in Bizagi Performance Units (BPUs).

    8. Step: A step is any shape in a process diagram, except for the start and the end shapes.

    9. Third Party Content: means information obtained by the End User from publicly available sources or made available directly to the End User by other companies or individuals under separate terms and conditions, that the End User decides to use and or store in the Services.

  1. Schedule 1 – Product Specific Terms

    BIZAGI CLOUD AUTOMATION SERVICES.

    1. The Bizagi Cloud – Automation Service is a subscription-based service that provides all the power of Bizagi Digital Business Platform in the cloud. Use of the Bizagi Cloud – Automation Service is measured on a per-usage basis and has no limit on the number of Authorized Users or process applications that can use the platform. The number of BPU’s included in End User’s subscription is as set forth in the agreement between End User and the Bizagi Authorized Reseller.

    2. Bizagi Cloud – Automation Service provides a private cloud for each customer. Each private cloud is isolated so that the cloud is not shared with other customers, and access is only granted to Authorized Users.

    3. Scale Up

      1. End User may request to scale up the Performance Level or add new environments during the Subscription Term by contacting the Bizagi Authorized Reseller. Such Bizagi Authorized Reseller will coordinate with Bizagi to comply with such request. End User will be required to pay any fees to the Bizagi Authorized Reseller resulting from such scale up in Performance Level in accordance with the payment terms of its agreement with the Bizagi Authorized Reseller.

      2. Automatic Scale Up / BPU Report. Bizagi will generate a BPU usage report on a monthly basis which shows End User’s BPU consumption during the previous month (“BPU Report”). If the BPU Report shows that End User has exceeded the maximum number of BPU’s or storage threshold included in the contracted Performance Level as permitted in its subscription for two consecutive months and End User fails to upgrade to the appropriate Performance Level during such two (2) month period, then Bizagi will notify the Bizagi Authorized Reseller and automatically scale up End User to the appropriate Performance Level. The appropriate Performance Level will be determined based on the average BPU usage during the previous two (2) month period. End User will be required to pay any fees to the Bizagi Authorized Reseller resulting from such scale up.

    4. Scale Down. Upon End User’s request to the Bizagi Authorized Reseller, Bizagi will permit Customer to Scale Down to a lower Performance Level, with such Scale Down going into effect at the time of the next renewal.

    5. System Reliability. Bizagi automatically maintains three replicas of database and servers to protect against hardware failure and increase system reliability.

    6. Upgrading Service. Whenever updates/upgrades are available, Bizagi will inform its end users and provide documentation and release notes. End User decides when to upgrade and requests the start of the upgrade procedure through the Bizagi Authorized Reseller. The Bizagi team will schedule the execution of the upgrade at an agreed date/time with the End User. In any event the upgrades must be completed within non-working days or hours.

    7. Virtual Private Network (VPN Service). If purchased, End User may choose to purchase a VPN Service to extend the End User’s private network and provide a tunnel over the communication channel between Bizagi Cloud – Automation Service and the End User’s corporate premises. The VPN Service includes initial setup, connectivity tests, and technical support. To use the VPN service the Customer needs a supported VPN device located on-premises, with a Public IP address (Ipv4) assigned, with capabilities to be configured using the Ipsec protocol. In the event that Customer has purchased a VPN Service, in the terms of this section 14, as well as Bizagi Cloud – Disaster Recovery Service, a second VPN Service must be acquired to access the Bizagi Cloud – Disaster Recovery Service.

  2. Bizagi Cloud – Modeler Services. Editors of a Model uploaded to the Bizagi Cloud Modeler Services can design, review and change the process flow from anywhere, using the Modeler desktop, and provide real-time feedback via online discussions with other team members. Changes to the process are visible in real time by all Editors or Contributors. Modeler Services provides an isolated private cloud where the definition of all End User’s Processes is securely stored in an environment that can only be accessed by Authorized Users.

    1. A subscription to Bizagi Cloud Modeler Services is required to be able to use the collaboration features, to save in the cloud process repository, to have a process portal and enjoy all other features included in the Service. An “Enterprise” subscription plan allows End User to invite Editors or Contributors.

    2. End User must have a current subscription for the Authorized Users of its Enterprise subscription plan. Each invitation (i.e., email address) may be used only by a single individual. All Authorized Users must be part of the Enterprise subscription plan.

    3. In the subscription, all processes are uploaded to the process repository and become part of Modeler Services. If End User adds more Authorized Users during the term of the Order Form, End User will be responsible for paying the yearly prorated fee. That is, End User will only be charged for the remaining number of days until the end of the Term.

    4. All Authorized Users are created as “Editors”, who have the ability to (1) upload their models, which will be part of the subscription, (2) open a shared Model with Modeler desktop to change process flow; (3) open a shared Model with Modeler desktop to include or change its documentation; and (4) include comments on any Model, diagram or shape via Modeler desktop or a browser. “Editors” can invite other users of the subscriptions as “Contributors” 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. Contributors have no access to edit process flows or Documentation in Modeler. Customer Data Representations.

    5. Editors acknowledge that any data submitted by them to Cloud Models may be retained indefinitely, distributed, displayed, published, modified, and used for any purpose by that Cloud Model’s Owner, notwithstanding any other provision of this Agreement. Bizagi has no responsibility to enforce any confidentiality obligation the Model’s Owner may have to End User. If an Editor submits content to a process, the Owner of that process may publish or distribute End User Data to a third party, revoke the Editor’s permission to access a Process and End User’s Data within it, or transfer all rights in the process to a third party.

    6. The Bizagi Cloud Modeler Services include 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 Customers Data by other users of the Bizagi Cloud Modeler Services to whom Customer provides or submit its data.

  3. Bizagi Cloud – Studio Collaboration Services. Bizagi Cloud Studio Collaboration Services, also mentioned as Studio Collaboration Services, offers Authorized Users the ability to work from anywhere on the automation of the processes that are shared with them. Changes are visible in real time, allowing users to co-develop and accelerating the project’s time to market. Bizagi Cloud Studio Collaboration Services provides an isolated private cloud where the definition and resources of automated processes are securely stored, in an environment that can only be accessed by Authorized Users.

    1. A subscription to Bizagi Cloud Studio Collaboration Services is required to invite users to create projects in the cloud development environment, run a work portal on the cloud development environment and enjoy all other features included in the Service. The initial subscription includes one user package that provides access to the Services for 5 Authorized Users, one cloud development environment where Authorized Users can upload and store an unlimited number of projects and run one project.

    2. In the subscription, all projects that are uploaded to the development environment become part of Bizagi Cloud Studio Collaboration Services.

    3. All Authorized Users have the ability to (1) upload their projects, which become part of the subscription, (2) open a shared Project with Bizagi Studio, (3) to automate processes shared with them and (4) share projects with other Authorized Users.

    4. The Customer is assigned a unique URL to access the Studio Collaboration Services via Bizagi Studio, which shall follow the format: https://build-companyname.bizagi.com

    5. Customer Data Representations

    6. Authorized Users acknowledge that any data submitted by them to a Cloud Project may be retained indefinitely, distributed, displayed, published, modified, and used for any purpose by that Cloud Project’s Owner, notwithstanding any other provision of this Agreement. Bizagi has no responsibility to enforce any confidentiality obligation the Owner may have to Customer. If an Authorized User submits content to a Cloud Project, the Owner of that Cloud Project may publish or distribute Customer Data to a third party, revoke Customer’s permission to access a Cloud Project and End User’s Data within it, or transfer all rights in the Cloud Project to a third party.

    7. The Services include features that permit Owners to invite other users to build and collaborate on a Cloud Project. Bizagi has no liability for any distribution, publication, display, use or disclosure of Customer’s Data by other users of the Services to whom Customer provides or submit its data.

BIZAGI END USER LICENSE AGREEMENT - FREEWARE

PLEASE READ THIS END-USER LICENSE AGREEMENT (“EULA”) CAREFULLY. BY DOWNLOADING, INSTALLING OR OTHERWISE ACCESSING OR USING THE BIZAGI SOFTWARE, YOU AGREE TO THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL OR OTHERWISE ACCESS OR USE THE SOFTWARE. IN ADDITION, BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE USING UPDATES THAT YOU MAY RECEIVE FROM BIZAGI UNDER THIS EULA, YOU AGREE TO BE BOUND BY THE ADDITIONAL LICENSE TERMS THAT ACCOMPANY SUCH UPDATES. IF YOU DO NOT AGREE TO THE ADDITIONAL LICENSE TERMS THAT ACCOMPANY SUCH UPDATES, YOU MAY NOT DOWNLOAD INSTALL, COPY, OR USE SUCH UPDATES.

  1. General. This EULA is a legal agreement between You (either an individual or a single entity) and Bizagi Group Ltd or one of its subsidiaries (“Bizagi”). This EULA governs the Bizagi Process Modeler Software and the Bizagi Studio Software, as applicable, offered by Bizagi as Freeware, i.e. available for use without payment of licensing fees (collectively, the “Software”), which includes computer software (including online and electronic documentation) and any associated media and printed materials. This EULA applies to updates, supplements, add-on components, and govern any product support services related to the Software as described in this EULA.

  2. License Grant. Under the terms and conditions of this EULA, Bizagi grants You the non-exclusive, non-transferable, non-sublicensable right to use Software on an unlimited number of computers, in object code form only during the term.

  3. Ownership.Bizagi or its suppliers own the title, copyright and other intellectual property rights in the Software, and no title to the Software or such intellectual property rights is transferred to You. Thus, You will not acquire any rights of ownership to the Software except the limited license to use the Software as expressly set forth in this EULA, and Bizagi and its licensors retain all other rights. You agree not to alter or remove the copyright notice, or any other notices of proprietary rights, that appear on and in the Software. All right, title and interest in the Software, and unless specified otherwise, in any ideas, know how, work product and programs which are developed by Bizagi in the course of providing any support and maintenance or professional services, including any enhancements or modifications made to the Software, shall at all times remain the property of Bizagi.

  4. License Restrictions. You may not modify or alter the Software in any way. You may not disassemble, decompile or reverse engineer the Software in order to obtain the source code, which is a trade secret of Bizagi. You may not lease, sublicense or otherwise rent the Software and accompanying documentation to any third-party. You are not authorized to use the Software to provide commercial IT services to any third party, to provide commercial hosting or timesharing, or to sublicense, rent, or lease the Software You may not access or use the Software in any way that is adverse to Bizagi´s then-current acceptable use policy. You are solely responsible for performing any benchmark tests of the Software, however you must not share the results of such benchmarking tests with any third party without Bizagi’s express consent. You shall notify Bizagi as soon as You become aware of any unauthorized use of the Software by any person.

  5. Term. The Software is licensed to you on a perpetual basis, meaning that Your access to the Software continues in perpetuity unless terminated as set forth in this EULA. In any case You may terminate the license by destroying the Software and accompanying documentation and all copies thereof. This license will also terminate if You fail to comply with any term or provision of this EULA. You agree upon such termination to cease all use of the Software and destroy the Software and accompanying documentation and all copies thereof.

  6. Consent to use of data. You agree that Bizagi may collect and use technical information that is gathered periodically to facilitate the provision of Software updates, product support and other services to You (if any) related to the Bizagi Software, and to verify compliance with the terms of this EULA. Bizagi may use this information solely to improve its products or to provide services or technologies to You and will not disclose this information in a form that personally identifies You.

  7. Software Maintenance

    1. Bizagi may, in its sole and exclusive discretion, elect to provide new product versions to keep the Software up-to-date, service packs, and basic technical support (no SLAs) in the manner and at those times as a new product versions, services packs, and basic technical support are provided to other users of the Software. Any new product versions or service packs that are provided will be deemed to be part of the Software and subject to the terms of this EULA. Basic technical support can be accessed via the community user forum available at the following links: Bizagi Modeler:https://feedback.bizagi.com/en/ and Bizagi Studio: https://feedback.bizagi.com/suite/en/

    2. Updating the Software may require updates of software not covered by this EULA prior to installation. Any such updates of the operating system and application software not specifically covered by this EULA are Your responsibility and will not be provided by Bizagi. Bizagi’s support under this section are contingent upon your proper use of the Bizagi Software and your compliance with the terms and conditions of this EULA at all times.

    3. If Bizagi elects to provide You with Technical Support, it will be your sole responsibility to: (i) comply with all Bizagi-specified operating and troubleshooting procedures and then notify Bizagi immediately of Bizagi Software malfunction and provide Bizagi with complete information thereof; (ii) provide for the security of your confidential information; (iii) establish and maintain backup systems and procedures necessary to reconstruct lost or altered files, data or programs.

  8. Disclaimer of Warranties.

    1. BIZAGI SOFTWARE MAY BE INCOMPLETE AND MAY CONTAIN INACCURACIES OR ERRORS THAT COULD CAUSE FAILURES OR LOSS OF DATA. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.

    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND BIZAGI AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BIZAGI DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BIZAGI OR A BIZAGI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

  9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BIZAGI OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS, DATA, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

  10. Export Restrictions. The Software may be subject to export control laws and regulations of the U.S. and applicable countries, including but not limited to regulations of the U.S. Bureau of Export Administration, prohibiting export of goods, directly or indirectly to “embargoed” countries. You will ensure that a) the ultimate destination of the Software is not a destination in violation of any such law or regulation; (b) the ultimate end-user is not a person or entity on the “denied persons list” and (c) the end-user intended use does not violate any regulations regarding Diversion, Nuclear Proliferation, Missile Technology or Chemical or Biological Weapons.

  11. Excluded Services. This EULA shall not apply to your use of software, cloud services, or professional services (“Excluded Services”) that you purchase from Bizagi. All such Excluded Services are governed exclusively by the terms of the agreement that you have executed that covers such Excluded Services.

  12. Miscellaneous.

    1. Severability. If any provision of this EULA is invalid or unenforceable under applicable law, then it shall be, to that extent, deemed omitted and the remaining provisions will continue in full force and effect.

    2. Monitoring/Audit. Bizagi shall have the right to monitor and audit your use of the Software upon reasonable advance notice, by any means, including, without limitation, remote means, to verify your compliance with the terms of this EULA. You shall be responsible for ensuring that your employees and independent contractors comply with the terms of this EULA.

    3. Governing Law. This EULA, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with (a), if you downloaded the Software in the United Kingdom, the laws of England and Wales; (b) if you downloaded the Software in Germany, the laws of Germany; (c) if you downloaded the Software in Spain, the laws of Spain; (d) if you downloaded the Software in Colombia, the laws of Colombia; and (e) if you downloaded the Software in any other location, the laws of Delaware in the United States, in each case without reference to the principles of conflicts of law that would apply the substantive laws of another jurisdiction. The application of the United Nations Convention on Contracts for the International Sale of Goods to this EULA is hereby expressly excluded.

    4. Entire Agreement. This EULA sets forth the entire understanding and agreement between You and Bizagi.

    5. Assignment: You shall not assign this EULA without the advance written consent of Bizagi. However, Bizagi may assign this EULA in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets. Any attempt to transfer or assign this EULA except as expressly authorized under this section, will be null and void.

    6. Force Majeure: Neither Party will be responsible to the other for any failure or delay in its performance due to acts of God or other unforeseen circumstances beyond the reasonable control of either party, provided that such Part gives as reasonable as practicable written notice thereof to the other party and uses its diligent efforts to resume performance.

    7. Survival: All Sections of this EULA that by their nature must survive the termination or expiration of this EULA, including without limitation Sections 3 (Ownership), 8 (Disclaimer of Warranties ) and 9 (Limitation of Liability) shall survive any termination or expiration of this EULA.

    8. Marketing: You acknowledge and agree that Bizagi may (i) include the name and logo of the entity that You represent in a list of Bizagi’s Customers to publicize the execution of this EULA, (ii) refer to the name and logo of the entity that You represent on Bizagi’s website; and, (iii) refer to the name and logo of the entity that You represent in marketing materials.